Environmental and Natural Resources Law

   HOME

   ENR PROGRAM

   ENR LL.M. PROGRAM

   PROJECTS

   CLIMATE CHANGE
    INITIATIVE

   INDIAN LAW

   BOWERMAN CENTER

   FACULTY

   ALUMNI

   GIVING TO ENR

   NEWS

.....

LAW & POLICY

CLIMATE CHANGE INITIATIVE

"[W]e have at most ten years- not ten years to decide upon action, but ten years to alter fundamentally the trajectory of global greenhouse emissions." James Hansen- "The Threat To The Planet"

Law and Policy

The United States Congress - to date - has failed to enact any law which explicitly seeks to prevent, alter, or mitigate global climate change. Despite the absence of any comprehensive federal regulatory mechanism for addressing climate change, states and private actors are suing public and private entities under existing legal theories or provisions. Additionally, local and state governments, through regional and individual initiatives are adopting programs which seek to require or encourage efforts to combat climate change.

However, the climate crisis presents a historic challenge for legislatures - a challenge made difficult because government failed to act in a precautionary way in response to scientific warnings issued years ago. Society now faces a more abrupt transition to meet the two-fold mandate and any measures designed to meet the two-fold mandate require legislation. In evaluating climate change policy, public officials must have their eyes firmly on the quantitative reduction goals. Progressive approaches to policy making are dangerous, as "near compliance" with Nature's mandate is not enough.

Litigation

Statutory Law

In Massachusetts v. EPA, the United States Supreme Court held that the Clean Air Act gives the Environmental Protection Agency (EPA) authority to regulate carbon dioxide and other greenhouse gases produced by motor vehicles. Although it does not require the government to regulate greenhouse gases, the decision instructs the EPA to reconsider its refusal to regulate emissions, encourages the EPA to pay attention to the scientific evidence, and requires the agency to provide better reasons than its current "laundry list" of excuses if the EPA exercises its discretion not to regulate emissions upon reconsideration.

http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf

The Court and Climate Change: A win for Oregon as well as the law, Hari Osofsky, Opinions Editorial, The Oregonian, Portland, Oregon (April, 2007).

Public Trust Doctrine

Common law provides that state legislatures hold natural assets in trust for their citizens. The trust includes air, waters, and other natural assets necessary for human welfare and survival. The beneficiaries of this trust are all generations of citizens. Arguably under this theory, Legislators may not abdicate their responsibility to manage the trust for the benefit of future citizens. As trustees, they hold the duty to defend the trust against injury and restore damaged assets. States, for example, have protected their air trust by bringing nuisance lawsuits against polluters and by passing legislation. The atmosphere encompassing the Earth is an asset held by all sovereign nations and states as co-tenant trustees. Each co-trustee has the duty not to waste the commonly held asset.

Weinhold, Bob, "Lawyers Get Creative for Climate Change," Society of Environmental Journalists, http://www.sej.org/pub/index1.htm (May 28, 2008).

"Government's Atmospheric Trust Responsibility," Journal of Environmental Law and Litigation, Issue 22:2 (December 2007).

"Nature's Trust: A Legal, Political and Moral Frame for Global Warming," 34:3 Boston College Environmental Affairs Law Review (May 2007).

"Nature's Trust: Reclaiming an Environmental Discourse," 25:2 Virginia L. J. (May 2007).

Nuisance

The state of California has brought a nuisance suit against major auto manufacturers for their contribution to global warming. See http://ag.ca.gov (complaint) (See, e.g., Georgia v. Tennessee Copper Company, 206 U.S. 230, 238 (1907)("This is a [nuisance] suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its. . . inhabitants shall breathe pure air. . . . It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale . . . by the act of persons beyond its control . . . .")).

Regional Initiatives

New England Governors and Eastern Canadian Premiers

Powering the Plains

Regional Greenhouse Gas Initiative

Southwest Climate Change Initiative, AZ press release

New Mexico Press Release

West Coast Governors' Global Warming Initiative

Western Governors' Association

State Initiatives

Pew Center on Global Climate Change, Climate Change 101: State Action

California
A.B. 32: California Global Warming Solutions Act of 2006
S.B. 1771: California Climate Action Registry of 2000
S.B. 527: 2001

Minnesota
Out-of-State Carbon Sequestration, H.F. 3852, 84 Leg., 2006

New Hampshire
S.B. 159: An Act to Provide Leadership in Addressing the Threat of Climate Change, 1999

New Jersey
S.B. 2351: Vehicle Emissions Standards, 2003

Oregon
S.B. 375: Energy Efficiency Bill, 2007

Washington
H.B. 1397: Vehicle Emission Standards, 2005

Wisconsin
N.R. 438: Mandatory Greenhouse Gas Reporting, 2005
S.B. 287: Voluntary Greenhouse Gas Registry, 1999

Local Initiatives

Pew Center on Global Climate Change, Climate Change 101: Local Action

International Initiatives

A New Climate Treaty: US Leadership After Kyoto (written by Eileen Claussen and Elliot Diringer)

United Nations Framework Convention on Climate Change (UNFCCC)

Kyoto Protocol

European Union Greenhouse Gas Emission Trading Scheme