Debate may still be raging over how serious the effects of climate change may be and over how significant the impact of human activities are as a cause of climate change, but what cannot be debated is the increasing number of climate change disputes becoming enmeshed in the legal system. In the United States (U.S.), climate change litigation has evolved into a somewhat consistent model with where state governments generally bringing suit as parens patriae plaintiffs on the common law ground that polluter-defendants, through their conduct, are contributing to climate change, a recognized public nuisance. In other words, American climate change litigation tends to be tort-based claims brought by governments in their role as quasi-sovereigns, on behalf of the citizenry, for an illegal interference with a public interest.
Europe, on the other hand, is a predominantly civil law-based system that relies heavily on legal code provisions and considers case law precedent of secondary importance. The European Union (EU) and its Member States have extremely limited case law with governments acting as parens patriae in any context, and little-to-no precedent in the climate change field. This article proposes that while, for various reasons, the EU or its Member States will likely not adopt the American climate change litigation model in its exact form, it is certainly possible that other types of climate change litigation—albeit founded in statutes and regulations—might emerge via both parens patriae action and under other theories, influenced by similar litigation models that have occurred across the Atlantic, in the U.S..
Although this article will assess and evaluate the possible success rate of different proposed causes of action, its true purpose is to identify and analyze realistic methods to bring climate change lawsuits which might follow the path blazed by American litigators. Part I discusses the historical foundation of the American climate change litigation model, clarifies how this article construes the term parens patriae, and summarizes the legal background—including the relevant Supreme Court decisions—that exists in the public nuisance and climate change domains. Part II attempts to resolve the question of why there are essentially no parens patriae-like, tort-based climate change lawsuits yet in the EU, examining a number of structural factors and impediments. Part III sets out and justifies the reasoning behind this author’s belief that parens patriae-like climate change lawsuits of the American mold may be poised to make an entrance onto the European judicial scene. Part III also clarifies how this article differentiates between parens patriae actions and more purely regulatory remedies.
Part IV analyzes the first of several potential causes of action for harms caused by climate change, which involves applying EU Directive 2004/35/EC (drafting the “polluter pays” principle into law for environmental issues). Part V studies how lawsuits by governmental plaintiffs might proceed under EU Directive 2003/87/EC (adopting a greenhouse gas emissions trading scheme for the European Community) for injuries or imminent damage stemming from climate change. Part VI examines the potential for climate change litigation via various techniques in individual nations—including those from both the common law and civil law traditions—and presents case studies for France, Germany, and the United Kingdom. Finally, in Part VII, this article proposes that treaties are another viable option for government entities to bring parens patriae-type actions in the name of their citizens and explores how to use the Aarhus Convention and Alpine Convention in this regard.