Pleading Patterns and the Role of Litigation as a Driver of Federal Climate Change Legislation

Based on a variant of the Elliott-Ackerman-Millian theory that variable, potentially inconsistent and costly litigation outcomes induce industry to seek federal preemptive legislation to reign in such costs, we collect data on climate change-related litigation to determine whether litigation might motivate major greenhouse gas emitters to accept a preemptive, though possibly carbon-restricting, legislative compromise. We conduct a spectral cluster analysis on 178 initial federal and state judicial filings to reveal the most relevant groupings among climate change-related suits and their underlying pleading patterns. Besides exposing the general content and structure of climate change-related filings, this study identifies major specific pleading trends, such as the low frequency of tort claim pleading and the high level of segregation of state and federal causes of action. These data also allow investigating how generally applicable litigation doctrines have influenced pleading patterns, even subduing the impact of the two major U.S. Supreme Court rulings in this area. These findings lead us to conclude that this type of litigation has not induced and is not likely to induce major emitters to embrace preemptive emissions legislation as a risk-reducing compromise