Politicians around the country have taken swift action to address the COVID-19 pandemic. But their all-hands-on-deck reactions have also exasperated climate change activists, who can only dream of the same urgency being applied to the arguably more deadly and far-reaching climate crisis.
But the pandemic does have something useful to teach the climate movement: How the courts might respond to intrusive but life-saving interventions.
Courts have on occasion enabled massive changes in societal structure before politicians were ready to, including school desegregation in Brown v. Board of Education and the more recent ruling on marriage equality. Moreover, judicial decisions have strength: Once legal precedent is established, it can be used by attorneys to shape subsequent cases. Furthermore, that precedent is binding on all courts lower than the deciding court, and highly persuasive to courts in other jurisdictions.
For these reasons, climate attorneys should be paying special attention to three distinct types of COVID-19 lawsuits, which could make the (literal) case for bolder action on climate.
First, the “failure-to-protect” suits that claim the government isn’t doing its job in protecting the most vulnerable. Second, the misinformation suits that claim that media outlets are lying to the public about COVID-19 facts. And third, takings suits that claim government shutdowns are robbing people of property rights without just compensation.
Ignoring known threats
Over the last two months, numerous pandemic-related lawsuits have been filed by civil libertarians and prison reform advocates against correctional authorities all over the country, from Los Angeles County to Kentucky to Connecticut. These suits seek the release of certain incarcerated persons from prisons to reduce their risk of contracting COVID-19. They have been filed on behalf of people held in jails on small bonds for nonviolent crimes, those to be released imminently from prison, and people at high risk of life-threatening complications, including those with autoimmune conditions and the elderly. These plaintiffs generally argue that deliberately putting them at risk of certain, but avoidable, bodily harm violates their Constitutional rights.
The pandemic has something useful to teach the climate movement: How the courts might respond to intrusive but life-saving interventions.”
The theory that governments have failed to protect people from known threats has been used—unsuccessfully so far—in climate suits. The most notable case is Juliana v. United States, where the plaintiffs—mostly children—claim that the federal government engaged in affirmative conduct by implementing an energy system that it knows harms youth. Indeed, the history of warning signs about a warming planet goes back more than a century—far longer than we have known of the dangers of COVID-19. Yet so far, the Juliana plaintiffs have failed: The Ninth Circuit recently dismissed their suit. (They have appealed.)
If any COVID-19 lawsuits are successful, the legal precedent created may support a more generalized type-of-harm claim for climate activists in the future.
Holding media accountable for misinformation
The theory that misinformation disseminated by news media is actionable in court should also be watched by climate attorneys.
One pandemic-related suit that has received national attention is a complaint brought by a nonprofit against Fox News and several other defendants in Washington state court. The nonprofit alleges that, by misleading viewers about the true impact of the deadly virus, Fox News violated the state’s consumer protection act and committed the tort of outrage.
Despite overwhelming consensus among scientists that humans are the leading cause of climate change, news outlets often have displayed intentional or reckless disregard for the facts. If courts find disregard for COVID-19 facts to be actionable, perhaps the media will be held to a higher standard and climate activists can combat the denialism that persistently plagues the climate debate.
Government property grabs
Several takings suits already have been filed against local and state governments. The plaintiffs include business owners closed by public orders and employees who have lost their jobs as a result. They argue that by forcing businesses to close to slow the spread of COVID-19, governments have violated the takings clause of the 5th Amendment.
Generally speaking, the Fifth Amendment requires governments to compensate those whose property has been taken for public use. This includes not just eminent domain but also “regulatory” takings. But courts have long held that if a government regulates to prevent a public nuisance—for instance, the spread of a deadly and fast-moving disease — compensation will not be required.
So, barring novel arguments that resonate with courts, COVID-19 takings challenges will be unsuccessful. Yet they are still worth watching. If courts reject longstanding interpretations of the 5th Amendment and allow the plaintiffs to obtain compensation for the economic disruptions that they have faced, it’s time to worry.
In the future, climate activists are near-certain to need courts to uphold far-reaching actions needed to reduce carbon emissions into the atmosphere. These actions could include the shutdown of entire industries, such as fossil fuels or beef cattle, or production bans on certain products, such as gas-guzzling SUVs. Climate action might also involve limitations on energy or water consumption, which could be disruptive to our daily lives. As we have been hearing for decades from scientists, the longer we wait to take action, the more extreme future measures will have to be to save humankind.
We have all learned from the pandemic that changes in behavior can have dramatic and life-saving effects. We have bent the curve of COVID-19 infections, and our stay-at-home strategy appears to have worked, saving tens of thousands of lives. When it comes to climate action, though, individual changes in behavior may not be enough. We may need to turn to the courts. And it’s important to know how the courts will respond to government action (or inaction) when that time comes.
An earlier version of this article stated that the plaintiffs in Juliana v. United States claimed the federal government failed to protect children from climate change. The plaintiffs are challenging the government’s affirmative conduct in implementing an energy system that knowingly harms youth.
Sara C. Bronin is a law professor who runs the UConn Center for Energy & Environmental Law. An extended version of this essay was published in the Stanford Law Review Online.