Climate Change Lawsuits Are On The Rise

Governments around the world are increasingly being challenged in court to do more to combat the threat of climate change, with litigation ranging from a group’s attempt to stop an airport runway in Austria to a Pakistani farmer suing his government over its failure to adapt to rising temperatures, a new study has found.

The lion’s share of the litigation is in the U.S., but the number of countries with such cases has tripled since 2014.

U.N. Environment and Columbia Law School, which undertook the research, found a “proliferation” of cases instigated by citizens and environmental groups demanding action on areas such as sea-level rise, coal-fired power plants, and oil drilling.

“It’s patently clear we need more concrete action on climate change, including addressing the root causes and helping communities adapt to the consequences,” said Erik Solheim, head of U.N. Environment. “The science can stand up in a court of law, and governments need to make sure their responses to the problem do too.”

The U.S. has been the staging ground for 654 climate-related cases, almost three times that of the rest of the world combined. Some of these cases have proved pivotal, such as a 2007 case where various states and cities demanded the EPA regulate carbon dioxide and other greenhouse gas emissions.

The Supreme Court ruled against George W. Bush’s administration, leading to the EPA determining that greenhouse gases are a public health threat and opening the way for Barack Obama’s executive action on climate change.

Other cases are continuing, such as the 21 children who are represented in a lawsuit against the federal government, claiming that its failure to sufficiently cut emissions violates their constitutional right to life, liberty, and property. The Sierra Club, an environmental group, said the case would “upend climate law as we know it” should it be successful.

Australia, with 80 cases, and the U.K., with 49 cases, are the next largest national sources of climate litigation, although the report notes that legal action is starting to emanate from all corners of the world. The issue of “climate refugees,” where people have had to flee their country due to flood or drought, is gaining traction, following a case where a man from Kiribati sought refuge in New Zealand.

In the Netherlands, an environmental group called the Urgenda Foundation joined with several hundred Dutch citizens to sue the government over its decision to lower its greenhouse gas reduction target. The court concluded the case had merit based on the Dutch constitution, the European Convention on Human Rights, and the “no harm” principle of international law.

In a separate case, several groups managed to overturn the approval of a third runway at Vienna’s main airport, while in yet another case, a court in Pakistan ruled in favor of Ashgar Leghari, a farmer, over his government’s “delay and lethargy” in implementing its climate change adaption policies.

Not all cases have been as successful. A Peruvian man sued a German energy company over the climate impacts suffered in his homeland, with the case ultimately dismissed.

“We haven’t seen any major wins filed in actions against fossil fuel companies, but there have been successes in lawsuits against governments,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia. “A lot of this legal action is in the U.S. because America is a litigious society, but also because there is such a partisan divide over the fundamental reality of climate change, which doesn’t really exist elsewhere in the world.”

Burger said legal action will prove significant in pushing the countries closer to their agreed target of avoiding global warming of 2 degrees C or more compared to the era shortly before the advent of heavy industry. The world is currently on course to breach this limit, causing ever more dangerous climate change, even with the emissions reduction pledges agreed in the Paris climate deal.

“The role of litigation will be different in each country but we will continue to see an increase in climate lawsuits that make explicit reference to the Paris Agreement,” he said. “In the U.S., I don’t think that any court will hold the government to account over Paris, as it’s not binding, but other courts in other countries may give it different weight.

“Legal action will be used to stave off the worst aspects of climate change. Litigation has been absolutely essential in instigating action in the U.S. and elsewhere, and it will continue to be so.”

Florida’s Definition Of Skim Milk As “Imitation Milk Product” Ruled Unconstitutional

The long-running legal battle over Florida’s definition of “skim milk” may have finally come to an end today, with a federal appeals court ruling that it’s unconstitutional for the state to require that unfortified skim milk be labeled “imitation milk product.”

Under Florida state law, “imitation milk products” are those foods that have the “physical characteristics, such as taste, flavor, body, texture, or appearance, of milk,” but do not fall within the state’s definition of “milk products” because they are “nutritionally inferior to the product imitated.”

In the state’s view, skim milk lacks vitamins and nutrients that are found in whole milk. Thus, a dairy must re-introduce those lost nutrients (primarily vitamin A) to skim milk in order to avoid the “imitation” label.

However, the folks at Ocheesee Creamery think this is a violation of their rights. In 2012, the Florida Dept. of Agriculture told them their skim milk would have to carry the wordy designation of “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed,” or NGAMPNVR if you’re into overly complicated acronyms.

Ocheesee sued the state in 2014, arguing that it violated the company’s First Amendment rights. The complaint alleged that the imitation milk product designation would “confuse and mislead its customers by mislabeling its safe, all-natural, pure skim milk.”

At a 2015 hearing in the dispute, it looked like the judge might be favoring the dairy’s argument.

“It’s hard to call this imitation milk. It came right out of the cow,” said the judge at the time. “Anyone who reads imitation skim milk would think it didn’t come out of a cow.”

However, in March 2016, that same federal judge granted summary judgment in favor of the state, noting that the widespread assumption that skim milk is just milk with less fat actually supports the state’s argument.

“[C]onsumers take for granted the nutritional value of skim milk without even knowing that the vitamins have been restored,” explained the judge in 2016. “The record includes a survey that confirms this conclusion: most consumers buy milk for its nutritional value, and most expect skim milk to include the same vitamin content as whole milk.”

Ocheesee appealed its case to the Eleventh Circuit Court of Appeals, which today ruled against Florida.

Commercial speech enjoys fewer constitutional protections than individual expression, so it’s up to the courts to decide whether governmental restrictions on commercial speech go too far.

The 1980 Supreme Court ruling in Central Hudson Gas v. Public Service Commission of NY established a multi-part test for determining whether government restrictions on otherwise lawful commercial speech violate the First Amendment.

First among those is whether the speech being restricted is misleading or concerns an unlawful activity. The Eleventh Circuit concluded that the creamery’s actions were not unlawful, just its speech.

But is that speech misleading? The lower court had held that Ocheesee’s use of “skim milk” was inherently misleading because it did not agree with the state’s definition. However, the appeals panel notes that being inconsistent with a state’s definition doesn’t necessarily make a phrase misleading.

“All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals,” explains today’s order. “Then, all usage in conflict with the regulatory agenda would be inherently misleading and fail Central Hudson’s threshold test. Such reasoning is self-evidently circular.”

As for the lower court’s conclusion that the state’s particular “skim milk” definition is working, since most people assume skim milk is nutritionally equal to whole milk, the appeals court counters that this is really evidence of people being misinformed than it is some acceptance of the state’s labeling requirements: “unfamiliarity is not synonymous with misinformation.”

Another question raised in Central Hudson is whether the restriction is only as extensive as it needs to be to serve the government’s interest.

In that regard, the Eleventh Circuit found that the “State’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards.”

The judges said the state disregarded less restrictive and more precise means of communicating what is in the Ocheesee skim milk, like “allowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A.”

Check Your Ticketmaster Account Because You May Have Some Free Tickets

Who doesn’t enjoy a nice surprise every now and again? Well, if you’ve used the event ticketing service Ticketmaster at some point in the last ten years, you could be in for a huge surprise today. The company settled a $400 million class action lawsuit over its exorbitant fees after a protracted legal spat just last month. Rather than pay out affected customers in the form of cold hard cash however, Ticketmaster has elected to compensate them in the form of discount codes and vouchers.

What that means is if you log into your Ticketmaster account today and click on the “Active Vouchers” tab, you might just find a whole series of codes granting you free passes or discounts to upcoming events. I’ve personally used Ticketmaster quite frequently over the years and found seven offer codes to free shows in the future. They’re only free in the sense that I don’t have to pay for them, and Ticketmaster already got my money when I sprung for those KanyeWest tickets a couple years back. But I’m not about to shake my fist at the opportunity to catch some shows without having to go out-of-pocket again in the future.

The settled lawsuit is purported to affect about 50 million people that purchased tickets on Ticketmaster between the span of October 21, 1999 and February 27, 2013. The list of eligible shows that are open for you to redeem your promo codes is currently dead, but will hopefully be up and running soon. Keep checking back, and let us know who you intend on catching live when it does.