Courts have on occasion enabled massive changes in the 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 the 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.
“Failure-to-protect”: Many lawsuits have been filed against correctional facilities across the country. 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.
If any of these lawsuits are successful, the legal precedent created may support a more generalized type-of-harm claim for climate activists in the future.
Holding the media accountable for misinformation: 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.
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: Many business owners have filed lawsuits against local and state governments, arguing 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. But courts have long held that if a government regulates to prevent a public nuisance, compensation will not be required.
Though unlikely, it is worth paying attention as to whether the courts allow plaintiffs to obtain compensation for the economic disruptions that they have faced, it’s time to worry. Saving the environment might require the shutdown of entire industries, such as fossil fuels or beef production. If business owners aren’t being compensated today for COVID-19 shutdowns, why should these industries receive compensation if environmental policies shut them down? This is what climate attorneys will be paying attention to.
When it comes to climate action, 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.