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An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?

72 Pages Posted: 19 Feb 2011 Last revised: 7 Nov 2013

David L. Markell

Florida State University - College of Law

J. B. Ruhl

Vanderbilt University - Law School

Date Written: February 16, 2011

Abstract

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. We conclude that the story of climate change in the courts has not been one of courts forging a new jurisprudence, but rather 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 of the Article 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 of the Article 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 policy making, but the 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.

In Part IV of the Article we stretch a bit from the confines of our empirical study and findings to speculate about the future of climate change litigation.

Suggested Citation

Markell, David L. and Ruhl, J. B., An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual? (February 16, 2011). FSU College of Law, Public Law Research Paper No. 483. Available at SSRN: https://ssrn.com/abstract=1762886 or http://dx.doi.org/10.2139/ssrn.1762886

David L. Markell

Florida State University - College of Law ( email )

J. B. Ruhl (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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