Can Lawyers Save The Planet?
THE FUTURE OF CLIMATE LITIGATION WITH MICHAEL GERRARD
Can lawyers save the planet? I asked the world’s foremost climate lawyer.
MEETING MICHAEL GERRARD
Michael Gerrard is a globally-recognised leader in environmental law and a passionate lifelong advocate for sustainability. He is Professor at the Columbia Law School and Founder of the Sabin Center for Climate Change Law. He has tried numerous cases in Federal and State courts, and authored or edited more than 13 books on climate law, the most recent of which is Legal Pathways to Deep Decarbonization in the United States.
What a privilege it was to spend time with him! In his book-lined office at Columbia University, we discussed the current status of climate litigation, what’s next, and the role it will play in changing the behaviours of greenhouse gas emitters and securing the future of our planet. He generously allowed me to record our conversation.
CHECK OUT THE PODCAST TRANSCRIPT →
LIFELONG ADVOCATE FOR SUSTAINABILITY
The genesis of Michael’s passion, as I learned during our conversation, goes all the way back his childhood in Charleston, West Virginia, where he encountered high levels of air pollution and water pollution, courtesy of the petrochemical industry. I was deeply impressed by his personal journey, his successful litigations against hazardous waste polluters, and his advocacy on behalf of Pacific nations such as the Marshall Islands under existential threat from climate impacts.
I recommend reading it as a case-study for anyone interested in environmental leadership, or pathways to leadership more generally. This is a man who has, unquestionably, dedicated his entire professional life to “making a difference.”
HOW BIG A LEVER?
My big pressing question was how big a role climate litigation can play as a lever for behavioural change to preserve our future from the fast-looming and dire consequences of climate change. A line I had seen on Michael’s website when preparing for our meeting asked this more succinctly: “Can lawyers save the planet?”
Climate law is unfamiliar territory for me, but with the number of high-profile lawsuits hitting the headlines recently, I hoped, perhaps in one of these precedents, to discover some big looming legal “stick” to smash through corporate and government resistance and up the pace of emissions reductions.
Short answer: no big stick, no big magic bullets. More like a spray of small ones.
JUSTICE DELAYED IS ACTION DELAYED
The Sabin Center tracks thousands of climate lawsuits all of other world. Some are targeted at corporations, some at governments. They are fought at city, state, federal and international levels. Court of appeals and high courts.
On numbers alone, it looks like a court-ordered sea-change is coming to force big emitters to recalibrate. But as I learned early on in our discussion, the majority of these suits are brought by emitters, not climate advocates, with the purpose of challenging greenhouse regulations!
As for the others, drawing from the classic legal playbook, the defendents are consistently delaying, postponing and delaying again. Appeal after appeal. Year after year. The multi-year delays achieved through appealing the jurisdiction where cases are heard seem to me particularly egregious.
For the big emitters, a delay is as good as a win – if you can call selling out the biosphere and our children’s future a win.
Furthermore, when it comes to getting money damages from fossil fuel companies, at time of writing there have been no successful lawsuits anywhere in the world. None.
And probably not one ruling has forced ANY truly meaningful behavioural change with respect to reducing greenhouse gas emissions. Not the big one against the government of The Netherlands in 2019, not the one against Shell in 2021. Again, none.
Yet.
The lawsuits are mutiplying.
CLIMATE LITIGATION PRESSURE COOKER
After interviewing Michael, I came away with an overwhelming mental picture of climate litigation as a steam-filled pressure cooker of cases, cases, building, building. They are building precedents. Building knowledge, learning from one another. They are becoming more creative, diversifying, attacking greenwashing and other forms of climate fraud.
They are building social capital by educating plaintiffs and members of the public and – as Michael points out – judges. They are forcing insurers and underwriters and investors to start at least CONSIDERING damages claims in their calculus.
They are building to a point where there will come, eventually, a break: the first big damages verdict. Awarded. Appealed. Awarded again. And finally, upheld. To be paid in cash or, if it goes that way, bankruptcy.
And then the dam breaks …
IT’S ABOUT THE DOLLARS
The exponential global take-up of grid-scale solar and wind was never driven by altruism, it was driven by price. Whatever this says about the wisdom or otherwise of homo-sapiens, we have to accept the reality.
I’ve learned this again and again in my work. Hard-nosed investors who I presented to in the past couldn’t care less about whether their profits came from coal or for how long, but when they saw the bigger profits were in solar – bam, they flipped the switch. Instantly. When the dollars became real, behaviours followed.
Climate litigation is also a financial lever, though it might not look like it yet. At some point, perhaps in 2025 or in 2030, we’ll see that breakthrough ruling, and then, based on what I learned from Michael, an explosion of copycat filings, and then suddenly it’ll be front and center and a truly big catalyst for global behavioural change.
Soon enough? No. Fast enough? No. Not for me and not for Michael. Not even close. Still an important lever? Yes. Vital. Not nearly as powerful as the profit incentives will continue to be in driving the shift to renewables, but it will have some impact in shifting the recalcitrants.
That impact might become significant. It might not. Regardless, we must drive the process hard, as hard as we can, because with the amount of CO2 already up and not coming down for hundreds of years (some of it up there for thousands) and the annual contribution still going up, the inertia already in the climate system is all but certain to blow anthropogenic warming through 2 degrees and most likely 2.5 degrees as well.
Considerable human suffering and mass population displacement is now ‘locked in’ to our future. If the weight of litigation shaves that by even a tenth of a degree, and it will surely do much better, every lawsuit ever filed will have been worth it.