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Is the Law a New Frontier for Climate Action? 

By Angela Pan, Guest Columnist

 

Climate change and our legal system are intertwined. The power of the law in promoting climate solutions or the lack thereof is becoming painfully clear with the recent Supreme Court ruling in West Virginia v. Environmental Protection Agency. This decision limits the EPA's authority to use the Clean Air Act to curb power plant emissions, which are major contributors to climate change. Many have argued that the Supreme Court's ruling creates a major hurdle for the United States to comply with its goals set by the Paris climate accord, which promised a 50 to 52 percent reduction in emission by 2030.

What is the complex and interdependent relationship between climate solutions and the legal system? On the one hand, the climate crisis is reshaping the legal world, ranging from regulations to the practice of law. On the other hand, legal institutions are increasingly being used as a tool to confront the climate crisis. As explained by Georgetown law professor Edith Brown Weiss in Establishing Norms in a Kaleidoscopic World, climate change is emblematic of a “kaleidoscopic world”, a complex and rapidly changing world with multilayered challenges and opportunities. Confronting the climate crisis requires “agile, adaptable legal frameworks that can straddle different levels of governance and engage all the actors—state and non-state—who contribute to or are affected by climate change.

Climate Change is Reshaping Legal Practices and Institutions

Aside from Supreme Court rulings and even beyond the major natural resource and environmental statues (e.g., NEPA, Clean Air  Act, Clean Water Act), climate change is reshaping the practice of law and legal institutions. The American Bar Association adopted a resolution on climate change in 2019, urging lawyers to take on climate-related pro bono work and recognize the risks and opportunities of climate change within and beyond the legal world.

The legal world is adapting to the changing landscape, taking climate information into account in transactions, litigating, compliances, and legal standards. The causes and impacts of climate change touch every sector of the economy, from infrastructure, energy, and real estate, creating physical and transitional risks and opportunities. The physical risks from climate change costs around $ 2 trillion/year for the United States, according to the U.S. Office of Management and Budget. The increased physical risks from climate change have a cascading effect on businesses, beginning with damages to property, disruption to supply chains, and increased operating costs. Take financial disclosure as an example. With the rise of corporate responsibility and environmental, social, and governance (ESG) investment, the European Union released a Corporate Sustainability Reporting Directive (CSRD) in 2021, requiring all large companies to adopt enhanced sustainability reporting and disclose climate-related information. Similarly, in 2022, The U.S. Securities and Exchange Commission (SEC) proposed regulations mandating firms to disclose climate-related risks, specifically making disclosing greenhouse gas emission a legal requirement. The use of climate-related information in the financial disclosure is an evolving space, but nonetheless a clear example of how climate is reshaping the law beyond environmental statutes.

Law is Facilitating Climate Solutions

Legal institutions also play an indispensable role in facilitating climate solutions, ranging from mitigating the worst climate impacts to facilitating climate adaption. In particular, enforcing laws is an important mechanism to provide accountability and spur transformative climate actions. As noted by Inger Andersen, Executive Director of the UN Environment Programme, “There is a big difference between passing a law and implementing it. We need a root and branch analysis and strengthening of laws relevant to all sectors.”

At an international level, the Paris Agreement with Nationally Determined Contributions (NDC) provides a legal framework of pledges to encourage regular updating and adoption of domestic laws and policies to reduce carbon emissions. At national and subnational levels, law can shape important climate decisions, such as adopting state-level standards (e.g., renewable portfolio standards), town planning/zoning (e.g. zoning laws and building standards), and regulating pollution.

Climate litigation is becoming a more and more prevalent and powerful tool. Globally, climate litigation has more than doubled since 2015 (see graph below), according to the Grantham Research Institute on Climate Change.  And climate litigation efforts are shifting towards “strategic” cases where the aim is to bring about broader societal change. However, one should note that not all climate litigation is pushing for climate change actions. A 2021 study by the Grantham Research Institute shows that out of 369 climate-related cases, 58 percent were favorable, and 32 percent were unfavorable.

Source: Higham & Setzer, 2021

Three general trends of legal actions have emerged as pathways for climate action:

First, there are rights-based climate accountability cases against governments. Rights-based litigation primarily focuses on state obligations to protect citizens against climate change, according to recent research from the London School of Economics and Political Science. There are currently over 100 climate litigation cases based on human rights argument advocating for climate actions. A notable example is the seven-year legal battle in the Netherlands where the judges ruled in favor of the argument that climate change is a significant threat to human rights. Hence, the Netherland government needs to accelerate its climate action to meet its pledge of 25 percent reduction of carbon emission, resulting in a 75% reduction in capacity at the country’s three coal-fired power station.

Second, there are growing direct and indirect climate litigation efforts against private actors and corporations. These cases have focused on high-impact industries, particularly the energy sector, drawing a direct link between carbon emission and a specific climate impact. An example would be ClientEarth v. Polska in Poland, where ClientEarth contends the power plants have direct negative climate impacts on the surrounding soil and water. Aside from high-emitting projects, there are a growing number of cases that frame climate change as a systemic financial risk, which means funding coal power plants is an indefensible financial risk for shareholders.

Third, there are litigation efforts targeting greenwashing cases. Greenwashing refers to cases when companies mislead the public on how “green” or “sustainable” they are and the extent of their responses to the climate crisis. An example of green washing legal case is BP’s ‘Possibilities Everywhere’ ad campaigns, which led the public to believe that BP is committed to a low carbon future, while 96% of BP’s annual spending is on fossil fuel based energy (oil and gas). This led to a legal complaint in the UK by ClientEarth that the ad violated international guidelines governing corporate conduct. The nonprofit and advocacy efforts to push BP to end its “corporate reputation advertising”.

Another interesting avenue of legal litigation for climate is being explored by youth activists, such as the actions by Our Children's Trust. These efforts focus on using the law to grapple with the costs of climate change, not just for future harm but also for present harm to mental health. Facing the projection of an unlivable planet, young people are increasingly experiencing climate anxiety. Recent studies (and a new book Generation Dread: Finding Purpose in an Age of Climate Crisis) show that eco-anxiety about climate change is becoming a chronic stressor, disproportionally affecting psychosocial health and wellbeing of young people, and possibly exacerbating pre-existing mental health problems. A 10th grader and climate activist, Mia Chamberlain, described her climate anxiety as “it was like sitting through a horror movie that you really don’t want to be watching.” In court, climate youth activists argue that climate inaction is causing psychological harm to them, and calling for the government to step up its climate actions.

Climate change and the law are two cross-sectoral issues that are closely intertwined. The climate crisis is creating risks and opportunities in every corner of our society as well as reshaping the legal practice. And legal institutions are becoming powerful tools to create climate accountability. Climate litigation is becoming a promising avenue for citizens to engage in climate action, making the courts and judges a crucial actor in addressing the climate crisis. Climate actions through climate litigation is also a key lever that compels governments and corporations to pursue and implement more ambitious climate goals to create a more livable future for us all.

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