Law360 Quotes Kenneth Markowitz on Climate Activism

For its article “Climate Activists Gaining Ground In Courts Worldwide,” Law360 quoted Akin climate change group co-leader Kenneth Markowitz. The article looks at the growing body of domestic and international climate law fueled by lawsuits filed by climate activists.

Ken said that courts are in the early stages of handling lawsuits that use the legal system as a way to drive behavioral change around climate change: “As the reports keep coming out of the UN, with more dramatic scenarios being painted, and hitting tipping points, and desperation among those that are interested in paying attention to this, it's only going to inspire more creativity and attempts to use the court system to make those behavioral changes, particularly in areas where the legislature, the regulatory bodies have failed to act or are handcuffed from acting.”

He said that, among the litigation trends emerging in the field of climate law, one is a plaintiff-side “shotgun approach” to legal claims that attempts to try constitutional, statutory and regulatory, consumer protection, and human rights and child protection theories of law, which he characterized as all very different and each with a distinct role, currently, in the climate litigation universe.

Ken noted several trends about which companies should be aware. One features a case in which a Dutch court ruled that Royal Dutch Shell must cut its global carbon emissions by 45% by 2031. He said that this case could provide a template for plaintiffs who seek to hold businesses accountable for climate commitments made by nations. The second is that plaintiffs are seeking ways to sue companies for statements these make regarding their climate commitments, policies and results that may not stand up to judicial scrutiny.

He said that these claims are most effective when there is not good, hard data to support a company’s statements, adding that, were the Securities and Exchange Commission to move ahead with a climate disclosure rule, that could open corporations up to legal vulnerabilities. He added, “There's going to be this proliferation of data produced that's certified as true and correct to a government body under penalty of law. So all of a sudden there's this huge amount of data that was not previously available in the public domain that good plaintiff lawyers will likely be poring over and trying to match up against statements, claims, and other things that are being made by big publicly traded companies.”

Ken said that, opposing the debate are parties such as the GOP attorneys general who have sued companies over their environment, social and governance policies.

He added that it is not only judges who are keeping abreast of, and adding to, the growing body of climate law, as activists are building a corps of young environmental lawyers to handle cases for plaintiffs: “There's a lot of motivation we are seeing in this next generation of lawyers coming up. They're much more interested in doing what they consider good and being inspired. I expect that we're going to see more and more of these young, brilliant minds also being applied to these cases and coming up with fresh ideas. And they could wind up being judicial clerks in any jurisdiction around the world, as well.”