Climate on Trial

February 5, 2024

Earlier this year, in separate cases, a federal judge in Oregon and a state judge in Montana ruled in favor of young people who argue that their governments’ many failures to protect the climate violate their constitutional rights, among other claims.

Paul Rink ’19 JD/MEM worked on both cases, first as a law student, then as a summer clerk, and later as a staff attorney with Our Children’s Trust (OCT), the public interest law firm that represents the youth in those matters and many others around the world. The firm, which regularly partners with Yale Law School’s Goldman Sonnenfeldt Environmental Protection Clinic, has made a name for itself filing similar litigation in different jurisdictions.

“The young people in these cases are bringing crucial complaints before the courts — and winning,” said Rink, who is now a visiting assistant professor at Pace University’s Elisabeth Haub School of Law.

OCT’s cases are among several high-profile attempts through the courts to hold public officials and private companies accountable for their contributions to climate change. In recent years, dozens of cities and a growing number of states — represented by the law firm Sher Edling, which is the professional home of alumni Quentin Karpilow ’18, Yumehiko Hoshijima ’19, and Anthony Tohme ’22 — have sued major fossil fuel companies arguing they engaged in decades-long campaigns designed to deceive people about their climate impacts; California became the ninth state to file such a case in September.

But one of Rink’s biggest successes at OCT came after a failure in court. In June 2020, a few months before Rink joined the firm full time, a judge in Florida dismissed an OTC lawsuit against state officials there. Undeterred, the young people in the case — guided by Rink and OCT colleagues — filed a petition for rulemaking with the Florida Department of Agriculture and Consumer Services that eventually led to the enactment of an administrative rule setting several renewable energy goals — including a target to achieve 100% renewable energy in the state’s electricity sector by 2050 — along with specific monitoring requirements in furtherance of those goals.

“After the litigation avenue in Florida became less viable, we began thinking about how to stay engaged in the state,” Rink explained. “That year-long initiative led to a very tangible and rewarding success.”

Catherine Iorns Magallanes stands with two colleagues from Save Our Springs — Catherine Iorns Magallanes ’91 LLM (left) with colleagues from Save Our Springs

Across the country and around the world, Yale Law School students, alumni, and faculty are making tactical decisions like these every day, battling climate change and fighting to protect the environment in courts, before legislative bodies, and in the public arena. They are beating back efforts to expand the extraction and use of fossil fuels in places ranging from Tennessee to the deep seabeds off the coast of Pacific Island nations. They are lobbying against the deforestation and degradation of the boreal forests in North America. And they are training the next generation of scholars and advocates to do all that and more.

For Rink, the work is a moral and ethical obligation.

“The people most likely to be impacted by climate change are the people who contributed least to the problem, geographically and generationally,” he said.

Catherine Iorns Magallanes ’91 LLM, a professor at Victoria University of Wellington in New Zealand, agrees. After decades of teaching and informal consulting with environmental and indigenous groups on conservation matters, Iorns obtained a certificate to practice in her country in 2020. The immediate catalyst was to file an appeal to protect one of New Zealand’s clearest freshwater springs. But the move was symbolic as well.

“If we don’t change business as usual, civilization — in terms of people being civilized to each other — will end,” she said. “We’ll all be fighting over clean air and water and food and land.”

An Early Innovator in Climate Cases

In March, the United Nations General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice (ICJ) on the legal consequences for countries whose actions — or inactions — have caused harm to the climate and to present and future generations. The resolution was led by the Pacific nation of Vanuatu and began in 2019 with a coalition of law students from the University of the South Pacific.

But the efforts to obtain an ICJ advisory opinion on climate change can be traced back more than a decade to a class at Yale Law School taught by Joseph M. Field ’55 Professor of Law Douglas Kysar and the late Stuart J. Beck ’71. In 2012, Kysar and Beck co-taught a course on the potential role of the ICJ in “breaking the climate negotiations deadlock.” At the time and until his death, Beck was the ambassador to the United Nations for the permanent mission of Palau, an island country that was seeking a UN resolution in favor of an ICJ opinion that would determine how to assign responsibility for climate harms. Students in the class — from Yale Law School and the School of the Environment — worked to gather legal, political, and scientific justifications for Palau’s request, ultimately publishing a 103-page report laying out their case.

Palau’s effort ultimately failed in the face of opposition from the United States, which was worried the movement might distract from efforts to unite countries around the 2015 Paris Agreement. But Palau’s influence is still being felt today. The Yale report helped lay the groundwork for future ICJ advisory opinion campaigns and also for the so-called Oslo Principles, which in turn were influential in a 2015 ruling from The Hague that the Dutch government needed to reduce emissions by at least 25% by 2020. Kysar notes that the Oslo Principles were informed by Professor James Silk ’89 and the Lowenstein International Human Rights Clinic.

“The ICJ route is a way to bring in the rule of law,” Kysar said. “It’s not going to fix things overnight, but it might help make the negotiations more fruitful by establishing a baseline level of responsibility that can’t be ignored.”

Advocacy in the Pacific

Julie Hunter ’13 worked on the Palau project as a student at Yale Law School and played a role in the more recent effort by Vanuatu in her previous position as an attorney at Blue Ocean Law, which represented the country in its resolution quest.

At the firm, which is based in Guam, Hunter also helped compile a report about the risks — to people, countries, and ocean health and life — of deep sea mining in the waters off Pacific Island countries.

Today, Hunter is a senior legal advisor for Asia and the Pacific at the International Center for Not-for-Profit Law, where she focuses on protecting civic space and public participation, including by protecting the rights of marginalized groups in regulatory frameworks related to resource governance and climate change. She tries to ensure, in the transition to renewable energy, that impacted people and indigenous communities are part of the discussion and planning process.

Fighting for North America’s Forests

The Palau project also proved to be a fruitful training ground for Jennifer Skene ’14.

At the time, she said “that was a pretty cutting-edge area — looking at international law as a means of building accountability for, in particular, the Global North’s impacts on climate change.”

Skene contributed to the report’s analysis of cases that could be used as precedent for assigning liability for transboundary harm. She says she continues to use the tools she developed during that experience at the Natural Resources Defense Council where she works as a natural climate solutions policy manager to address forest degradation in the Canadian boreal forest, among other places.

A screenshot of Jennifer Skene on a Fox News segment with an image of a forest — Jennifer Skene ’14 on a news segment as part of her work at the Natural Resources Defense Council

Before joining NRDC full time, Skene had two fellowships at the organization, including one offered in conjunction with Yale Law School’s Environmental Protection Clinic. In that role, she taught the clinic for a year (she continues to serve on the teaching staff). She regularly involves students in her work, including efforts to include language protecting boreal forests in state procurement policies and corporate supply chains and to create an accountability framework that would help enforce pledges made by world leaders in the Glasgow Leaders’ Declaration on Forests and Land Use in 2021.

Skene says the “holistic” approach to lawyering that she learned at Yale Law School and in the Environmental Protection Clinic “has certainly paid dividends” in her own career.

“It allows for a lot of innovative thinking beyond the traditional models of law and policy,” she said.

Community-Based Counsel

Hunter and Skene both work on a global scale. But other advocates find their fights closer to home.

Chelsea Bowling ’18 joined the Southern Environmental Law Center’s Memphis office shortly after graduating from Yale Law School. She liked the “place-based” approach of the nonprofit.

“A lot of really important environmental work is at the state and local level,” she said.

Having first-hand familiarity with Tennessee’s state and local laws proved to be a major advantage in one of Bowling’s most significant matters to date. She was part of a team that, in 2021, helped defeat a proposed 49-mile pipeline that would have transported crude oil through predominantly Black neighborhoods in Memphis.

When the private joint venture proposing the Byhalia Pipeline went to court to try to take people’s land through eminent domain, Bowling’s firm intervened on behalf of the Memphis Community Against the Pipeline group. Among other things, SELC argued that the joint venture had no such authority under state law.

“I think Byhalia was operating under a cut-and-paste playbook,” Bowling said. “They were used to having this authority in other states. But, by taking a closer look at the specific state law in Tennessee, we argued they didn’t.”

Without eminent domain, the company would have had to negotiate individual easements with every property owner, a potentially costly process. At the request of the judge on the case, SELC filed a substantive brief on the issue on April 16, 2021. In May of that year, before the judge could issue a ruling, the company announced it was pausing the project; in July, it abandoned the effort completely. Although there were many fronts in the fight against the pipeline, Bowling says the timing of the company’s decision indicates the eminent domain argument was persuasive.

“The judge seemed to be taking us seriously,” she said. “They pulled out before there was a ruling on the books.”

Bowling also worked to pass local legislation that would make it harder for any pipeline to cut through the area from which Memphis draws its drinking water.

“We made it clear that the current regulatory environment did not adequately protect the aquifer from threats from development,” she said.

In both cases, she explains, having ongoing relationships with local advocacy organizations helped position the firm for success.

“It means we’re able to be more responsive,” she said. “We’re able to see opportunities that would be harder to see if we were all located in an office in D.C.”

A Multifaceted and Multidisciplinary Approach

Anthony Moffa ’12, a former EPA attorney who is now a professor at the University of Maine School of Law, said there is no silver bullet to solving the climate crisis. Nor is one profession up for the task. One of the things he says he appreciated most about his time in the Environmental Protection Clinic — and something he emphasizes with his own students now — was the interdisciplinary approach to projects. For instance, he helped negotiate a memorandum of understanding to protect a part of the Aegean Sea where there had been illegal fishing. To do so, he collaborated with marine biologists and other scientists.

“They spend their time in the field; they see things differently,” he said. Working with people from other disciplines is “an important piece of being an environmental lawyer.”

Anthony Moffa stands outdoors with a group of six students — Anthony Moffa ’12 (third from left) with his students

As a professor, he also teaches students about regulatory and policy-based solutions to environmental and climate issues, private sector initiatives, and litigation-based strategies.

“I don’t think any one of these approaches is capable of solving the problem on its own,” he said. “In the law, there’s the phrase ‘necessary and sufficient.’ They’re all necessary but none of them are sufficient.”

Rink agrees.

“It’s an ‘all in’ situation, not a ‘this or that’ situation,” he said.

Kysar says the sheer scale of the “transformation” that needs to take place to avert the worst climate catastrophes means that every option has to be on the table, all the time.

“When you’re talking about broad-scale social transformation — civil rights, marriage equality, decarbonization — these things require massive amounts of advocacy across an entire spectrum of potential levers of change,” he said. “We just need people fighting in every venue, using every tool.”