The Alien Tort Claims Act Will Never Be a Viable Vehicle for Addressing Global Climate Change

Talk of global climate change has swept the country and even the world.  There is a growing consensus that time is running out and we, as citizens of this country, must take proactive steps to curb the emissions of greenhouse gasses.  As a result, several individuals, organizations, and even states have brought lawsuits demanding the reduction of greenhouse gas emissions.  None of these cases is bigger than the recent decision of the U.S. Supreme Court in Massachusetts v. EPA.

However, the Court’s holding in Massachusetts limits standing in such lawsuits to states, and others acting in coordination with states.  The holding does not recognize standing for individual litigants in climate change lawsuits.  As a result, there continues to be much speculation and discussion among attorneys as to the best way to prevail in such a suit.  How can an individual, suffering detrimental effects of global warming, successfully sue a corporation, or even government entity, for the harms that he or she has suffered?  Different legal theories have been raised to address this issue, but so far none has succeeded.

Some legal academicians have suggested that the best legal theory for bringing such individual-based climate change lawsuits is the Alien Tort Claims Act.  However, regardless of the merits of individual-based climate change lawsuits in general, the Alien Tort Claims Act is not a viable vehicle for such lawsuits. 

The Alien Tort Claims Act (“ATCA”) was part of the first Judiciary Act, signed by George Washington in 1789.  Foreign citizens can sue U.S. companies in U.S. courts under ATCA if their claims identify a specific, universal and obligatory norm of international law.  Conceivably, foreign citizens feeling themselves injured by climate change could sue American companies under ATCA, which gives plaintiffs a potential hook for securing jurisdiction in American courts. 

Such litigation is unlikely to bear fruit for several reasons.  In addition to the normal hurdles that a potential plaintiff must overcome anytime ATCA is extended to a newly recognized and protectable right, there are three unique, and likely insurmountable, hurdles that make ATCA a poor choice for remedying harms associated with climate change  First, the Judicial branch has expressed reluctance to expand the applicability of ATCA.  In fact, at least one Justice of the Supreme Court, in addressing the scope of ATCA, has asked “if it isn’t wise to . . . let Congress have a look at this thing.”  Second, it is possible that Legislative changes would prohibit ATCA’s applicability to climate change issues.  As recently as 2005, Senator Feinstein drafted a bill that would have limited the scope of ATCA to claims of torture, extrajudicial killing, genocide, piracy and slavery.  Finally, the president appears able to limit the scope of ATCA through the use of executive orders.  There is at least one executive order, dated May 22, 2003, that essentially strips ATCA of any applicability to issues arising from America’s invasion of Iraq. 

Climate change has become an emotionally charged issue.  It is not surprising that those seeking to regulate greenhouse gas emissions would look to the courts as an avenue for change, particularly given the lack of movement by the political branches of the Federal Government.  However, ATCA is unlikely to be a useful tool in that fight.

(Contributed by Robert Wing, Attorney in the Salt Lake City Office; and Matt Droz, former Attorney in the Salt Lake City Office)