No climate legislation? Let's go to court!

Love or hate the US political system, you can't claim it is boring. As anyone who has watched is aware, the legislative process is currently stuck in perpetual gridlock. But, like any good adaptive system, alternatives will emerge. And, as shown in the chart to the left, the famed 'balance of powers' appears to be working.

A recent report, Growth of U.S. Climate Change Litigation: Trends and Consequences, documents a fascinating trend in US court filings related to climate change. Following a dip in 2009, when there was the expectation of legislative action, filings have skyrocketed with the year end total for 2010 expected to triple the number of filings in 2009. Significantly, the cases involve filings both advancing and undercutting climate change regulations. As noted in the NYTimes coverage, the situation may play out in much the same way as happened with tobacco.

Bruce Kahn, senior investment analyst at DBCCA, says that in an extreme situation, the development of climate lawsuits could come to resemble the famous history of U.S. tobacco litigation. In that case, thousands of separate legal challenges eventually culminated in massive lawsuits, with the courts, and not Congress, eventually determining the character of U.S. tobacco policy.

The difference, says Kahn, is that climate litigation is growing at an alarmingly fast rate.

"The rate of change relative to tobacco is much faster," he said. "The run-up in tobacco cases took several decades before it became a real big class action suit ... whereas the ramp-up in climate change litigation has been much quicker."