Michael Gerrard Interview Transcript
Bruce McCabe: So, Professor Michael Gerrard, Columbia University, do we say Sabin?
Professor Michael Gerrard: Sabin.
BM: Sabin. Sabin Okay. Sabin center for climate change law, which you founded.
MG: That's right.
BM: You're also the author of, I believe, or editor of 13 books on Climate Change law. I'm looking up such a collection here in your office. Thank you for your time. We're here to talk about climate change law and where we're going with that, and look, such a pleasure. For me, it is a departure from a lot of my usual fare concentrating on the science of climate change, and technology solutions, but it seems that litigation and legal pathways can potentially play as much or an even more important role in changing our behaviors, and that's what I really wanted to explore with you today by starting with a premise, I guess I saw on your website, which is, “Can lawyers save the planet?” How big a role can lawyers play?
MG: Well, not on our own, we can't save the planet, of course, but in many other ways, we can. And lawyers do several things. We litigate, we write the laws and regulations, and we handle transactions and all three of those have their own important roles to play in different roles in different places. Ideally, we would have the US Congress and the parliaments all around the world, adopt very strong climate change laws. That would be the best approach. Almost no countries have done that. The United States had not passed a major new environmental law since 1990, until August of 2022, when Congress passed the Inflation Reduction Act, which was all carrots-no sticks, it threw a huge amount of money at clean energy, but adopted almost no new regulatory programs and stayed away from many of the techniques that economists and policy analysts and so forth said would be most effective, like a carbon tax, but it is throwing a huge amount of money at clean energy. Hopefully it will be spent and spent well. We'll see in the years to come, so.
BM: So that's the regulatory side of it?
MG: That's the legislative side of it.
BM: Legislative side of it.
MG: That's right. And on the regulatory side, several years ago, another law professor, John Dernbach and I put together a very large book called Legal Pathways to Deep Decarbonization in the United States. Yes, about 1200 pages, more than 1000 specific recommendations for federal and state and local, action to reduce greenhouse gas emissions, following from that, we've set up a project called the Model Laws for Deep Decarbonization project, where we've recruited several dozen law firms all working pro bono to draft the model laws that are recommended by the book, and these cover a broad array of moving to clean energy, having more energy conservation, carbon dioxide removal, and these are being drafted and we're hoping that state legislatures and city councils will adopt them. So that's another important role that lawyers can play.
BM: What sort of the reaction are you getting out of governments to what you're doing so far with that?
MG: The reaction is, they love the theory, but they are not moving as quickly to adopt the rules as we had hoped. There are powerful economic interests that are pushing back against any regulations that will constrain their ability to act, there's a great deal of support for voluntary actions, but as soon as you begin to tell companies what they have to do or require governments to spend a lot of money, there's a lot of pushback.
BM: And does it also expose governments to their own ... add exposure to themselves by signing up to that, because it forces, puts them in a position where they have to act or be in contravention of their own legislation, does it not?
MG: Well, the governments don't have liability in the sense that because of the doctrine of sovereign immunity, they can't be held financially liable, but if they adopt binding laws, those can be enforced in court if they're written in the right way, and governments as well as companies are reluctant to allow that to happen.
BM: Yeah and what about lawsuits under existing law, environmental law, they're on the up, we see them doubling and re-doubling out there in the world.
MG: Yeah we track all of the climate change lawsuits in the world. We've found about 2000 around the world, of which 72% are in the US. The US is by far the champion, but not all of those are really pro-environmental, many of them are lawsuits brought by industry challenging regulations.
So in the US, the most important, the most consequential litigation has been against governments for not following existing law, the most important US case was Massachusetts versus EPA from 2007, in which the Supreme Court said that the Clean Air Act authorized the Environmental Protection Agency to regulate green house gas emissions, the president of the time, George W. Bush said it didn't. The Supreme Court said that it did. President Obama then used that authority to adopt a series of regulations, so that was a very important lawsuit.
Under former President Trump, the administration tried to cut back and to weaken many of the environmental regulations, the courts played a very important role there in saying he had gone too far, he hadn't followed the necessary regulations, so the courts were very important there, the courts have also been important in the US in stopping the construction of coal-fired power plants and pipelines and other fossil fuel projects because they violated some environmental laws.
BM: Yeah.
MG: What the US courts have not done, is to use the sorts of theories that are being successful in other parts of the world, human rights theories, constitutional theories and others. We've seen tremendous success in some other countries in use of those theories, the most prominent and one of the first, was your Urgenda case in the Netherlands, where the Supreme Court of The Netherlands said that under human rights theories and other doctrines, the government had to force a very significant reduction of greenhouse gas emissions. We've seen successes in similar theories in Germany, France, Nepal, Brazil, the Netherlands and a number of other countries. Around the world it's having some success, but the US courts have not been sympathetic to that kind of theory, and to the US Supreme Court with a six to three conservative majority, gives us a little hope that this will succeed in the US, at least at the federal level, for years to come.
BM: So in the US, would it be fair to say that the most profitable pathways forward, if you're going to think about the role of litigation in climate change, not at that federal level, but perhaps at a more localized level on a corporation by corporation level, suing an individual corporation for the damages caused to a particular city like Miami, for example, which is facing enormous consequential costs, would that be a more profitable way forward?
MG: We don't know yet, there are about 25 lawsuits in the US that had been brought mostly by cities and states against fossil fuel companies. They've all been held up on the question of whether they belong in federal court or state court. For various reasons, the plaintiffs all wanna be in state court, the defendant oil companies all wanna be in federal court.
BM: Okay.
MG: This question has now been presented in a case to the US Supreme Court. The Supreme Court will decide in the next few months whether to take the case. If it takes the case, we'll probably have a decision sometime in the Spring. Meanwhile, I think all these cases are likely to be put on hold until the Supreme Court decides, so if the Supreme Court doesn't take the case and allows these cases to proceed in state court, we'll see a lot of activity, but if they have to stay in federal court, there's also a decent chance. The Supreme Court will use various doctrines to say there are no good and throw them out … But we'll know in the next several months [laughter]
BM: That's interesting. So a lot of people... A lot of the litigants, or is it the judges that choose to just to hold off because a precedent is about to be set?
MG: Yeah, I think the defendants, they already have asked the judges around the country to hold off on these lawsuits until we hear from the Supreme Court, and it's easier for a judge to hold off on making a decision than to make a decision. So we'll see what happens with that. There may be some progress in some states under the state constitutions, so there's a trial that has been scheduled for next July in state court in Montana, in a lawsuit brought by a number of young people under the State Constitution of Montana, saying that the state government needs to move away from its fossil fuel-friendly policies toward clean energy. So it'll be very interesting to see how that plays out. Several states have constitutional rights to a clean environment in their state constitutions.
BM: I see, I see.
MG: New York adapted one just last November, by a vote of 2 to 1. The voters of New York adopted a constitutional right to a clean environment in New York State. No one knows just what that means. That will be the subject of many lawsuits, and we'll find out.
BM: So one of the things here is time. There are so many reargard actions and delaying tactics available as we appeal and then appeal again just in the location or the jurisdiction for which the trial is to be held, and that's multiple years even in that process.
MG: That's right, this new round of litigation began in 2017, so five years later we still don't know whether they belong in state court or federal court.
BM: Yeah, yeah. From what I know about the law, this is almost a default tactic, if you wish to, sort of if you’ve got more money, if you're a big corporation, delay, delay, delay, as long as you can, that would be the standard response.
MG: Oh absolutely. Absolutely. With a good deal of success. And there are a lot of excellent lawyers on both sides of these cases, so they go on a long time.
BM: Yeah. So the challenge also seems to me partly around the ... If we are looking at damages, we're suing for damages which have not yet happened. Some of them have happened, but is it fair to say that a lot of the litigation is about future damages?
MG: Well, actually, these kinds of cases are seeking money for adaptation to the climate change that is happening, and that is coming. It's to allow the cities to build sea walls or elevate buildings or fix their infrastructure or take other actions in order to prepare for and guard against the climate change damages that are coming, as opposed to the, what we think of conventionally as money damages for injuries already suffered. And there have been no successful lawsuits anywhere in the world so far getting money damages from fossil fuel companies. There is a case pending in Germany brought by a farmer in Peru, who says that his farm is being damaged by the melting of the glaciers, and that 0.5% of the greenhouse gases in the atmosphere came from a big German utility, RWE... So he's suing RWE for 0.5% of his losses in his farm because of their emissions.
BM: Interesting.
MG: So that case is going forward. It survived initial motions. The judges from Germany just traveled to Peru to see the glaciers. They planned to do it a couple of years ago, but they were delayed by the pandemic, but now they've gotten there and we'll see... We'll see what they... So that's the case that has gone the furthest in seeking money damages.
BM: So going back to that, what you just said a second ago, though: None have actually been successful in awarding damages—existing damages today. None of them.
MG: That's right.
BM: Okay, so early days isn't it, in this whole process?
MG: And we don't know whether they will succeed. We'll see what happens in the US. We'll see what happens in this Peruvian case against the German company. There's been much more success in orders of requiring governments to require reductions in greenhouse gas emissions within their countries. And there's an important case pending in the Netherlands where the trial court told Shell Oil to reduce its emissions. That's now under appeal. We'll see how that goes.
BM: Yeah, and now there's a time delay thing. But ‘consequences’ are a big word in this, and the first one that does award damages will probably have quite an impact because it becomes real, it becomes monetary and tangible for corporations or governments or whoever's being sued, would that be fair?
MG: Yes. Just as the Dutch case, the Urgenda case that required the government to reduce emissions, had a global impact and inspired many lawsuits around the world. If any of these cases for money damages succeed, that will also have a big impact. It's also making a lot of companies and financial institutions nervous, and we hear all the time from insurance companies and banks trying to assess, what is the litigation risk? What is the risk that the people we insure, or finance, are going to be held financially liable for climate change?
And the short answer is, we don't know because nobody has yet. But if somebody does become liable, that then has a big effect on the financial system in trying to make sure that their borrowers or their insurers do what they can to lower their liability by reducing their contribution to climate change.
Exactly the same thing happened a couple of decades ago with hazardous waste. Laws were passed, imposing liability on companies that had anything to do with hazardous waste, and as a direct result of that, we have much less hazardous waste being generated now and much greater care being exercised in handling the wastes that is still generated because of this liability fear.
BM: Can I ask you to sort of look into the crystal ball a little bit, and get speculative, which is probably not professionally comfortable for someone in the law, but just thinking forward, are there... Do you see these kinds of various phases? What do you think the next 10 years looks like? In terms of global litigation, the successes, that first precedent, or what could it look like if things went well?
MG: So, as we know, the governments of the world have uniformly failed to take adequate action on climate change both at the administrative level and the legislative level. So people use every tool they can find and the courts are one of those tools. I see an increasing volume of lawsuits brought, there are many lawyers around the world who are working on that, who are trying to come up with new theories for lawsuits, so I think we'll see a lot more of these lawsuits brought. We're seeing that some judges are very sympathetic to these lawsuits, other judges are not, but the sympathetic judges are beginning to issue strong opinions.
As the years go by, and more of these judges themselves are pressured by their children or grandchildren about taking climate change more seriously, I think we may see more decisions and more countries around the world that do require stronger action on climate change. So I think that lawsuits will play an increasing role in the fight against climate change. They are not going to be the most important solution, but they are one important element moving in that direction.
BM: Okay, so the way I'm sort of picturing it is almost like a pressure cooker. We're getting through legal channels, we're building the pressure in many places, at many levels, and at certain points, the ‘financials’ around that pressure, the risk around that, from the underwriters and insurers and various people in supply chains, just gets to the point where behaviors start to change from a purely exposure perspective, a legal exposure perspective.
MG: Yes, I think that's a fair way to put it. Another thing I would say is that so far, one effect of the pressure on companies is that they make pledges. they make promises, but we know that much of this is green washing. Saying that a company is going to have net zero by 2050. I could say that I promise to lose 30 pounds by 2040. Okay, what does that mean? So we have many of these fairly meaningless pledges, and another growing kind of lawsuit is lawsuits challenging the green washing, challenging the deception ...
BM: I was going to ask you about that.
MG: … by some of these companies. And so we have several of those pending in the US, none of them have progressed very far, but they're new. We're seeing it elsewhere in the world, several of these green washing lawsuits have been brought against airlines, against auto companies, against grocery store chains saying that if a company is making a promise, it has to carry it out and it has to demonstrate on a stepwise basis how it's going to do it, and they have to show that their corporate executives have their compensation keyed to fulfilling these promises and so forth, so this pressure is coming from lots of places.
BM: Yeah. One that particularly inspires me is also when you look at shareholders taking action, it doesn't have to be legal action, it can be just removing board members and there's personal consequences there, but on the basis that future earnings are being imperiled by this lack of action from a board, and it seems that class action lawsuits would be... From an investor perspective, it would be a possibility as well.
MG: Well, this is another area where it's hard to sue over future damages. There have only been a few lawsuits against companies by shareholders on these theories, none of them have progressed very far. We have seen some successful shareholder actions. Three members of the board of Exxon were replaced by this insurgent group. We have not yet seen a change in Exxon's actual behavior as a result of that, we'll see what happens, but Exxon are certainly not getting out of the oil and gas business. But all of this is certainly putting pressure on lots of different companies and also encouraging clean energy companies to go forward.
BM: Okay. Yeah, that's the key, the behavioral change. So gradual... It's a gradual process here.
MG: And the danger is that it's too gradual.
BM: Absolutely.
MG: Because we're running out of time, arguably, we have run out of time, and we need to have the transition as quickly as possible.
BM: Would there be any messages you would add to the sort of people that I reach. They're business people generally, but also government people all around the world. A lot of them are not specialists in law. Are there things that you feel people should know about? Or misconceptions out there about the role of litigation in climate change?
MG: Well, I think that there are many different legal strands that are all pushing at the direction of clean energy, I think there are energy efficiency laws, there are laws on requiring electric utilities to provide a certain amount of their electricity from clean sources and increasing amount of electricity. This new Inflation Reduction Act from the US putting hundreds of billions of dollars into clean energy, other actions elsewhere in the world. The pressure on financial institutions, the holding companies, to the pledges that they make. All the vulnerability that fossil fuel operations like pipelines and power plants have to, the intense litigation they all face. All this adds up to a significant pressure to move toward clean energy and to try to reduce the amount of energy we consume.
BM: So just to close us out on a more personal note, can you tell me a little about how you got to where you've got, because you're now so focused on this particular area, what was your personal journey to this point?
MG: Well, I grew up in Charleston, West Virginia, which is a town dominated by the petrochemical industry, so we had very high levels of air pollution and water pollution when I was a kid. I came to New York to go to college but wrote my senior thesis on the politics of air pollution.
BM: Interesting.
MG: I was here in college in the first Earth Day back in 1970, and became interested in the...
BM: Really? [laughter]
MG: I covered the first Earth Day for the Columbia Daily Spectator...
BM: Oh, wonderful.
MG: …when I was a student journalist, and I worked for an environmental group after I graduated from college and saw that some of the most effective work was being done by lawyers, so I decided to become an environmental lawyer. I entered law school back in 1975, to become an environmental lawyer.
BM: So From the outset, when you entered law, that was where you wanted to be. Environmental law.
MG: That's right. But in the late '70s and '80s, when I was a starting lawyer, most of environmental law practice was about air pollution and water pollution and waste disposal, by the late '80s a lot of scientists were trying to sound the alarm about climate change, but most environmental lawyers, including me, weren't paying attention. By the early 2000s, more attention was being paid, I started focusing on it. I edited a book called Global Climate Change and US Law, which was published in 2007, the first US book on the subject, and decided I really wanted to devote myself to fighting climate change, and the opportunity unexpectedly arose to become a law professor at Columbia and found a center on climate change law, so I made that move in 2009, and so since 2009, that has been my focus.
Can I add one other thought that if you can catch in?
BM: Go for it.
MG: I now have two little grandchildren. One born in 2018, one born in 2020, they should both still be around in 2100, and I worry deeply about what kind of world they will grow int. That's additional inspiration for me to work on climate change.
BM: Yeah, yeah, absolutely. It changes, this doesn't it? Once we look at the children and the grandchildren.
MG: That's right.
BM: Changes everything.
MG: So I won't be around for the worst of it, but they might be.
BM: Maybe we could legislate that everyone has to have children in high places, so they have a vested interest in the future's world.
MG: But not too many [laughter].
BM: Wow. Well, that is a very inspiring story. I keep coming across in the science community, people have dedicated their professional lives to one cause, and I find that inspiring and I try and share those stories with my audiences on that basis, but I think I found another inspirational story in a whole different field and one that matters just as much. So Professor Michael Gerrard, thank you for your time and thank you for making time to see us on our travels, and I will do my best to share your messages with my audience as well.
MG: My pleasure to be with you.
BM: Excellent. Thank you.
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