US’s climate legal cases boom, but not its laws
The number of climate-related laws passed in the US slipped substantially during the Trump administration at the same time as a surge in litigation that challenged proposed environmental regulations, according to new data.
US laws related to curbing climate change, as well as policies and legislation promoting a move to a low-carbon society, increased for several years in the run-up to the Paris climate agreement, according to the Climate Laws database compiled by researchers at the London School of Economics.
But that trend reversed when Donald Trump took office in 2017. The Trump era was marked by climate deregulation and the roll back of policies aimed at limiting global warming and imposing stricter obligations on polluting companies. The US is the world’s largest emitter of greenhouse gases historically.
While the US has 31 climate laws and policies, it has 1,426 litigation cases, according to the data. The UK, by comparison, has 51 laws and policies and 81 legal cases.
In Europe, meanwhile, as societal concerns about the effects of climate change accelerated, the number of laws and policies passed in the region climbed and peaked at 81 in 2020.
There are more than 2,600 climate change laws and policies worldwide, according to the LSE database.
Most recently, Greece passed its first climate law, that requires it to cut greenhouse gas emissions by at least 55 per cent by 2030, and aims to curb the burning of coal for energy. Finland also last week upgraded its climate change act, passing legislation that would see it reach carbon neutrality by 2035 and set the world’s first legally binding goal to be “carbon negative” by 2040.
By contrast in the US, the Biden administration has so far failed to pass its flagship “Build Back Better” package of climate legislation owing to opposition from Republicans as well as the Democrat senator Joe Manchin from West Virginia, where the coal industry dominates.
Laws are being “set in a political atmosphere, not a scientific one,” with the appropriateness of national targets the subject of academic debate, said Delta Merner, who leads the Union of Concerned Scientists’ Science Hub for Climate Litigation. “Setting these standards is the beginning, not the end, of the debate.”
Across high, middle and lower-income countries, the biggest emitters tend to have fewer climate-related laws, the LSE data showed.
That trend was particularly pronounced among high-income nations that were not part of the OECD, such as Qatar, which has one of the highest global emissions per capita but just five climate laws, according to the data.
The oil-and-gas-producing countries of Bahrain, the United Arab Emirates and Kuwait all similarly had high emissions per capita and low levels of climate-related lawmaking.
A surfeit of laws does not mean the legislation is necessarily good for the climate, nor that it is enforced, however.
While Brazil has a relatively high number of laws and policies, climate scientists have criticised them as inadequate to deal with global warming.
Deforestation has increased substantially under President Jair Bolsonaro, who, like Trump, has worked to unwind climate-related legislation.
One reason for the high number of laws in Brazil was the design of the country’s legal system, which could mean that each new law, implemented by executive decrees, “creates a huge volume of legislation,” said Joana Setzer, a professor of climate governance and climate litigation at the LSE.
New legislation could also be counterproductive and perpetuate global warming, such as Brazil’s “just transition” law that permits the continued use of coal and industry subsidies until 2040, said Setzer. “This is where the content of the legislation matters.”
Among G20 countries, the UK and South Korea were the most comprehensive legislators, and Spain stood out within the OECD, according to a study co-authored by Setzer in the journal Environmental and Energy Policy and the Economy, when the “effectiveness in implementation and the length of time laws have been in place” were taken into account.
1,426 Number of climate-related litigation cases recorded in the US
A lack of legislation can also be correlated with a high number of lawsuits. In the US, for example, the lack of clear, overarching climate laws setting out targets and expectations has resulted in the many legal cases seeking to thrash out standards and obligations.
The surge in litigation during the Trump era as polluters challenged deregulation plans was a pattern that was also occurring in Brazil, Setzer said.
Lisa Benjamin, a professor at Lewis & Clark Law School in the US, said the combination of the Paris Agreement, and the latest stark findings about the need to rapidly cut emissions by the UN scientific body, the Intergovernmental Panel on Climate Change, had focused litigators’ minds on the urgency of the problem.
Before the Paris Agreement goal of ideally limiting warming to 1.5C, since pre-industrial times there was “nothing to measure [companies or governments] against,” she said. The dangers to human health and environmental stability of exceeding this level have since been outlined in greater detail by the IPCC assessments by almost 200 scientists.
Now, the international legal community has “latched on to the temperature goals,” which had “spurred on a lot of climate litigation”.
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