David Markell and J.B. Ruhl, An Empirical Assessment of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?

64 Fla. L. Rev. 15 (2012)| | |

With the demise of climate legislation in Congress, and the Supreme Court’s rejection of climate-related lawsuits brought under federal common law, rapt attention has turned to the Environmental Protection Agency’s (EPA) efforts to bring greenhouse gases into the regulatory fold. Certainly, as the works in this special issue of the Florida Law Review demonstrate, EPA is not the only important player in the climate arena; indeed, as I will reluctantly suggest, the Agency’s efforts here appear to be waning rather than waxing. Even so, before turning to other aspects of the problem of climate change, discussed in other works in this issue, it is worth taking stock of where EPA is now, how it came to this point, and how it might proceed from here.

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is the first to fill those gaps and assess the state of play of climate change in the courts. It concludes that the story of climate change in the courts has not been one of courts forging a new jurisprudence, but rather one of judicial business as usual.

Part I of the Article outlines the scope of climate change litigation, explaining what qualifies as climate change litigation in our study, our methodology for identifying and coding case attributes, and our typology of the claims that have been or likely will be made as climate change moves relentlessly forward. Part II then presents and assesses the major theme revealed from our empirical study and largely missing from commentary on climate change litigation-that a siege-like battle between “pro” and “anti” regulation interests has led to an increasingly robust and complex litigation landscape but with mixed results for both sides. Drawing from those findings, Part III takes on a set of empirical and normative questions designed to summarize and assess the climate change litigation experience and its impacts on the content and institutions of climate policy. It is evident at all levels of inquiry that courts have taken a “business as usual” approach to climate change, resisting litigants’ attempts to make courts a locus of direct policymaking, but courts nevertheless have influenced the policy content and its institutional contours dramatically. We extract these themes from the full experience of climate change litigation and suggest fruitful paths of research to develop a better understanding of the role and impact of the courts in the climate change policy arena. Part IV then stretches a bit from the confines of our empirical study and findings to speculate about the future of climate change litigation.

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