Climate Change Regulation and Litigation: A "Lost Decade" of Controversy and Confrontation

Article excerpt

This article originally appeared in the January 2013 Environment and Energy Law Committee newsletter.

"Whether one believes, as a matter of science, that the problem of climate change is real or imagined, exaggerated or understated, there is no doubt that the storm has already broken--and those legal issues present real risks and real benefits that can only be ignored at our clients' peril." (1)

These words commenced our first article regarding climate change. In it, we foresaw "stormy weather ahead," but we attempted to begin a "constructive dialogue" about the issues raised by global climate change. Today, we can look back over a decade of controversy and confrontation regarding climate change in virtually all legal forums and institutions--and say, without hesitation, that the issue of global climate change has truly experienced a "lost decade."

Whatever one's perspective may be regarding the issue, the controversy remains unresolved in virtually every governmental body where it has been addressed. In regulatory agencies, in the halls of Congress and state legislatures, in state and federal trial and appellate courts, including the US Supreme Court, in international treaty negotiations and in the United Nations itself--the science and regulation of climate change continues to be a controversial--but unresolved--subject.

The Earth's climate is a global public resource. That principle is axiomatic. No single person or nation has a divisible "ownership" interest in the atmosphere, but all people everywhere have an interest in its preservation and resources. Since every greenhouse gas ("GHG") emission cumulatively contributes to the overall impact on the atmosphere, nations and peoples are affected by an incalculable array of factors--only some of which exist as persons who can be regulated and held responsible for contributing to the global warming phenomenon.

Many such persons live in societies that are either incapable--because of economic deprivation--or unwilling--because of adverse economic impacts or political inertia--to reduce emissions in proportion to their respective contributions to the problem. On the other end of the spectrum, even if relatively affluent countries reduce emissions substantially, they will still have to suffer from emissions released by countries that fail, for whatever reason, to match their progress. Thus, the planet remains in "gridlock" regarding climate change--even when it comes to measures needed to adapt to warming temperatures, such as those necessary to assist Pacific islanders increasingly threatened by rising seas.

Finally, nations which are sufficiently prosperous to embrace climate change measures are now afflicted by a prolonged and severe economic recession. Even before the recession began in 2007-2008, many developed countries were concerned that unilateral reductions in greenhouse gases would significantly harm the economies of participating nations--in exchange for uncertain benefits. As the economic crisis deepened, political and economic incentives for unilateral greenhouse gas reductions became even less popular. Even when large emitters such as the United States impose regulations by administrative measures, as opposed to Congressional statutes, the regulations are vigorously opposed--and they are often delayed or diluted substantially.

At such times, it seems appropriate to survey the history of this frustrating controversy, and to comment, however briefly, upon what, if any, resolution can be forecast for the future. Although the limited space available here is not sufficient for an exhaustive review, we will survey selected issues that illustrate the controversy's confrontational history--a history that, despite deep concerns, extraordinary efforts, and tremendous costs, has achieved little, if any, true benefits for the global environment.

Congress appears hopelessly deadlocked on the issue, thereby, leaving it to the Obama Environmental Protection Agency ("EPA") to chart and navigate the course our county will follow. …