California For The Win

Why Climate Litigation Matters

Welcome back to Damages. I'm Amy Westervelt. Today, something people outside of the legal profession might not know about or think about much, the common law and civil law systems. These are the two systems in place in most countries in the world. The common law tradition emerged in England during the middle ages and was applied across British colonies all over the world.

The civil law tradition developed in continental Europe around the same time and spread to the colonies of European imperial powers like Spain and Portugal. That's where you'll find civil law systems through most of Latin America and Europe, but common law systems. in English speaking countries like Australia, Canada, the UK, of course, and yes, the U.S.

Civil law was also adopted in the 19th and 20th centuries by countries that formerly had their own distinct legal traditions, including Russia and Japan. Why are we talking about this? wonky, dry detail about the mechanics of courts? Well, because there are more than 1, 800 climate cases happening all over the world right now, and they're not all being tackled by the same justice system.

This summer, for example, a group of judges from Germany will head to Peru on a fact finding mission related to a case filed by a Peruvian farmer against the German utility RWE. The case is related to the utility's role in exacerbating climate change. No one thought the German court would accept the case in the first place, but now that it has, the judges are tasked with collecting their own evidence.

A concept that might sound really strange to Americans. There's another big reason to talk about common law and civil law right now. You know how there's a lot of talk about precedent in the U. S. and the Supreme Court's willingness to overturn it? Well, Precedent is a key part of common law and there are various ways that it might come into play around both climate litigation and climate policy in the years ahead.

Suddenly the details of how these systems work seem highly relevant. We're going to dig into all of it right after this quick break.

I remember there was a prosecution. You might not remember the case of a very well known American student who was, uh, uh, involved in a criminal case in Italy several years, Amanda Knox. Late today, a 22 year old American student, Amanda Knox, was found guilty in Italy of murdering her British roommate. She was immediately sentenced to 26 years in an Italian prison.

When I asked Alejandro Garo, a professor and senior research scholar at Columbia Law School and an expert on the differences between civil and common law, to walk me through those differences, he started with the Amanda Knox trial in Italy back in 2009. And that really brought up a lot of misunderstanding of what really is normal or not normal in other countries.

You might remember that case from tabloids in the U. S. or some docuseries on Netflix. At any rate, one thing that's not normal anywhere but the U. S. is the presence of juries in civil trials, while criminal trials do have juries in most other countries, as the Knox case did in Italy. Even amongst common law countries, the U.

is unique in providing juries for civil trials, too. Well, one aspect of American exceptionalism, which I think is truly exceptional, is the jury system in none criminal cases in civil cases, like in the Chevron case. Even England, which is the mother country from where the United States copied the jury system, abolished it in the 19th century.

And there are no more jury civil cases, jury civil cases in, in England. And so it's in the New Zealand, Australia and other common law countries that do not have, do not give to juries. The fact finding mission that they have in this country, which is where it's a, it's a constitutional guarantee, actually.

So what you have in Ecuador is really not an exception in Ecuador. What is exception is in the United States, where you have the very complicated trials as this one decided by lay people. And, uh, you know, whether right or wrong, that's the American system. People live with it, uh, but it's hardly would ever be successful in, in other countries, let alone countries like, unlike England, the U of the U S there are no, it's no tradition of jury.

So juries are not really the important part of the legal system in, in non English speaking countries and in civil cases. The United States goes, I believe, alone in still having the jury in civil cases. It's not a given that you'll have a jury in a civil case. In some cases, either the plaintiff or defendant has to ask for a jury trial, but such requests are typically granted.

And that's a really big difference between the U. S. and every other country, but especially countries like Ecuador or Peru or Germany, where it's really up to the judges to evaluate the facts of a case. In, um, civil law countries and the countries of the civil law tradition, Roman based like Ecuador and most other countries in Europe and Latin America, those kind, those countries, it is the practice is generally that the court appoints its own expert.

It doesn't mean that the parties are not allowed to appoint experts. They do. But generally is the court appointed expert to whom the court judge generally will follow is a more objectively neutral, independent type of expert on which most judges in civil law countries will rely, of course, that the plaintiff can pay and retain its own expert and the respond to the defendant can do her own.

That's no problem. But again, statistically, judges in most civil law countries Respect and follow the court appointed expert even more to a greater degree than the party appointed experts on which they do not have much trust. The American system is otherwise. Even though judges in the United States do have the power to appoint their own experts, they rarely do it.

It's a job of the lawyers of the parties. Each one pays its own experts. And you are engaged in this, in my view, somehow shameful battle of experts. The other big difference centers on the importance of precedence. Countries with civil law systems have comprehensive, continuously updated legal codes that specify how to handle pretty much any case that might appear before the court.

When there's a question, it'll get sent to the constitutional court. That's what happened, for example, in the case of Ecuador's rights of nature legislation. The court is currently reviewing several cases in which there were big questions about how to apply rights of nature, and their ruling in the first of those cases, where they ruled in favor of the Los Cedros cloud forest, was very prescriptive for that reason.

It tells administrators and legislators how they should be applying this law. So, ideally, there won't be more cases like the Los Cedros case. Here's Constanza Prieto, the Latin America legal director for Earth Law Center. They talk about the forest, but not only the forest, about also the biodiversity, and also about the water, and also the call to apply principles.

And also, um... They explain what means for the authorities all these rules. So, it's saying basically, it's giving like a class of what should mean for the authorities and for the, um, also for the judge and also for the legislative power what means a right of nature. Under common law, the system in the U. S.

and most other English speaking countries, the law is not really codified. In other words, the court is not functioning according to a set of prescriptive laws. Yes, there are a few governing principles the right to a jury trial, for example but for the most part, the common law system operates on precedent.

So the law shifts as the court decides cases, but then once it shifts, it's supposed to remain fairly static, barring major changes in society or the government, which is interesting when you think about the fact that the United States has this really rigid constitution. We're pretty unique among modern democracies in our refusal to update that document.

But the way that the constitution is applied by the courts. Kind of changes all the time. We're seeing that now in a big way with the recent leaked draft opinion from the Supreme Court that's set to overturn the landmark 1973 decision in Roe versus Wade. The reversal of that legal precedent will have cascading effects not just for social norms and access to abortion, but also for countless legislative issues and policies.

Those surrounding fertility, for example, and the freezing of eggs or embryos. Or the decisions some states are likely to make around criminalizing abortion. Here's attorney Laura Coates explaining the importance of precedence with respect to the Roe decision on CNN. The idea of precedent. This has come up a great deal.

Now, Alito mentioned it in the form of stare decisis, a fancy way of saying things should actually stick. This is what it is, and the inertia will keep going. So if we were, we're not really on, on, um, in surprise because we saw how the Supreme Court allowed Texas to do an end run around precedent. They did not honor it in that way.

But I think most people thought about maybe it'd be parameters. Maybe the week when the compelling interest of the state, um, to protect, protect, protect an unborn fetus would outweigh the compelling interest of a state of a woman to carry a pregnancy at a particular part of a trimester. We thought the primaries might be massaged.

The obliteration of it speaks volumes about the inequality. And it will impact people who do not have the means. But it will not stop abortion in this country. It will likely just stop abortion for those who do not have the luxury of choice. And what is the story of America if not that? For those watching various climate cases, it's a really big deal too.

Supreme Court justices are expected to rule on another big precedent question in June, this time in a climate case, West Virginia versus EPA. The case questions the court's previous decision to grant the EPA the right to regulate greenhouse gas emissions. Even though that right is not granted in the Clean Air Act or any of the environmental legislation establishing the EPA.

I spoke with attorney Jason Reilander about that case and the potential for that precedent to be overturned earlier this year. The Supreme Court has already ruled in a couple of different cases that EPA has authority to regulate greenhouse gases. They said so first in Massachusetts v. EPA. They said so in the AEP v.

Connecticut case. And they also said so in, in another case, uh, that, that came a couple of years later. And so, you know, to the extent that the court wants to get into this sort of major questions about what Congress has spoken clearly to in terms of, of authority for agencies to regulate, that big question has already been addressed.

What we're really getting into now is sort of the weeds of whether section 111. allows EPA to create a best system of emissions reduction that would lead to the most effective and efficient reductions in, in greenhouse gas pollution. And that's the kind of question that is usually left to agency discretion.

That's why in the wake of Roe, there was a call for the establishment of legislation that would enshrine the right to choose in law. And why, similarly, there have been calls to establish the EPA's right to regulate greenhouse gas emissions more officially. Although, of course, none of that would necessarily mean that these laws wouldn't be challenged, but it's historically been a bit harder to topple both precedent and legislation in the U.

than one or the other. There's another big precedent setting case that's relevant to climate. Citizens United. That was the 2010 Supreme Court decision that opened the floodgates to dark money in politics and further eroded the line between individual rights and corporate rights. Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual?

A corporation, after all, is not endowed by its creator with inalienable rights. So, is there any distinction? That Congress could draw between corporations and natural human beings for purposes of campaign finance. What the court has said in the First Amendment context, New York Times vs. Sullivan, Grosjean vs.

Associated Press. And over and over again is that corporations are persons entitled to protection under the First Amendment. That was elite Justice Ruth Bader Ginsburg questioning attorney Ted Olson with the firm Gibson Dunn, who argued and won the case. Just a quick recap here. That case was about a film that had been made criticizing Hillary Clinton the first time she tried to run for president.

It was funded by a cohort of right wing organizations and corporations, including Koch Industries. So the Federal Election Commission had said the movie couldn't screen without identifying itself as campaign material and noting its funders. The filmmakers and their attorneys argued that this violated their free speech rights.

And they won, opening the door to unlimited corporate funding of political propaganda. But Citizens United didn't just set a new precedent, it also built on an old one. And Mobil was one of the leading corporations to fight for that legal right. This is Dr. Robert Bruhl, an environmental sociologist at Brown University.

There was a pretty big effort. To get a Supreme court ruling that basically supported corporate speech and the right of corporations to do advertising of their, not just product, product advertising, but of their, you know, positions. That Supreme Court case was First National Bank of Boston v. Bilotti.

First National, along with two other banks and three corporations, wanted to spend money to publicize their opposition to a ballot initiative that would permit Massachusetts to implement a graduated income tax. The Attorney General of Massachusetts said that violated a state law against funding campaigns that would influence the outcome of a vote.

The bank sued and the case went to the Supreme Court in 1977. The ruling came out in 1978. Here's Supreme Court Justice Louis A. Powell giving that ruling. The First Amendment's primary concern and therefore the court's concern always has been the preservation of free and uninhibited dissemination of information and ideas.

If the restrictive view of corporate speech Taken by the Massachusetts court were accepted government would have the power to deprive society of the views of corporations. Powell is also credited with crafting the infamous Powell Memorandum, which outlined the pro corporate strategy that would guide the Republican Party from the early 80s to today.

Bilotti is generally considered the precursor to Citizens United, and Mobil Oil was hugely influential in securing that ruling. Here's Robert Kerr, a researcher and journalism professor at Oklahoma State University, who's written two books about the evolution of corporate free speech and mobile's role in it.

You know, it actually was very close when it first got to the Supreme Court. The justices could have gone the other way. Um, but, you know, I, well, you know, in the book, I get into how Justice Powell kind of really finessed it and got that first, um, precedent setting case, Belotti, into, into the case law. Yeah.

And, uh, and then later when, um, When it got to Citizens United, uh, Justice Kennedy kind of ignores the overall body of case law and he goes back to Bilotti 24 times. It's really unusual to cite one case 24 times. So why does any of that matter today? Well... In addition to changing public discourse forever, it also laid the groundwork for the argument that oil companies are using now to defend their role in spreading climate disinformation.

In some two dozen climate liability cases, the oil companies are being accused with misleading the public on climate. The lawyer appointed to speak for all of the companies in these cases is Ted Boutros, who's not only a well known First Amendment attorney, but also a partner at Gibson Dunn, the firm that secured a win in Citizens United.

Here he is speaking on the Climate One podcast in 2020. I do want to take head on the notion that the plaintiff's lawyers in a lot of the climate change cases have been advocating is that the oil and gas companies were, they had secret knowledge and they were then putting out, you know, misinformation and they tried to analogize it to tobacco and other areas.

It just, it doesn't make any sense because it was well known the federal government knew the problems of climate change, the potential causes, and knew that there was an issue here. Other attorneys are making this argument on behalf of the oil majors as well. When it exhausted all options to dismiss the fraud case against it in Massachusetts, ExxonMobil filed an anti slap suit against the Attorney General's office there, claiming that the fraud case amounted to an effort to quash the company's First Amendment rights.

SLAPP stands for Strategic Litigation Against Public Participation. Anti SLAPP statutes were meant to protect the press and civil society groups from corporations that wanted to silence their critics. But these days, it's become equally common for corporations to use them to swat away legal complaints.

Here's attorney Justin Anderson, a partner with Paul Weiss, ExxonMobil's law firm, at a March 2022 hearing about that case in Massachusetts. The alleged misrepresentations are the statements that ExxonMobil has made about its views on climate policy, on energy policy. The anti SLAPP statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset, before burdensome discovery is imposed on the party.

Before we have our executives come in to give testimony and depositions before we're dragged into a courtroom where we have to defend ourselves. That phrase he uses, petitioning activity, is really key here because what it means in plain English is political speech. And the argument ExxonMobil is making here, and that Boutros has been making as well, is that because the oil company's campaigns on climate are political speech, not commercial speech, they're protected by the First Amendment.

There are some, even for these justices, there's some reason for them to at least think about whether they really want to get rid of the fraud exception, you know? I mean, if you could argue that the First Amendment protects fraudulent speech, then, um, Oh my gosh, that's almost unimaginable. But with this court, you know, some of us have to consider the unimaginable.

So there you have it, a quick primer on common law versus civil law, why precedent is so important, and some of the very big reasons why these mechanics of the court really matter. That's it for this time. Thanks for listening. Still coming up this season we've got an interview with Rhode Island Senator Sheldon Whitehouse on why so many public interest law firms and right wing organizations spend so much time and money on amicus briefs.

Plus a look at the difference between the human right to a healthy environment and rights of nature. Come back for that, and make sure you're subscribed so you don't miss new episodes or our next season.

Damages is an original Critical Frequency production. Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld. With additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment Project.

Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the FILE Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.

S2, Ep5 Transcription

In many of the countries where some of the world's largest climate cases are unfolding, the legal system looks very different than it does in the former English colonies. In much of Europe and Latin America, for example, the Roman system dominates and it works very differently, with judges gathering their own evidence in cases. Another key difference? Reliance on precedent in common law countries like the U.S. ... a topic that's becoming more important to understand every week.

S2, Ep 6 | False Friends of the Court