For at least two decades, property owners, local governments, non-governmental organizations, climate activists, students, and other interested parties have turned to the courts to stem the effects of climate change. As the case law has developed, plaintiffs and defendants alike have refined their arguments, both procedurally and substantively, laying the groundwork for two recent developments in climate change litigation.
This latest iteration of climate-change litigation can be grouped topically into two categories: the first, those cases proactively challenging the statutes and regulations adopted by certain of the states to combat the effects of climate change; and the second, those by the states against industry—particularly fossil fuel producers—seeking to hold the latter liable for the effects of climate change. Although this article addresses for context the former category—a groundbreaking change in climate-change litigation strategy—it focuses on potential implications for the second, interestingly, arising out of a land-use rather than a climate-change case that the Supreme Court will hear this term, Chevron USA Inc. et al. v. Plaquemines Parish, Louisiana et al.
For both appellate and trial practitioners, this case highlights the importance of procedural issues at the trial level and just how prominent those issues can become as a case progresses. If you are an appellate practitioner, you likely know that because of the breadth of trial-court records and the vast scope of issues addressed at trial, it can sometimes be a challenge to narrow the focus of issues on appeal. For those who primarily are trial-court practitioners, the Chevron case demonstrates why bringing in an appellate practitioner early in the process can often be advisable, both for appellate issue-spotting/framing and preservation for appeal. Indeed, the Supreme Court will not be deciding Chevron on the merits, but on the procedural issue of removal to federal court—a preliminary issue in the litigation and yet one that has driven the appeals.
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"The New Frontier of Climate-Change Litigation," by Christina Manfredi McKinley was published in the Fall 2025 edition of Appellate Issues, published by the American Bar Association.
