climate science | Environmental Law Institute

Planetary Crises: The End of “Our Fragile Moment” on Earth?

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Author

Lisa Benjamin - Lewis & Clark Law School

Lewis & Clark Law School

Current Issue

May-June 2024

Issue

With climate change and extreme weather events making daily headlines, Michael Mann’s new book Our Fragile Moment: How Lessons From Earth’s Past Can Help Us Survive the Climate Crisis provides an in-depth look at our planet’s critical events triggered by nature at work alone—illustrating what we can learn from them while battling our own, human-made, crisis.

Working in climate change, I often hear the claim that the Earth has been through, and survived, several crises in the past, and the climate crisis will be no different than these earlier events. While climate change is nonetheless painted in stark detail in this book, Mann provides a user-friendly guide to what kind of events have preceded this current crisis, and how various species did (or did not) survive these past junctures. Most importantly, he finds parallels (and also differences) between these past events from characteristics of the climate crisis. The outcome is both reassuring in some aspects, and frightening in others.

Mann is a renowned climate scientist, and director of the Center for Science, Sustainability & the Media at the University of Pennsylvania. One of his most famous works is the “hockey stick” graph (first published in 1990s), which became an icon of climate science. It indeed looks like a hockey stick lying on its side, blade tilted up. Global average temperature is on the Y-axis, time along the X-axis. The graph shows thousands of years of a relative stable climate flat as time progresses along the X-axis—but the blade sticks up at the far right when temperature increases rapidly due to human-induced changes to the climate since the beginning of the Industrial Revolution.

As Mann himself describes the graph in his book, the sheer simplicity of the sharply angled line made it so popular: “You do not need to know about the complexities of climate science to understand the message of the graph: that we are perturbing our planet’s climate in a profound way.”

The graph also made Mann the target of significant attacks from climate deniers. As a result, Mann sued two climate deniers for defamation, and over a decade after initiating the litigation, in February he was awarded $1 million in damages by a jury. His work, and public persona defending climate science, has made him a profound and important thinker in the climate change arena. Most relevant for this piece, his new publication makes complex Earth history accessible to non-scientists.

Mann’s book is clearly written and easily accessible. It charts major events in Earth’s history, and connects each to the climate crisis. He also helpfully weaves in his own personal narrative and experiences with some of the effects of the climate crisis that we see today.

The result is some tamping down on climate doomism—while the climate crisis has some hallmarks of these other catastrophic events, it does not include all of them. As a result, he helpfully navigates the reader toward an understanding that the climate crisis is real, requires urgent attention, and may cost hundreds of millions of lives if more urgent political action is not taken. But he is also careful not to fall into the mire of the inevitable destruction of human civilization from climate change. Instead, he links what the climate crisis might look like with each degree or fraction of a degree of warming.

He is also very careful in this work to clarify the narrative around uncertainty. Many climate sceptics and climate deniers point to uncertainty in climate models to build a tale that we do not need to act urgently on climate change. Mann takes the opposite view. In many parts of the book he illustrates that uncertainty is not our friend. Some climate models are not able to, or not accurately able to, account for certain phenomena, and so may be overly conservative and thereby can underpredict key impacts.

An example he gives toward the end of the book is the melting of the Greenland ice sheet, which appears to be exceeding past model predictions. The additional water entering the oceans would not only raise sea levels, but may contribute to the collapse of the Atlantic Meridional Overturning Circulation—and this could already be underway. These underpredicted events could interact with other climate-related events, and cause more cascading negative effects than currently anticipated. In this respect, Mann is clear that uncertainty is cause for more (not less) urgent action on reducing emissions of fossil fuels and other measures.

Mann begins his work by explaining how fragile the climate conditions are that allow humans to live on Earth. He explains that there is a relatively narrow envelope of climate variability within which human civilization remains viable. The concentration of carbon dioxide in the atmosphere today is already well outside the range that existed when our civilization arose. This is our fragile moment. Despite this, there is also, within Earth’s history, lessons around climate resiliency (he explains this through the Gaia effect). As a result, while climate change is a crisis, it is, for now, a solvable crisis. While we have the advantage of anticipating the future through climate models, he cautions that we also have to respect planetary thresholds—exceeding those thresholds will exceed the adaptive capacity of human civilization, so past examples of societal collapse are important warnings for us to heed.

Mann walks us through the Permian-Triassic extinction (or the Great Dying) 250 million years ago. Ninety six percent of marine species died off, along with two thirds of amphibian and reptile species, and one third of insects. What caused this event? Spiking levels of carbon dioxide caused massive heat and drying, and dramatic falls in oxygen, leading to hypoxia, all probably caused by volcanic eruptions. These events were all concentrated on the one continent on the globe at the time, which geologists call Pangea.

Our input of carbon dioxide is actually more rapid than that which occurred during the Great Dying; indeed, it is almost a hundred times faster, which is not good news, particularly for our marine environments. Recent research demonstrates that the oceans are warming faster than models originally predicted. Again, as Mann reiterates throughout his work, uncertainty is not our friend.

While today we have similar effects of atmospheric carbon dioxide increases and ocean acidification going on, we do not seem to have other similar contributors to the Great Dying, such as atmospheric anoxia (lack of oxygen) or the global hydrogen sulfide “stink bomb” effect (think rotten eggs) so while there is cause for concern, we are not automatically doomed to replicate the Great Dying.

Mann also draws comparisons, and distinctions, with the K-Pg event—the asteroid collision in what is today Mexico’s Yucatan region which led to the extinction of the dinosaurs. This massive event created significant cooling, not heating. But it is the rapid scale of the change which should give us pause. Plants and animals cannot adapt to rapid changes, and the rate of change today of shifts in climate zones exceeds the ability of species to adapt and move to more favorable regions.

Similar lessons can be learned from the Paleocene-Eocene Thermal Maximum (otherwise known as Hothouse Earth). This period of rapid warming occurred 55 million years ago. Rapid releases of carbon that accompanied this event are probably the closest analogy we have to the existing climate crisis. And tellingly, the elevated levels of warmth lasted for 200,000 years after the Hothouse Earth event was triggered.

While our rate of warming is faster, Hothouse Earth did not see a “methane bomb” such as the one that concerns us today with permafrost melting (although he caveats this, as our methane locations differ), and Hothouse Earth was characterized by greater climate sensitivity. This means there is good news and bad news. The good news is if we maintain the climate policies we have today, we are unlikely to experience the same Hothouse Earth dystopia. The bad news? If we do not ambitiously increase our climate action and instead reach the upper end of temperature predictions (7°F by the end of the century), Mann directly states that we and our progeny are in for a world of hurt.

Mann ends with a balanced call to action. Instead of submitting to doomsayers and the emotions of fear, anxiety, and depression, which can lead to passivity, he charts a call to action through the use of righteous anger. The failure of ambitious climate action is not a failure of technology, science, or even society. It is a failure of politics—funded and underpinned by climate deception tactics of the fossil fuel industry. The identification of these bad actors can motivate us to engage in political action to combat these forces.

He ends with a measured and sober picture of the future. Even in a business-as-usual scenario, where we do not exceed 3°C by the end of this century, there will be no methane bombs, no runaway warming, and no Hothouse Earth. But there will be a tremendous amount of human suffering, species extinction, loss of life, chaos, conflict, and destabilization of social structures.

This would be the end of our fragile moment—and is not a world any of us should want to live in. According to Mann, if we seize this brittle juncture to rapidly phase out fossil fuels and take other urgent and ambitious action on climate change, we should not have to live in such a world.

Lisa Benjamin is an associate professor at Lewis & Clark Law School.

On Michael Mann's Our Fragile Moment.

Enforcement Epiphanies and What to Do About Greenhouse Gases

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Author

G. Tracy Mehan III - Scalia Law School and American Water Works Association

Scalia Law School and American Water Works Association

Current Issue

September-October 2023

Issue

“There is a great deal of ruin in a nation,” said Adam Smith. Cynthia Giles sees things similarly with respect to environmental enforcement and regulatory compliance. The former is never up to the task, and the latter is less than stellar.

In Next Generation Compliance: Environmental Regulation for the Modern Era, the former Obama EPA enforcement chief seeks to set matters right, putting emphasis on smarter rulemaking that necessitates or compels compliance by regulated entities while reserving limited enforcement resources for more strategic or innovative pursuits.

“We know now that the dual assumptions at the foundation of nearly all environmental regulations—that most companies comply and that it is up to enforcement to take care of the rest—are wrong. In fact, serious violations are widespread. And the principal driver of outcomes isn’t enforcement, it’s whether the regulations are tightly structured to make compliance the path of least resistance, so compliance is good even if enforcement never comes knocking,” writes Giles. “These essential truths are the difference between a rule that is great in theory and one that delivers emission reductions in real life.”

Summarizing an extensive body of research by the Government Accountability Office, EPA programs, its Office of Inspector General, and independent scholars, Giles maintains that the “rate of serious noncompliance—violations that pose the biggest risk to public health and the environment—is 25 percent or more.” Serious noncompliance rates for large facilities are 50 to 70 percent or more. Inspections and enforcement actions can never get ahead of the curve. In addition, drafting regulations on the assumption of 100 percent compliance, leaving enforcement to deal with the outliers, distorts the benefit-cost analysis.

Next Generation compliance is “about designing a rule so that compliance is the default.” That is her thesis. Simplicity, elegant design, and new technologies allowing for real-time monitoring, electronic reporting, and sophisticated analytics “will put pressure on companies for better performance at the same time that they make it harder to hide.”

Giles is a full-throated defender of command-and-control regulation and enforcement but is honest about its failures. Unfortunately, she parts ways with many critics of traditional regulation who might, in fact, concur with many of her recommendations.

One chapter of her book has the unfortunate title, “The Ideologues: Performance Standards and Market Strategies.” Government is a political game, and that game is won by addition not subtraction. While the author claims to “eschew[] ideology,” she spends too much capital on ideological score-settling rather than seeking common ground and points of convergence.

For instance, Giles is generous in her praise for the premier market-based program of all time, the acid rain cap-and-trade program authorized by the Clean Air Act Amendments of 1990. It was supported by only one environmental group at the time, the Environmental Defense Fund, to its everlasting credit. She rightly points out that, for the program to work, there had to be rules of the game, so to speak, as well as program design elements that were essential to maintaining the integrity of sulfur dioxide trades, specifically continuous emissions monitoring systems (CEMS) and reporting among others.

Notes Giles, “When the monitoring equipment was not working properly, the utility was required to report emissions using very conservative assumptions. If the CEMS weren’t operating reliably, the company had to assume emissions that were most likely much higher than its actual emissions”—a powerful incentive for power utilities to make sure the system was working properly. There were also automatic penalties for companies that didn’t have enough credits or allowances and reductions.

In Giles’s judgment, “The Acid Rain Program . . . worked well not because it was a market program, but because it created a regulatory box so tight that compliance was the only way out.” Still, she argues that many proponents of environmental markets learned the wrong lessons from the program. “Take away cap and trade, and the compliance outcomes would have been the same.”

This is not a plausible claim given that the “box” wouldn’t matter but for Ronald Coase’s Theorem and the control-cost differential of different sources in the utility sector creating huge incentives to trade. In truth both the market element and the rules guiding its establishment were necessary but not sufficient conditions of success. They were mutually dependent.

Both Giles and the “Ideologues” have a point. Careful program design and sound rules, command and control if you will, are important as are the laws of economic behavior and incentives. She is not wrong when ultimately declaring that “the success of markets depends on skillful use of command and control.”

The most useful and lasting contribution of ;Next Generation Compliance is to be found in Chapter 5, “Next Gen Strategies. A Playbook.” There Giles demonstrates her savvy and experience with compliance issues and offers a smorgasbord of techniques which she believes can establish compliance as the default option in environmental rulemaking.

Continuous monitoring; self-reporting of facts, not conclusions; third-party verification and auditing; third-party information reporting; data analytics; machine learning, and other tools are described in detail and with granularity. Some recommendations may be problematic, depending on circumstances, such as shifting the burden of proof and requiring a company to prove that it is not in violation when, say, satellite data detects a polluting incident. But technological developments are clearly creating new ways to optimize compliance in all environmental programs.

In terms of cumulative impact, one does wonder about, first, the costs of Next Gen requirements, hardly mentioned in the book, and second, at what point Next Gen crosses the line into the “Surveillance State.” These concerns are implicated in the upcoming Supreme Court case dealing with the Chevron doctrine and a challenge to a rule requiring fishing vessel owners to pay the costs of federally mandated monitors. Next Gen at sea?

Cynthia Giles offers three chapters on dealing with “the existential crisis of climate change,” applying Next Gen thinking to issues of zero-carbon electricity, the past mistakes of low-carbon fuels, and innovative strategies to cut methane emissions from over a million oil and gas wells in the United States.

Next Generation Compliance is a challenging and stimulating book. It bears careful study, and it should be the basis for lively discussion within EPA and the environmental policy community generally. One can read Giles as not just a compliance and enforcement authority, but as one who seeks to rectify one of the classic causes of market and regulatory failure—asymmetric information.

Another former Obama official has a very different take on climate change. Steven E. Koonin served as undersecretary for science at the Department of Energy. A graduate of Caltech and with a Ph.D. from MIT in theoretical physics, he is a member of the National Academies and has published over two hundred peer-reviewed papers on astrophysics, scientific computation, energy technology, and climate science. He is also a professor at New York University.

In Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters, Koonin acknowledges warming during the past half century but believes that limited observations and understanding are insufficient to usefully quantify either how the climate will respond to human influences or how it varies naturally.

“However, even as human influences have increased five-fold since 1950 and the globe has warmed modestly, most severe weather phenomena remain within past variability. Projections of future climate weather events rely on models demonstrably unfit for the purpose,” claims Koonin. Moreover, “Most extreme weather events show no long-term trends that can be attributed to human influences on the climate.” He goes through all the data on hurricanes, sea level, GDP, forest fires, and the like.

The most compelling part of this technical, dense book is its prudential argument that the quest for a carbon-free world is a “chimera” (Chapter 12). It is “essentially impossible.” The concentration of carbon dioxide in the atmosphere grows by roughly half of the amount emitted each year, the result of cumulative emissions over time remaining there for centuries. Moreover, global energy demand is expected to grow by 50 percent through mid-century. The math is not kind.

Given Koonin’s pessimism he call for “Plans B,” plural, specifically geoengineering and adaptation. The former idea is untested but merits greater research. The latter is common sense. Adaptation, notes Koonin, is agnostic as to causes, proportional in response, locally driven, autonomous (spontaneous), and effective—as demonstrated by the Dutch and human beings living everywhere from the Arctic Circle to the tropics. It needs to be elevated as a policy and program comparable to mitigation.

G. Tracy Mehan III is a former assistant administrator for water at EPA, an adjunct professor at Scalia Law School, and executive director for government affairs at the American Water Works Association. He may be contacted at gtracymehan@gmail.com.

G. Tracy Mehan III Examines an Enforcement Epiphany.

Climate Science on the Docket: How Held v. Montana is Bridging Science and Law

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Jarryd Page

Friday, August 11, 2023

In June, arguments wrapped up in a Montana trial that was both routine and historic—Held v. Montana. Routine, because plaintiffs are calling upon Montana 1st Judicial District Judge Kathy Seeley to determine whether certain provisions of Montana law violate their rights under the state constitution. That will involve statutory interpretation and constitutional law, as applied to the facts—standard fare for a state trial judge of general jurisdiction.

Unpredictable Knock-On Effects of Hot Arctic and Melting Cryosphere

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Author

Craig M. Pease - Former Law School Professor

Former Law School Professor

Current Issue

September-October 2022

Issue

In the words of James Anderson, a scientist best known for his seminal work on ozone holes, “Defining [climate change] as an increase in global mean temperature is the worst way to describe the severity of the problem.” Even fully acknowledging increasing temperature’s direct, devastating, and increasingly apparent impacts on humanity, it is now almost a distraction. The most significant threats arise not from temperature but knock-on effects.

A Rube Goldberg machine is a preposterous, though illustrative, example. You push one domino, other dominos fall, a water bottle is pushed over, a ball rolls, a fire is lit, and eventually a balloon pops. There is a causal chain. But it is long and tortuous. Everything obeys well known natural laws, yet it is nonetheless a practical impossibility to predict what will eventually happen.

The very core of our climate system is now undergoing deep structural changes, because of melting ice in the Arctic and continental glaciers, and because Arctic temperatures are increasing fast compared to the rest of Earth. Cambridge sea ice scientist Peter Wadhams lays out important knock-on impacts of this in his book A Farewell to Ice. Reduced temperature differentials from the Arctic to the equator slow the currents transporting warm tropical water to the North Atlantic, and cause instabilities in air circulation patterns—for example Rolling Rossby’s, which are wanderings in the northern hemisphere jet stream that simultaneously explain abnormally high temperatures in Alaska and abnormally cold temperatures in Texas.

Even a single one of these knock-on effects may have stunningly complicated meteorology, physics, and chemistry. In a 2012 Science paper, Anderson and colleagues lay out how increasing temperature may cause more frequent and violent thunderstorms, injecting more moisture into the stratosphere, which water, through a series of chemical reactions involving anthropogenic aerosols and chlorine compounds, could eventually destroy ozone. Anderson carefully avoids stating that this is certainly a problem, rather asserting it could be a problem. Such honest but unsatisfying conclusions run rampant in the technical literature of knock-on effects.

Methane is a potent greenhouse gas whose atmospheric levels are now increasing at an accelerating rate. It is the focus of C.-H. Cheng and S. Redfern’s recent Nature Communications paper. Methane levels are determined by numerous sources, sinks, dynamics, and feedbacks. It is released into the atmosphere from natural sources (e.g., wetlands), from anthropogenic sources (e.g., landfills and cattle), and from sources that are becoming more important as temperature rises (e.g., permafrost melting). Methane in the atmosphere is removed into sinks (e.g., the oceans). These authors use high quality climate/chemistry models and good data, yet ultimately—like Anderson—reach quite cautious conclusions about how all this works together to determine atmospheric methane levels.

Within the last several years, a team led by atmospheric chemist Y. Zhao has published surprising findings about a methane knock-on effect. Once in the atmosphere, methane gets broken down into chemicals that are not greenhouse gases. Central to that breakdown are hydroxyl radicals, an extremely reactive chemical. Recent discoveries show that carbon monoxide from forest fires reacts with hydroxyl radicals, thereby preventing them from ever disarming methane—hence extending the life in the atmospheric of this potent greenhouse gas. Complicated. Yet only an extremely small chunk of the chemistry, physics, and biology that determines atmospheric methane levels.

Perhaps worse, some knock-on effects self-reproduce—what the technical literature calls positive feedbacks. Effectively, these are daisy-chained Rube Goldberg machines, looping back on themselves. For example, Arctic sea ice melting increases absorbed sunlight and hence heat, thereby further increasing melt of ice and permafrost, causing ever-increasing temperatures, methane releases, and melting ice.

Can all this be made more simple? I think not. The science of knock-on effects is grounded in state-of-the-art models and the best available data, and is careful, thoughtful, and thorough. The science is not deficient. Rather, climate systems are just extraordinarily complicated.

Some knock-on effects will benefit humans. Some will be benign. Most will never be a serious threat. Yet many aspects of knock-on effects are beyond scientific ken. And new and potentially important knock-on impacts keep popping up. Though many quickly self-limit, others are climatic chain reactions, with the potential to spiral out of control.

Human civilization faces a veritable horde of knock-on effects. Within that horde, there may well lurk something truly evil.

Unpredictable Knock-On Effects of Hot Arctic and Melting Cryosphere.

Judging in a Changed Climate

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Author

Sandra Nichols Thiam - Environmental Law Institute

Paul Hanle - Environmental Law Institute

Environmental Law Institute

Current Issue

July-August 2022

Issue

Sweating judge fanning himself with papers

Climate change is driving a groundswell of litigation in a very broad range of legal categories. These lawsuits are critical not just for the parties in the cases but for the many social impacts that will reach far beyond the specifics of a given controversy. Many of these matters gain urgency in view of the lag in policy responses to the challenges posed by a changing natural environment. Plaintiffs in this wave are asking not so much for novel uses of the law as for applying existing law and precedent to a changed factual context.

When there are such significant shifts in litigation trends, judges typically prepare for the challenge by identifying changes in management and resources they may need—and by seeking education on new issues. Because of the profound implications of climate change and efforts to stem it, and the nature of the science that explains it, today’s judges are seeking just this kind of support. Through ELI’s Climate Judiciary Project, we are meeting the need for specialized education on the science and law of this threat.

Climate change is already affecting every aspect of life. It runs through our environment, society, and economy. Right now, species vanish from the Earth faster as habitats decline, deeper droughts and more severe heat waves afflict communities, sea-level rise places infrastructure and buildings at risk and financially burdens governments, owners, and insurers—all because the oceans and troposphere have grown warmer.

Yet the dynamics of climate change are so difficult to grasp, the impacts so vast and trends so slow, that this severe problem can seem far removed and abstract to most people. Atmospheric carbon increases by only a few parts per million each year. In the same time span, sea levels rise by a few millimeters. The global average temperature has risen but two degrees Fahrenheit in a century and a half. These changes are scientifically significant but virtually undetectable to the average person, making it particularly hard for society to respond with recognition, much less resolve.

The main drivers of these changes, fossil fuels, are integral to our economic system and have also been responsible for unprecedented prosperity. How to disentangle this commodity from global markets and from countries that rely on oil and gas revenues? What to do about oil and gas infrastructure around the world? What about the jobs involved? How do you begin to tackle such a massive challenge? In addition to clashing political views about the proper size and structure of government, and enormous investment by fossil fuel interests to obscure the true situation, these factors have greatly impeded society’s response to climate change despite the scientific understanding coalescing year by year.

Time is precisely what we do not have. With rising trends in sustained droughts, heavier downpours, strong hurricanes, frequent large wildfires, more extreme-heat events, and growing sea-level rise, climate change is already assaulting humanity and Earth’s natural systems—and will only accelerate in its impacts.

All of this is against a backdrop of historic injustice. Benefits of our industrial economy have often disproportionately accrued to the privileged while environmental burdens devolved in outsize portions to the disadvantaged. In a time of social and political transition, historic power structures will tend to be reinforced. Thus, the climate problem poses yet another injustice: impacts are already disproportionately felt by people of color and low-income communities who are least responsible for their creation in the United States and around the world.

While response has been painfully slow, it has already influenced our legal system at every level of government, and across every branch. Sweeping and ambitious attempts—the Waxman-Markey legislation of the 2000s and the Juliana litigation—have failed to gain the resolution their proponents sought. At the same time, a steady flow of less-conspicuous actions in policymaking and in quotidian federal decisionmaking were mainstreaming climate change action. These included legislative and executive actions like the Infrastructure Investment and Jobs Act passed last year and President Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad. Climate is now a constant in federal environmental and energy law decisionmaking, in environmental assessments, Endangered Species Act listing decisions, and permitting of gas pipelines.

These federal actions are eclipsed by legal developments at the state and local level, where many governments have adopted greenhouse gas reduction targets, developed climate action and adaptation plans, and are investing in renewable energy. Both New York and California, for example, committed to reducing greenhouse gas emissions to nearly zero by 2050, and Hawaii passed a law committing to achieving 100 percent clean energy by 2045. In recent years, the pace of legal activity has intensified and diversified as pressure grew from civil society, (mostly) progressive politicians, and the private sector. Despite political swings, the trend over the last few decades is clear: climate-responsive laws and policies have accumulated over time. Accompanying the steady drumbeat of growing climate impacts, a rule of law of climate change is emerging.

This new body of law and policy related to climate change is developing in response to the challenges—as law has always evolved in response to new circumstances. But it is taking place in the absence of a comprehensive legal and policy strategy. The law and policy transition is accelerating, but scientific evidence and impacts themselves are outpacing this progress. In addition, there remain powerful countercurrents against an emerging consensus. In particular, some in the fossil-fuel industry remain resistant to adjusting to the new realities, with, for example, counter suits over their role in creating a climate crisis.

The courts have a critical role to play in this transformation of society, our economy, and even our governance system. Rights and responsibilities will be rewritten. Duties of care and reasonableness redefined. Government roles reshaped and reallocated. All these are matters to be processed through the courts. Litigation has the benefit not only of addressing the specific controversy between the parties to the case but of uncovering previously unknown efforts to defraud the public, raising the public profile of the issues, and providing an incentive for adaptation efforts as the standard for reasonable behavior changes.

As defined by the Intergovernmental Panel on Climate Change’s most recent report, climate litigation is an attempt to control, order, or influence the behavior of others in relation to climate governance. Some define the category as “litigation motivated by a concern about climate change or climate change policy” and others, such as the Sabin Center for Climate Change Litigation, more broadly as “cases that raise material issues of law or fact relating to climate change mitigation, adaptation, or the science of climate change.” Regardless of where you draw the boundary around these cases, more and more of them are being filed.

As of April 2022, the Sabin Center Database documents over 1,400 climate cases in the United States. The rate of filings is increasing—82 cases were filed in 2017, and the number almost doubled by 2018, with 159 cases filed that year. Total cases nearly doubled between 2017 and 2020, from around 650 to 1,200. The current trajectory of filings, coupled with continual refinement of climate science that yields more robust results, suggests this trend may well accelerate.

Climate litigation involves parties from all levels of government—federal, state, and local—non-governmental organizations, industry and industry associations, and individuals. Plaintiffs pursue an expanding range of legal theories, extending to a wide variety of constitutional, statutory, administrative, and common law claims, at both the federal and state levels. The focus of these claims includes issues related to adaptation, mitigation, and financial risk, with overlap among the issues central to some cases.

While more and more cases are being filed, it seems the courts have treated core questions about climate change response as a hot potato. While Massachusetts v. EPA gave plaintiff states standing and found that the agency was required to regulate carbon emissions from motor vehicles, and the resulting endangerment finding was also upheld, subsequent efforts to carry out this mandate have been hung up. In Connecticut v. AEP, the Supreme Court found that most federal common law claims are displaced by the Clean Air Act, effectively pushing such claims to state courts. In Native Village of Kivalina v. ExxonMobil, the Court held that money damages are also displaced to state courts. When youth plaintiffs in Juliana took a different tack and argued for a constitutional right to a stable environment, the Ninth Circuit demurred, saying that the courts are not a proper venue for addressing climate change. The Supreme Court is currently reconsidering the question of EPA’s authority to regulate carbon emissions in West Virginia v. EPA. In the meantime, many of the state cases seeking to hold parties accountable for climate change have been hung up at the procedural stage.

While small government ideology and continued resistance from fossil-fuel producers played important roles, these decisions reflect primarily that as a society we have not had the requisite reckoning about how we will allocate responsibility for climate change. That reckoning is coming, and the courts will play a critical part in shaping the future governance of our changed environment and society.

Crucial to humanity’s response is scientific understanding of the causes and effects of climate change. This understanding, built squarely on long-understood basic science, has emerged from the careful collective efforts of hosts of experts. Leading scientists such as Inez Fung have dedicated decades to understanding the dynamics of Earth’s atmosphere. Christopher Field of Stanford University and Katharine Mach of the University of Miami have dedicated their careers to understanding the relationships between changes in the climate system and impacts felt on the ground. Benjamin Strauss, CEO of Climate Central, has led research describing the status and trends of sea-level rise and its economic and social implications. And still others, such as Jalonne White-Newsome, document the relationships between climate change and health equity. These findings and many more will be essential to enabling judges to apply laws to the new realities.

Judges will need to understand the science at issue in cases, but they also require a fundamental understanding of what is in store for us from climate change, and why it is happening. To fulfill their role, judges must be able to respond in an informed way to these new challenges. The law, policy, and justice challenges posed by climate change do not require new kinds of law, however. Rather, what is needed here is the clear-eyed application of existing law and precedent with understanding of how completely the entire factual landscape has changed.

At the Environmental Law Institute, we strive to find the best ways to use laws and policies to address society’s environmental priorities. The Institute was established in 1969 to shepherd the development of the new, emerging area of law related to the natural environment. We document and disseminate law and policy trends, and we work with partners to use law and policy to address their problems. For these efforts, we seek the best, most reliable information about scientific facts and effective legal approaches. One thread that runs throughout is our specialized education to support stronger governance.

Prominent is our long-standing program educating judges, which sprang from a request for help in this regard from Judge James L. Oates in his speech accepting the 1989 ELI Award. Starting a year later, judges have come to ELI seeking analysis of foundational and emerging topics related to environmental, public health, and natural resource rights and responsibilities in their jurisdictions. In 32 years, the program has enabled thousands of jurists in 28 countries—including federal and state judges in the United States—to fully and effectively play their role in addressing society’s challenges.

ELI is not alone in using education to advance environmental solutions. Climate Central is another such organization; it researches and reports on the science and impacts of climate change. It too targets influential audiences—such as television meteorologists—as well as the general public.

In 2018, former president of Climate Central Paul Hanle was seeking a new focus for his climate science education efforts. On the climate policy front at the time, the Trump administration was moving to block and undo established policies and programs at every level, pushing much of the action to the courts. In his scoping to identify opportunities to advance climate education, he met with former BP Energy Vice President David Van Hoogstraten, a long-time ELI friend, who suggested the power that might arise from bringing Paul’s climate science education to ELI’s judicial education program.

Recognizing the potential of such a program, but also the challenges associated with introducing a new and potentially contentious topic to the judicial education authorities, who very carefully protect judges from controversy and limit educational programs to only those considered critical to playing their role on the bench, ELI joined with Paul to test if a project on climate science for judges might be possible.

In early 2019, Sandra Thiam returned to ELI after five years abroad, to join Paul’s audacious effort to find out if judges saw a need for education on climate science and to meet that need. Sandy had a track record of educating judges in ELI’s international programs over many years and was excited for the chance to apply her experience to addressing one of the most pressing issues of our time.

Judges are, by definition, generalists. Very few have a background in science. And the science relevant to much climate litigation has only become clear in the last several years, long after any sitting judges completed their education. Lawyers often joke that they chose to pursue law in order to avoid science and math. The joke is not so funny when it affects the outcomes of cases.

The need for judges to understand elements of science is not new. In his introduction to the third edition of the Reference Manual on Scientific Evidence, Supreme Court Justice Stephen Breyer described how scientific and technical issues arise in litigation in our modern society. The manual provides information to judges on common scientific issues. Educational programs on key aspects of science also occur routinely. Common topics include implicit bias, neuroscience, forensics, and technology. These programs are convened by such institutions as the Federal Judicial Center, governed by a body chaired by the chief justice of the United States, as well as independent organizations such as the National Judicial College and the National Center for State Courts.

The project that we envisioned would be true to ELI’s core principles of being apolitical and serving as a technical informational resource without advocating for any policy or legal outcome. And it would further adhere closely to the core of the scientific endeavor—to explain the objective evidence and scientific understanding that climate change is real, human-caused, and has far-reaching and serious consequences for society and the planet. The content of the project would be mainstream science as reflected in assessments and consensus reports of leading scientific institutions such as the National Academy of Sciences, National Climate Assessment, and IPCC. It would focus particularly on the science that judges needed to know for the climate cases that were coming. And to do so, we would engage with the leading experts on these topics to shape their knowledge for presentation to the judiciary.

When we began to introduce the idea of education on climate science—at a judicial education conference on environmental law in Washington in 2018—several judges offered strong encouragement. One participant, a state chief justice, observed that there was a real need for this kind of program—and no one else was doing it. Consultations with leaders in judicial education helped us to understand current priorities. We were soon invited to submit a proposal for cosponsorship with the Federal Judicial Center of a pilot series of climate science seminars for federal judges to test if they thought it was needed. Leading universities around the country stepped up to host the pilot series, each for judges in the federal circuits in their region. We enlisted the aid of the American Association for the Advancement of Science to help us recruit leading scientists and evaluate if what they were presenting matched what judges expected. When we began the pilots, we had many questions about whether judges would see our content as a priority and how to meet their needs. So, we designed the pilots to encourage discussion and feedback from the judges about content and approach.

A long-time partner, the Sabin Center for Climate Change Law at Columbia University, hosted our inaugural program in June 2019 for judges from across the 1st, 2nd, and 3rd federal circuits. They came from western New York and San Juan, Puerto Rico, Boston, and the greater New York area. At our invitation, two New York state judges joined the group.

Radley Horton of the Lamont-Doherty Earth Observatory at Columbia, who had been a convening author of the Third National Climate Assessment, opened the program with lessons on the well-established science explaining why the climate is warming, the body of evidence that confirms it, and some impacts associated with the changing climate. Leading climate law expert and Director of the Sabin Center Michael Gerrard gave the first of many presentations he has contributed to our project, with an overview of trends in climate litigation, the history of litigation over EPA’s mandate to regulate greenhouse gases, the relatively routine environmental law cases, and the high-profile cases brought by cities and states against the oil companies.

While we learned more about sensitivities and interests at each of the five sessions, the enthusiasm for this content amongst the judges was unmistakable from the first. Our participants have consistently expressed the importance of being aware of such a critical new context in order to be able to play their role as judges. Overall, the message from participants has been clear: judges need and want the climate science education that we were delivering, and they are increasingly giving it priority in their continuing education.

The success of the pilots and indeed the project overall has relied on the contributions of dedicated and skilled experts to our programs and materials. Over the course of the pilot series, we worked with leading scientists from nine different institutions to present their expertise for judges. Two other climate litigation experts, in addition to Professor Gerrard, Professors Anne Carlson of UCLA and Dan Farber of Berkeley, gave legal talks during the sessions.

Altogether, in the pilot year, we delivered five half-day sessions to approximately 80 federal and state judges in New York, Washington, Berkeley, Chicago, and Atlanta. In addition to these programs, we were invited to present several sessions at scheduled gatherings of important groups of judges. Most noteworthy, perhaps, was the annual mid-winter meeting of the Ninth Federal Circuit a few days after it handed down the momentous decision to dismiss Juliana, where we delivered the first plenary session to approximately 100 judges including the presiding judges in that case.

Our final session took place in Atlanta on the fateful day of March 13, 2020, and was attended by judges from the 4th and 5th federal circuits as well as from North Carolina. Professor Gerrard joined scientists Karen Levy, Kim Cobb, and Marshall Shephard for that session. In spite of the world closing down over Covid, our program went ahead as planned with good attendance, a testament to the importance of this issue to judges.

By the time the pandemic spread, we had presented our program to judges from almost all of the federal circuits and four states. It was clear that there was a demand for the content. In response, we launched the Climate Judiciary Project.

The Climate Judiciary Project exists to serve the needs of the bench and relies on the contributions of climate scientists and legal scholars. Since its inauguration, we have attracted the support of leading federal and state judges, who connect the project with opportunities to reach more judges and to develop educational materials to meet their needs. We have expanded our partnerships to include the National Judicial College and the National Center for State Courts, as well as the Conference of Chief Justices. Through these groups, we have a steady stream of invitations to give presentations of various lengths, both virtually and in person, in different parts of the country.

One particularly exciting program is Judicial Leaders in Climate Science, a partnership with the National Judicial College. It is a year-long program with a cohort of 23 state judges that combines climate science and leadership. Coming from a very wide range of backgrounds from states and territories around the country, the group responded with great interest to the leadership and science curriculum we presented in March. Many of the participants told us how much they appreciated the information about how climate scientists validate climate facts. Even more jurists appreciated connecting with science presenter Benjamin Santer on a personal level, and understanding the values and rigorous scientific way that he has responded to challenges to his work. The group left the first session eagerly anticipating future gatherings, most notably a deeper dive into the science in Woods Hole in September.

Engaging directly with the judges on these topics is the most powerful way of sharing climate science information they need to apply the law to these new realities. Written materials will allow us to deepen our impact. After several years of conducting programs, we have polished our content and messaging and are developing a first-of-its kind curriculum designed explicitly to meet judge’s needs for understanding climate science that is relevant to litigation.

The work is overseen by a distinguished advisory committee of 13 leading judges, scientists, and legal scholars—the top-tier of such leaders in the nation. We draw our content from the established literature of the nation’s and the world’s expert climate scientists, represented by the extensively validated reports of the National Academy of Sciences, the National Climate Assessment, and the Intergovernmental Panel on Climate Change (a program of the United Nations and World Meteorological Organization).

The curriculum includes information on both the specific areas of climate science that are likely to arise in cases and their methodologies—in particular emphasizing how norms of science differ from norms for the legal process and how climate scientists know what they know. Topics range from basic climate science, climate justice, impacts, attribution, and solutions to the uses of this science in administrative law, procedure, tort litigation, and other kinds of cases. Each module is being written by leading experts on the topic.

Whether through dissemination of modules of the curriculum, or by delivery of seminars and webinars, in the next three years we will focus our outreach on states and federal jurisdictions where cases will be heard. And in addition to the scientists who have already become CJP partners, we are also developing a cadre of outstanding senior and mid-career scientists with expertise on the topics critical to upcoming litigation to lead our seminars.

The trajectory of climate impacts will continue to increase for the foreseeable future. Efforts to use the law to stem greenhouse gas emissions and to adapt to these impacts will continue and ensuing controversies will be brought to court. We need judges to help make sense of rights and responsibilities in this new world.

To be able to do that, they need to become familiar with the chains of causation and trends of impacts that scientists are continuing to refine and verify. Our children are faced with the challenges of our legacy of climate change. But they have the benefit of receiving a clear scientific understanding of the unequivocal nature of human-caused warming. Vast scientific effort has given us this opportunity. Jurists currently on the bench, along with the rest of society, are just catching up to these realities. We will look to judges to sort out rights and responsibilities in the coming energy transition. The Climate Judiciary Project is supporting the bench in this process, providing the connection to the scientific community that jurists need to respond to our changing environment. R&P

ELI Policy Briefs represent the conclusions of the ELI Research & Policy Division. They first appear in the Forum and are later distributed in booklet form to other professionals, key decisionmkers, and the public.

ELI POLICY BRIEF No. 17 Spurred by government actions and court decisions—and accompanied by a drumbeat of growing impacts—a rule of law of climate change is emerging. ELI’s Climate Judiciary Project is preparing the bench to understand the science and ensure justice in the new legal environment.

Just Let the Engineers, Medical Doctors, and Scientists Speak

Read more about Just Let the Engineers, Medical Doctors, and Scientists Speak

Author

Craig M. Pease - Scientist and Former Law School Professor

Scientist and Former Law School Professor

Current Issue

July-August 2022

Issue

“I’m fed up with people being killed because [the engineering] profession contains a bunch of dogmatic idiots. . . . The right thing to do here is pretty obvious: slow down the cars. . . . When you enter an urban environment . . . 15 mph would be the top in my opinion. . . . But Chuck, we can’t do this, says the incompetent fool of an engineer. In my world—in a just world—that engineer loses their job tomorrow (and their license) because they are a danger to society.”

So it came to pass that, in a December 2014 blog post, land use planner and Strong Towns founder Charles Marohn, licensed professional engineer PE #40142, kicked off a still ongoing battle with the Minnesota Board of Licensure.

Marohn prevailed in the original administrative complaint lodged against him for that post, alleging a violation of a board rule stating “a licensee shall avoid any act which may diminish public confidence in the profession.” That did not end the matter. Some years later, the board received a second administrative complaint against Marohn, arising from a temporary lapse in his professional registration. Rather than expeditiously resolving that minor technical violation, the board is pursuing, in a state-contested hearing, what strikes me as a draconian penalty. In early 2021, Marohn filed a federal First Amendment lawsuit against the Board of Licensure, a case dismissed in late 2021, because of the pending state proceedings.

These proceedings thwart Marohn’s efforts to improve pedestrian and bicycle safety. But it is worse. Marohn observes that the typical post-World War II subdivision has a low density of economic activity, in comparison to the high long-term costs of maintaining infrastructure such as roads, sewers, water, electricity, streetlights, telecommunication, etc. (just ponder the density of economic activity and infrastructure in a city center, compared to suburbia). He concludes that a municipality allowing suburban property development will “experience a modest, short-term illusion of wealth in exchange for enormous, long-term liabilities [maintaining infrastructure],” which he quite correctly labels the “Growth Ponzi Scheme.”

The loner is hardly ever effective. Engineers, medical doctors, and scientists pretty much must work within institutions, be it a professional licensing board, a government land management agency, a hospital, an environmental NGO, a university, environmental compliance within a for-profit corporation, or social media. Institutions promulgate one’s technical knowledge to wider application.

Those institutions offer opportunity, yet also have a dark side. It seems inevitable that anyone applying their technical knowledge to broader society will eventually find themselves at loggerheads with some institution or another, putting them at risk of being banned, transferred, fired, condemned, sentenced, disinvited, discredited or gagged, resigned, or a party to Kafkaesque proceedings.

To cite a few examples, my scientific collaborator Dave Mattson was effectively banned from doing field work on grizzly bears in Yellowstone for his cogent and persistent critiques of park policies, and took a “voluntary” transfer to the southwest. More recently, LinkedIn and Twitter banned mRNA vaccine pioneer Robert Malone, for his thoughtful critiques of Covid vaccine safety, efficacy, and policy.

Last fall, MIT invited University of Chicago extraterrestrial climatologist Dorian Abbot to give a climate lecture, then disinvited him, capitulating to a group critical of his views on diversity in science. Not to be outdone by upstart MIT, at Berkeley, that former bastion of free speech, atmospheric physicist David Romps, then director of its Atmospheric Sciences Center, attempted to invite Abbot, but encountered significant resistance among the faculty, causing him to resign as director.

In Massachusetts vs. ExxonMobil, the state complains that Exxon misled the public about its “internal scientific knowledge” of climate change. Exxon attempted (unsuccessfully) to dismiss the case with an anti-SLAPP statute, arguing that it—the corporation—had a right to participate in public debate. Critically, this dispute is about alleged corporate rights, not about the right of scientists to speak. The scientists at corporations are almost always very gagged, by non-disclosure agreements and by corporate policies, especially those funneling external communications through media relations officers.

In a 1633 inquisition, the Catholic Church tried Galileo of suspicion of heresy, and condemned and sentenced him to house arrest. Then in 1979 the Pope commissioned the Pontifical Academy of Science to look into the matter, and in 1992—some 359 years after the fact—Pope John Paul II apologized.

Just Let the Engineers, Medical Doctors, and Scientists Speak

ELI Report

Read more about ELI Report

Author

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

March-April 2022

Issue

ELI at COP26

In the face of growing climate litigation, Institute educates judges with the science needed to decide crucial cases

While ELI names Washington, DC, as its home base, the Institute’s policy analysis and educational programming spans the globe. This fall, its efforts reached Glasgow, Scotland, where staff engaged at COP26, the United Nations annual climate summit. ELI hosted and engaged in a number of events, sharing insights on how to strengthen regulation and build the law and policy toolkit for achieving climate solutions.

As part of the summit’s events, the Institute’s Climate Judiciary Program hosted a reception on November 5 to call attention to the critical role of the judiciary in climate action. Despite an increasing number of climate-related cases worldwide, many judiciaries lack a fundamental understanding of the climate science and impacts underpinning these proceedings. CJP is the only project in the world that provides the climate science information and education judges need to make reasoned and appropriate decisions in climate cases.

Held at the Merchant’s House of Glasgow, the historic site of an over 400-year old organization,
the event shared the importance of judicial education on climate science to an international audience. Over 50 attendees joined, including leading environmental judges from around the world, influential climate scientists, leaders of NGOs and foundations, and high-level officials from the government.

On the same day, ELI also hosted a roundtable on ensuring compliance with climate regimes as part of Climate Law and Governance Day, an event co-hosted by the University of Glasgow, University of Cambridge, and University of Strathclyde. The conference gathered the global climate law and governance community to discuss challenges and solutions for implementing the Paris Agreement and other climate obligations.

ELI’s roundtable was chaired by Associate Vice President of Research and Policy Sandra Nichols Thiam and Visiting Scholar Paul Hanle. Speakers included Vice President of Programs and Publications John Pendergrass and Environmental Justice Staff Attorney Arielle King, among other top scholars, judges, and scientists. The group discussed how climate science can inform questions that arise in climate litigation, and how to bridge the gap between science and justice.

On November 6, Associate Vice President Sandra Nichols Thiam also spoke on a panel as part of the half-day event, Climate Change Legislation, Litigation, and the Rule of Law, hosted at the University of Strathclyde. Nichols Thiam spoke on the importance of capacity-building for legal actors and ELI’s experience educating judges, including recent efforts with CJP.

Beyond speaking engagements, ELI staff also attended events held by C2ES, EARTHx, and the Global Judicial Institute for the Environment, and engaged with youth activists and leaders in the climate and environmental justice movements.

ELI’s mission to make law work for people, places, and the planet fills a critical niche in strengthening governance around the world. A U.S. organization with a global presence, ELI continues to collaborate internationally to advance climate and justice solutions.

Bridging governance between countries to protect wetlands

Environmental policies typically do not cross national borders, even when the need for conservation does. One example of this transboundary challenge is the Laguna Madre wetlands, which extends 400 miles from Texas to the state of Tamaulipas in Mexico.

According to the U.S. National Park Service, Laguna Madre is “perhaps one of the most overlooked natural wonders in North America.” The wetland provides critical habitat for threatened and endangered species, including migratory birds between North and South America. But adequate management of this natural wonder is uniquely complicated, in part because Laguna Madre is politically divided between the United States and Mexico.

In November, the Laguna Madre Initiative, ELI’s Ocean Program, and Texas A&M University at Galveston hosted a weeklong seminar to develop a binational agenda for the sustainable use and conservation of Laguna Madre. The project builds on ELI’s experience in restoration in the Gulf of Mexico, as well as the expertise of ELI Visiting Scholar Enrique Sanjurjo. As a former program officer for the Gulf of California at World Wildlife Fund, Sanjurjo worked with partners in the United States and Mexico to create and implement marine protected areas, strengthen small-scale fisheries governance, and protect wildlife.

By convening partners from both sides of the border, the initiative aims to develop an innovative regulatory framework for binational ecosystem governance. The seminar featured presentations from U.S. academics, NGO partners, and government employees, including staff at the National Park Service, the National Oceanic and Atmospheric Administration, and the Texas Park Service.

Representatives from NGOs and the government in Mexico also presented, including officials from Mexico’s National Institute of Fisheries, National Commission on Natural Protected Areas, and the Tamaulipas State Chamber of Industry. Attendees from both countries arrived from academia, government, NGOs, and law.

A roundtable with fishers from the Gulf of Mexico underlined the seminar’s focus on achieving connectivity between all aspects of the Laguna Madre: ecosystems, wildlife, and people. With an eye toward establishing long-term links between policymakers, scientists, and communities, the seminar accomplished important initial steps in facilitating cross-boundary environmental governance in the area.

Local government network helps address compliance needs

When local governments puzzle over a federal environmental requirement, or need help finding resources to prevent pollution, they can turn to the Local Government Environmental Assistance Network. One of EPA’s Compliance Assistance Centers, LGEAN is a “first-stop shop” for municipal government staff and elected officials who need information on environmental management, planning, funding, and federal regulations.

Since May 2020, ELI has managed the network under a cooperative agreement with EPA. The Institute revamped the official website (lgean.net), which provides updated information and resources for local governments, and launched a new podcast and webinar series.

Notable offerings include a half-day Small Community Drinking Water Financing online workshop in November. Small and very small community drinking water systems comprise 80 percent of all community water systems, yet they often face infrastructure barriers to achieving drinking water standards. The event featured EPA officials and financing experts from the Environmental Finance Center at the University of North Carolina at Chapel Hill, who presented strategies for planning, funding, and financing to reach compliance.

LGEAN also hosted a webinar on the use of the federal Toxic Release Inventory’s data for local and tribal governments in October. The webinar detailed responsibilities governments may have in reporting hazardous materials to the TRI, as well as opportunities to leverage TRI data to stay apprised of facilities that may release potentially toxic chemicals. LGEAN’s podcast series covers topics from lead abatement to solid waste.

The network’s offerings are guided by its Project Advisory Committee, composed of leaders from major associations of local officials. They include experts from the Institute of Tribal Environmental Professionals, National Association of Counties, International City/County Management Association, Rural Communities Assistance Partnership, and International Municipal Lawyers Association.

Also represented on the committee are the Environmental Council of States, Local Governments for Sustainability-ICLEI, Solid Waste Association of North America, National Rural Waters Association, Water Environment Federation, Association of Clean Water Administrators, American Water Works Association, Environmental Law and Policy Center, and National Association of Clean Air Agencies, as well as representatives from Yale University School of Medicine and New York University School of Law.

Local and tribal governments can use the LGEAN website, provide feedback through the survey and “Ask LGEAN” feature on the website, follow LGEAN on social media channels, and participate in programs.

ELI Points to Litigation at Glasglow Climate Conference

Law Demands Dollars, Standards, and Protocols—and So Too Science

Read more about Law Demands Dollars, Standards, and Protocols—and So Too Science

Author

Craig M. Pease - Scientist and Former Law School Professor

Scientist and Former Law School Professor

Current Issue

March-April 2022

Issue

Though admitting “climate change poses a monumental threat to Americans’ health and welfare,” the defendant has substantially prevailed in Juliana vs. United States, a federal public trust case. The science here is overwhelming. Yet the 9th Circuit opinion, and the district court opinion it overturns, make only passing reference to climate science; their legal analyses concern the major question doctrine, standing, and due process.

Even so, the roots of the Juliana courts’ analyses reach deep into science, and also economics. It is instructive to contrast Juliana to three other recent natural resource trust cases, where those protecting the resource substantially prevailed:

First, in Kirby Marine, concerning an oil spill in Galveston Bay by the named firm, pursuant to the Oil Pollution Act of 1990, the United States and Texas were named trustees for various natural resources, including dolphins, birds, water, and beaches. The Natural Resource Damage Assessment, completed under the OPA and its implementing regulations, contains a detailed post-mortem and toxicity analysis of dolphin carcasses recovered after the spill. The company entered into a consent decree to pay $15 million.

Second, the state supreme court decision in Pennsylvania Environmental Defense Foundation vs. Commonwealth of Pennsylvania, from July 2021, is grounded in a state constitutional amendment naming the commonwealth as natural resource trustee. Although there is much science on environmental harms of oil and gas production in the decision, the entirety of the dispute concerned the disposition of money from oil and gas leasing on state lands. The court’s decision was guided in substantial part by private trust law.

In both Kirby Marine and Pennsylvania Environmental Defense, by the time the court saw the case, all the complexity and nuance and detail of the natural resource science had been reduced to one variable—dollars. This is reminiscent of federal agency cost-benefit analyses, which too focus on dollars.

Third, in Hawkins vs. Haaland, a 2021 D.C. Circuit opinion, the dispute concerned the U.S. role as trustee for Indians. Here, the metric capturing the resource in dispute was not dollars, but water. The court resolved the case by drawing on Indian and water law.

Dollars, water, and fish are all readily measured. But so too is atmospheric carbon dioxide. Yet in Juliana, the court refused to act to protect the natural resource. Why?

Metrics and standards—key elements of both legal and scientific methodologies—are central and explicitly discussed in the Juliana opinions. The district court, though finding for the plaintiffs, undertook an in-depth analysis of the major question doctrine, including especially what is called the 2nd Baker factor, “a lack of judicially discoverable and manageable standards for resolving” a controversy. Similarly, the Ninth Circuit’s standing analysis references “metrics” and “standards,” and quoting the Supreme Court in Rucho, states that “‘a constitutional directive or legal standards’ must guide the courts’ exercise of equitable power.”

It’s more than just standards. To have a standard, one must standardize. Yet the evidence underlying a typical environmental dispute is messy, idiosyncratic, and not readily comparable to evidence in other cases. How to standardize?

Legal protocols, like scientific protocols, funnel messy data through a process, filtering out a good chunk of the idiosyncrasies, leaving as a residue evidence that is standardized, and more comparable. This greatly simplifies resolving disputes.

In sharp contrast to Juliana, in these three cases the courts found and employed specific legal protocols setting a standard of conduct, which it used to resolve the dispute. In the first case, the protocol is embedded in the Oil Pollution Act’s NRDA and associated regulations and agency practices. In the second case, the protocol consists of the statutes and case law of private trust cases. In the third, the protocol was more diffuse and implicit, being Indian treaties and water law.

Existing legal standards and protocols work decently, if imperfectly, to resolve environmental problems that are small, unwanted economic externalities. Alas, climate change is no ordinary environmental problem. It is a systemic threat to the very society and economic system that created it.

The Juliana courts looked for relevant standards and protocols, and could not find them. They do not exist.

Law and science are both creatures of the larger society in which they are embedded. These natural resource trust cases exhibit a profound and systemic infestation of economic markets into the standards and protocols of both law and science, thereby neutering the very institutions needed to halt climate change.

Law Demands Dollars, Standards, Protocols—and So Too Science

ELI Report

Read more about ELI Report

Author

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

November-December 2020

Issue

Consensus Report Study finds courts are largely in agreement on climate science, but jurists remain reluctant to wade into politics

Climate change is a source of political controversy in the United States, and climate skepticism — or doubts about the basics of climate science — has periodically emerged in public debate. At the same time, U.S. courts in several high-profile cases, such as Juliana v. United States and City of Oakland v. BP p.l.c., while not finding for petitioners, have accepted as authoritative the science behind climate change, including its conclusions that the climate is warming, human activities are driving these changes, and that climate change will have disastrous consequences.

Given the growing number of cases involving climate change, the question remains whether these court decisions are representative of a broader trend in the judiciary or whether they are outliers. With support from the Institute’s Board of Directors, ELI commissioned a report, Climate Science in the Courts: A Review of U.S. and International Judicial Pronouncements, to analyze this question.

Authored by ELI Visiting Attorney Maria L. Banda and published in April, the report examines judicial pronouncements in climate-related proceedings since 2015, including in civil, administrative, constitutional, and criminal law matters, in the United States and in a dozen foreign jurisdictions.

The report finds vast consensus by U.S. and international courts on the causes, extent, urgency, and effects of climate change. Courts have described the science behind climate change as “substantial,” “copious,” and “overwhelming,” and have established a basic causal chain between human activities and current climate risks.

This consensus holds across different types of cases, including nuisance complaints, constitutional claims, and administrative law proceedings. It also holds true across state and federal courts in the United States and internationally.

This finding represents a major shift since early climate lawsuits, where climate skepticism was still relatively common among both judges and litigants. Courts have shifted from doubting climate science to unequivocally accepting the evidence for climate change.

One reason for this shift is the evolving nature of climate science. Federal agencies like the National Aeronautics and Space Administration, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration have generated a vast amount of climate data in recent years to underpin courts’ analyses. Courts in other countries have reviewed much of the same scientific evidence, including reports by the Intergovernmental Panel on Climate Change. In this sense, climate science has acted as a lingua franca across courts.

However, judicial consensus on climate science has not necessarily translated to judicial intervention. U.S. courts have remained generally conservative on climate action, frequently deferring to government agencies to address climate-related issues. This appears to be the case especially when it comes to constitutional or civil claims, which tend to use new legal theories or challenge threshold issues such as standing.

Judicial consensus on climate change plays an important role in shaping public understanding about climate science. Courts are among the most respected public institutions, and are often trusted to separate fact from fiction in a democratic society. Greater understanding of judicial conclusions on climate science could help move public consensus to align with this emerging judicial consensus. Finally, public awareness of how the courts analyze climate data may increase government accountability and galvanize political leaders to act on climate change.

Institute and partner work with Bozeman on water scarcity

With the support of the Turner Foundation, the Alliance for Water Efficiency and the Environmental Law Institute have worked with the City of Bozeman, Montana, to amend a local ordinance in a manner that facilitates water-neutral growth.

The recommendations by ELI and AWE were based on the Net Blue Ordinance Toolkit, a guide written by the two organizations. The Toolkit offers examples of water-offset ordinances from around the country; a Model Ordinance Worksheet that guides users through the development of a water-offset ordinance tailored to their political climate, legal framework, and environmental conditions; and an Offset Methodology Workbook that provides strategies for evaluating and selecting options to offset projected new water demand. Water-neutral growth ordinances can offset additional water demand by either requiring or incentivizing water-efficient retrofits of existing development. These measures can include fixture and appliance replacements, rainwater harvesting, and stormwater capture.

The city of Bozeman served as a Net Blue Partner Community, advising on the development of the Toolkit. The city has experienced rapid growth but is in an area with limited water resources. Capitalizing on the existing partnership between the city, AWE, and ELI, the groups implemented the Net Blue Toolkit there, collaboratively developing revisions to a simple water rights transfer and in-lieu fee ordinances.

Beginning in early 2019, ELI and AWE staff worked with Bozeman city planners and attorneys on various concepts and drafts of both the revised ordinance and its associated manual. The Bozeman City Commission approved the ordinance revisions in August. Revisions to the water manual, which houses the details of the ordinance’s implementation, are still in progress.

As the Toolkit notes, water managers in 40 out of 50 states anticipate water shortages within the coming years. This effort with the city of Bozeman represents a successful application of ELI’s research and analysis in local government policy. The hope is that Net Blue’s adoption in Bozeman will inform other local governments and encourage them to adopt similar ordinances.

Food waste initiative strives to improve community composting

The Nashville Food Waste Initiative, led by the Nashville-based nonprofit Urban Green Lab with support from the Natural Resources Defense Council and the Environmental Law Institute, recently launched a project to develop community composting training and pilot sites in Nashville. Through this project, the Institute for Local Self Reliance, a national leader in community composting, is collaborating with NRDC to bring training and technical support on community composting to Nashville.

In 2015, NRDC launched the Nashville Food Waste Initiative as a pilot project to develop tools, policies, and strategies to prevent food waste, rescue surplus food to those in need, and digest what’s left to build healthy soil. ELI Senior Attorney Linda Breggin served as the project coordinator for several years and continues to support the initiative as senior strategic advisor.

The community composting initiative follows up on a recent NFWI study on community composting, which highlights benefits and opportunities related to re-establishing community composting in Nashville. Community composting is a valuable part of a resilient food scrap recycling infrastructure, offering a relatively cheap and quick way to reach higher diversion potential than practices like backyard composting. It also provides a huge range of environmental and social benefits, such as engaging communities in zero waste practices, increasing demand for and interest in composting, and providing useful skills and job training.

Following the release of this report, the Initiative convened local stakeholders last winter to discuss ways to overcome barriers and identify resources for community composting. Groups expressed interest in managing sites, providing land, and hosting volunteers.

Building off this initial interest, the community composting initiative will lay the groundwork for a robust community composting network, targeting often overlooked and under-resourced communities, and train practitioners and future trainers.

Through the end of 2020, the first phase of this project will focus on identifying and providing technical support to composting demonstration sites and community composting pilot projects. Concurrently, a series of live webinars and online training modules will build interest and skills for community composting within the greater Nashville community.

ELI in Action: States at front lines of transition to renewables

ELI and the American University Washington College of Law Program on Environmental and Energy Law co-sponsored a webinar, State Approaches to a Just Transition, to explore how states protect frontline communities while advancing the transition to a renewable energy economy. The panel featured four experts advancing a just transition in the District of Columbia, Illinois, and New York. Speakers provided lessons learned from climate legislation, including the New York Climate Leadership and Community Protection Act, the Illinois Future Energy Jobs Act, and the District of Columbia’s Clean Energy Omnibus Amendment. The discussion highlighted the implications of these policies in addressing the dual crises of racial injustice and a global pandemic.

❧

Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States. Taught by experts in their fields, the ELI Summer Schoolseminars cover major environmental statutes such as the National Environmental Policy Act, Clean Air Act, and Clean Water Act. The 2020 Summer School series was the second year to host a session on environmental justice, which will become a mainstay portion of Summer School moving forward.

This year’s Summer School was also the first to be held remotely due to COVID-19. On average, each session received about double the number of registrations compared to last year’s sessions. In total, over 3,900 participants registered for the 2020 Summer School series.

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The Trump administration has taken dramatic and sweeping steps to remake federal environmental regulation. A recent ELI report, Environment 2021: What Comes Next? offers a detailed analysis of how these deregulatory initiatives will affect environmental protection in the coming years.

Authored by Senior Attorneys James M. McElfish and Jay Austin, the report helps environmental practitioners, policymakers, and the public understand the scope and significance of recent changes and consider future directions for the regulatory system. The report makes no assumptions about this fall’s electoral results, but explores possibilities for various regulatory reform efforts under different electoral outcomes. The report is available for download on the ELI website.

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As the first part of a webinar series on environmental issues affecting Indigenous peoples, ELI convened a webinar titled Fighting Fire With Fire: Restoring Traditional Indigenous Practices for Ecological Stewardship. The webinar, featuring leaders from the U.S. Forest Service, California Department of Forestry and Fire Protection, and the Karuk Tribe, explores opportunities for tribes to collaborate with state, local, and federal authorities to provide prescribed fires and fire-related services on traditional lands under federal jurisdiction.

The speakers provided an overview of wildfire management at the federal, state, and tribal levels, including current efforts and opportunities for collaborative activities between tribes and governments. In a concluding discussion, speakers noted the importance of recognizing the value of traditional ecological knowledge, understanding a tribe’s history and context, and building relationships when entering collaborative agreements. Intertribal organizations innovating in tribal forest management include the Intertribal Timber Council and the National Indian Carbon Coalition.

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In August, the Institute announced the inaugural class of the Jim Rubin International Fellowship, a program to support rising environmental lawyers from developing countries. The fellowship honors the legacy of Jim Rubin, a highly respected attorney, environmental advocate, and devoted public servant.

This year’s fellows, Ginary Tatiana Gutiérrez Robledo of Colombia and Junhong Li of China, will work with ELI staff on cutting-edge issues of environmental law. Gutiérrez Robledo was most recently an attorney at the Inspector Attorney General Office in Colombia, focusing on government compliance, education, community empowerment, and environmental justice. Junhong Li previously represented local communities in public interest litigation at the Center for Legal Assistance to Pollution Victims at the China University of Political Science and Law.

The Judiciary accepts climate science, ELI study finds.

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