Environmental law

Federal environmental laws such as the Clean Air Acts, although formulated before the modern scientific study of climate change, have become the chief vehicle for attempting to reduce GHG emissions. Several states have passed climate change initiatives, as has the international community in the Kyoto Protocol.

Background

For most of human history, the environment was to all intents and purposes unprotected by law. In Anglo-American law, the near-absolute dominion that was accorded to owners of property put little restraint on the right to consume, exhaust, or pollute resources at will. A nuisance lawsuit could be pursued if a neighbor deprived a property owner of the ability to enjoy such essentials as light, air, and water. The public trust doctrine restrained landowners from monopolizing access to navigable waters. Other than these impediments, American law left the environment open to even the most rapacious use. The preservationist movement of John Muir and Gifford Pinchot focused on conserving public lands and parks; it had little effect on private uses of land.

Environmental Law

This situation changed in the United States with the introduction of environmental laws in the twentieth century. The first environmental laws were an extension of nuisance laws and health and safety laws: protecting against environmental threats to the safety of the population, rather than the environment itself. But by the 1970s, laws to protect the environment had found broad acceptance in American political and popular culture. The National Environmental Policy Act of 1970 (NEPA) established federal guidelines for protecting the environment. In the same year, Congress established the Environmental Protection Agency (EPA) as the federal authority to oversee enforcement of the environmental laws, and the Clean Air Act Extension to control air pollution.

The Clean Water Act was enacted in 1972 to protect the purity and drinkability of water and to preserve wetlands. The Energy Policy and Conservation Act of 1975, as amended by the Alternative Fuels Act of 1988, mandated automobile fuel economy standards and encouraged the development of alternative fuels in vehicle use. The Comprehensive Environmental Response Compensation and Liability Act of 1980 provided a superfund program to clean up hazardous wastes.

Global Climate Change and the Law

In 2009, the United States contemplated legislation aimed directly at global warming; previously, legal controversies over global warming focused on the extension of existing environmental laws to greenhouse gases (GHGs). For example, the landmark case of Massachusetts v. EPA (2007) concerned the question of whether motor vehicular emissions of GHGs are air pollutants and thus subject to regulation under the Clean Air Acts (1963–90). A major barrier in all environmental law litigation is the question of legal standing—who is permitted to bring a lawsuit on behalf of the environment. Normally a plaintiff must show a concrete and immediate harm.

In Massachusetts v. EPA, the US Supreme Court allowed a coalition of environmental groups and state attorney generals to bring the lawsuit. After hearing evidence from both sides, the Court required the EPA to determine if carbon dioxide (CO₂) emissions satisfy the definitions of an air pollutant under the Clean Air Acts and are thus subject to EPA regulation. Likewise, in Border Power Plant Working Group v. Department of Energy (2003), the federal government was required to consider power plant CO₂ emissions in regulating the construction of power lines and grids. The administration of George W. Bush, however, did not believe administrative action was required as to climate change. The 2008 election of President Barack Obama signaled a change in executive enforcement. On April 17, 2009, the EPA announced that it had determined that CO₂ and other gas emissions were indeed dangers to public health and welfare and thus subject to its mandate.

In 2015, Obama announced the Clean Power Plan, which would set limitations on carbon dioxide emissions from power plants as part of the Clean Air Act. The plan established state-by-state targets for emission reductions and was expected to reduce electricity sector emissions by approximately 32 percent by 2030. A Supreme Court injunction in 2016 stayed its implementation, however. Then, in September 2017, the administration of President Donald Trump repealed the Clean Power Plan, arguing that its restrictions on emissions represented federal overreach. This argument was further supported when the US Supreme Court decided the case of West Virginia v. Environmental Protection Agency (EPA) in mid-2022. In the 6 to 3 ruling, the conservative majority struck down the Clean Power Plan, citing that in enacting the plan, the EPA was "asserting highly consequential power beyond what Congress could reasonably be understood to have granted." Specifically, the Court limited the EPA's authority in lowering greenhouse gas emissions at existing power plants; however, the decision did not take away the EPA's ability to set new emissions-reduction standards in the future, as long as they adhered to the regulations set forth by the Court. Moreover, other parts of the Clean Air Act remained intact following the ruling, including the EPA's ability to regulate greenhouse gas emissions at new power plants.

Another notable environmental law case pertaining to climate change was filed in 2015 by a lawyer with the nonprofit Our Children's Trust. The organization filed a federal lawsuit, called Juliana v. United States, on behalf of a group of youth advocates against the Obama administration that demanded the government take stronger action to address climate change and repeal policies that promoted the use of fossil fuels. The twenty-one plaintiffs, who were all under the age of eighteen when the suit was filed, argued that the government's inaction would cause significant challenges that they would be forced to deal with during their lifetimes. In 2020, however, a federal appeals court threw out the case, arguing that climate change as an issue did not belong in the courts.

Many environmental laws and initiatives were passed during Joe Biden's years as president. Biden reversed many of Trump's actions regarding climate change and focused on the reduction of greenhouse gas emissions. He pledged that the United States would reduce these emissions to net zero by 2050. Biden's Infrastructure Investment and Jobs Act contained new programs to reduce global warming and mitigate the effects of climate change. It also included the largest federal climate change investment in US history. By 2022, the Biden administration had created fifty-four new environmental policies.

Several US states took legislative action on climate change before Congress. California in particular passed legislation to restrict GHG emissions. As specific carbon emission legislation is passed by the states, there may be less reliance on older, more general environmental laws to address global warming concerns. The Regional Greenhouse Gas Initiative is a joint cap-and-trade program of ten northeastern states to reduce CO₂ emissions from power plants while pursuing clean energy programs. Globally, the 1992 United Nations Framework Convention on Climate Change launched the international effort to reduce carbon emissions. It found legal force in the Kyoto Protocol of 1997 establishing binding targets for reducing GHGs. However, upon taking office in 2001, President Bush renounced American participation in the protocol.

Context

Environmental legislation enacted since the 1970s has provided some basis for regulation and litigation concerning CO₂ emissions that many believe contribute to global warming. Environmentalists have made use of such historic legislation as the Clean Air Acts to try to compel the EPA to include reductions of GHGs under its regulatory mandate, a step resisted by the Bush and Trump administrations but revisited by the Obama and Biden administrations. States, particularly in the northeast and California, have been more aggressive in enacting frameworks designed to reduce CO₂ emissions in a cap-and-trade system.

Given the exclusive authority that the federal government retains over national environmental questions and interstate commerce, it is hard to know how effective state legislation can be. The industrialized nations have been active in enacting frameworks, initiatives, and treaties addressing climate change, but, given the nature of international competition and national sovereignty, the future of such essentially voluntary restrictions is uncertain. One of the largest questions facing Congress is how to integrate federal policy with both state and international initiatives.

Key Concepts

• cap-and-trade agreements: transaction-based agreements that make the right to emit greenhouse gases or other pollutants a fungible commodity
• greenhouse effect: increased warming of the Earth caused by absorption of heat energy by gases in the atmosphere
• greenhouse gases (GHGs): gaseous constituents of the atmosphere, such as carbon dioxide, that contribute to the greenhouse effect
• legal standing: eligibility to bring a civil lawsuit in a specific case, usually as a result of suffering damages
• litigation: disputes in court between parties regarding the meaning and execution of laws

Bibliography

Aspatore Book Staff, eds. The Legal Impact of Climate Change: Leading Lawyers on Preparing for New Environmental Legislation, Assessing Green Programs for Clients, and Working with Government Agencies on Climate Change Issues. Boston: Thomson West, 2008.

Cheever, Federico and Celia I. Campbell-Mohn. "Environmental Law." Britannica, 23 Oct. 2024, www.britannica.com/topic/environmental-law. Accessed 10 Dec. 2024.

Gerrard, Michael, ed. Global Climate Change and U.S. Law. Chicago: American Bar Association, 2008.

Kushner, James. Global Climate Change and the Road to Extinction: The Legal and Planning Response. Durham, N.C.: Carolina Academic Press, 2009.

Salzman, James, and Barton Thompson. Environmental Law and Policy. 2d ed. New York: Foundation Press, 2007.

Schwartz, John. "Court Quashes Youth Climate Change Case Against Government." The New York Times, 17 Jan. 2020, www.nytimes.com/2020/01/17/climate/juliana-climate-case.html. Accessed 10 Dec. 2024.

Shenkman, Ethan G. et al. "What Next after West Virginia v. EPA?" Bloomberg Law, 1 Aug. 2022, news.bloomberglaw.com/us-law-week/whats-next-after-west-virginia-v-epa. Accessed 10 Dec. 2024.

"What Is the Clean Power Plan?" National Resources Defense Council, 29 Sept. 2017, www.nrdc.org/stories/how-clean-power-plan-works-and-why-it-matters. Accessed 10 Dec. 2024.