Document Type

Article

Publication Date

1-2012

Publication Title

Florida Law Review

Publication Title (Abbreviation)

Fla. L. Rev.

Volume

64

First Page

15

Last Page

86

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. 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.

Rights

© 2012 David Markell and J.B. Ruhl

Comments

First published in Florida Law Review.


Reprinted in Land Use & Environmental Law Review 2013-2014 at 289-357 (A. Dan Tarlock & David L. Callies, eds., Thomason Reuters 2013).

Faculty Biography

http://law.fsu.edu/our-faculty/profiles/markell

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