Global Warming and Pollution Concept - Sustainability (Elements of this image furnished by NASA)Introduction:

Environmental litigation is fairly common in many cases. A particular phenomenon brought about by fossil fuels or greenhouse gases is alleged to have caused a certain type of injury and damages are sought. Many companies have been the targets of such lawsuits. Some states have even been defendants. What was unchartered territory, until recently, is for citizens to sue the US federal government, naming it as the responsible party in climate change litigation.

Discussion:

In an article entitled “This climate lawsuit could change everything,” The Washington Post explains, “A groundbreaking climate lawsuit, brought against the federal government by 21 children, has been hailed by environmentalists as a bold new strategy to press for climate action in the United States.” Chelsea Harvey, “This climate lawsuit could change everything. No wonder the Trump administration doesn’t want it going to trial,” The Washington Post, Mar. 9, 2017.

The lawsuit, which was first filed during the Obama Administration, has been successful on smaller scales. States have endured lawsuits regarding whether or not they contributed to environmental degradation, but the federal government has never before been named a defendant. As The Washington Post expresses, “The lawsuit — the first of its kind — argues the federal government has violated the constitutional right of the 21 plaintiffs to a healthy climate system.” Id.

The implications of such lawsuits could be staggering, depending on how they are handled. To wit, “Environmental groups say the case — if it’s successful — could force even a reluctant government to reduce greenhouse gas emissions and take other measures to counter warming.” Id. Indeed, the thrust of the lawsuit seems to be on whose fault it is for the dangerous environmental risks caused when various toxins are released into the atmosphere, such as carbon, greenhouse gases, and the like. Never before has a plaintiff, much less a group of plaintiffs, laid the blame at the feet of the federal government.

This case is unique in many respects, and the plaintiffs’ grounds for recovery will involve many complicated legal and scientific theories. The legal director of the Sierra Club, Pat Gallagher, is not involved in the case but explains its enormity: “It would be huge. It would upend climate litigation, climate law, as we know it.” Id. The idea of whether the federal government should be held liable for environmental degradation has not been pursued legally in the past and, indeed, if such a theory were accepted, it could change the entire face of climate and environmental litigation as we know it.

Who would determine whether the plaintiffs’ theories will fly? As one analyst expressed, “The 21 plaintiffs, now between the ages of 9 and 20, claim the federal government has consistently engaged in activity that promotes fossil fuel production and greenhouse gas emissions, thereby worsening climate change. They argue this violates their constitutional right to life, liberty and property, as well the public trust doctrine, which holds that the government is responsible for the preservation of certain vital resources — in this case, a healthy climate system — for public use.” Id. The theory is new, and the success or failure of this case could mean much for the field as a whole.

Whether the plaintiffs’ theory succeeds or not, the success of the lawsuit—so far, is also groundbreaking. Legal analysts have discussed this matter and although “legal experts are uncertain as to the lawsuit’s likelihood of success, few have disputed its pioneering nature. Similar cases have been brought on the state level, but this is the first against the federal government in the United States. And in November, the case cleared a major early hurdle when U.S. District Judge Ann Aiken denied motions filed by the Obama administration, as well as the fossil fuel industry, to have the lawsuit dismissed, ordering that it should proceed to trial.” Id. Not only does this case potentially have implications in terms of what domestic litigation will succeed it, but there are also international consequences. When it was allowed to proceed, “[t]he move allowed the case to join the ranks of climate lawsuits filed in other nations, which could upend the way environmental advocacy is conducted around the world.” Id.

What will determine the success or failure of this and any other litigation that proceeds along similar theoretical lines? Savvy attorneys, certainly, but of even greater import are expert witnesses. Because this case is unprecedented, the courts cannot turn to case law or even legislation to sort out whether the theories it encompasses can succeed. Instead, judges and jurors will have to rely on the scientific and specialized knowledge of the experts in order to form educated opinions on the matter. For this type of lawsuit, several kinds of expert witnesses will be of great utility. Environmental experts are clearly needed, but there will be room for more specialized witnesses as well, such as experts in issues like fossil fuels, fracking, climate and greenhouse emissions, and the like. Experts on government and executive agency actions and guidelines will also come in handy, as will economic experts, to assess damages. Each phase of this kind of litigation will require an expert: from proving causation to determining the question on everyone’s minds: whether the federal government is a legitimate defendant and is, in fact, capable of being sued in this manner. If there are international implications, international legal experts will also come into play and be called for.

Conclusion:

Because of the vast amount of science and complex theoretical knowledge required at every stage, consulting and testifying expert witnesses will be kept busy on both sides of the equation in cases of this nature.  Environmental law attorneys should be prepared for these theories and retain qualified experts early and throughout the litigation process. These expert opinions may literally spell the difference between success and failure in a case of this nature and a theory of this magnitude. Whatever the results, the implications will be felt across the country and around the world.