life after warming

What If the Courts Could Save the Climate?

Protesters attend a rally outside the U.S. Supreme Court held by the group Our Children’s Trust October 29, 2018 in Washington, DC. The group rallied in support of the Juliana v. U.S. lawsuit brought on behalf of 21 youth plaintiffs that argues the U.S. government has violated constitutional rights for more than 50 years by contributing to climate change.
Protesters attend a rally outside the Supreme Court held by Our Children’s Trust on October 29, 2018. The group rallied in support of the Juliana v. U.S. lawsuit brought on behalf of 21 youth plaintiffs that argues the federal government has violated constitutional rights for more than 50 years by contributing to climate change. Photo: Win McNamee/Getty Images

It has not been a good couple months for the climate — but then, when was? In October, the U.N.’s IPCC released its doomsday report; last week came the American equivalent, the National Climate Assessment, which basically endorsed those findings. One horrifying new study found that, by 2100, if warming continues unabated, parts of the world could be pummeled by as many as six climate-driven natural disasters at once — heat waves, flooding, drought, crop failures, among others. In the U.S., new EPA boss Andrew Wheeler has proved much more effective than his hack predecessor at rolling back environmental regulations — making the Executive branch, once Obama’s tool for climate action, an even more powerful force for corporate interests and deregulation. And while the House is now set to pass into the hands of the more climate-conscious party, on the same Election Day the Senate got redder and more resistant to climate legislation, and voters in liberal states from Washington to Colorado delivered blows to state-level efforts at climate regulation. That leaves, by process of elimination, one branch of government. So … could the courts save the planet?

It may not be as far-fetched as it seems. In the U.S., courts have not been consistent progressive forces, to say the least. But they have often seized the moral mantle dropped by indifferent executives and legislatures — in Brown v. Board, Obergefell v. Hodges — and courts elsewhere are already embracing the role. Last month, at the Hague, in a decision not much noticed in the U.S., an appellate court upheld a radical judgment that would actually force the Dutch government to much more dramatically cut down on their emissions than it was planning to. In other words, a lawsuit brought by a small group of citizens single-handedly changed the climate policy of their country — essentially binding the state to honor not just what are often referred to as the “nonbinding” commitments of the Paris accords, but to go even further, committing it to enact climate policies that reflected its own (quite dire) assessments of the scale of the climate threat.

This is, of course, just one court in just one country, but it is an absolutely extraordinary feat. And it opens up a whole new avenue for climate action — to make those nonbinding agreements real rather than rhetorical, and to force nations to push through not just the climate-denialism peculiar to the U.S. but the resistance of domestic oil companies and other carbon-dependent corporate interests elsewhere, as well as the seeming reluctance of individual citizens and consumers everywhere in the world. How significant would that be? On the one hand, very. No major industrialized country is on track to meet the emissions-reductions pledges it made in Paris. This is, at the moment, a very big problem; lawsuits like this one could, theoretically, eliminate it.

On the other hand, even if each of the 196 countries that signed on to the Paris accords were to honor those commitments down to the subclause, it would only limit global warming, according to our best models, to between 3.2 and 3.4 degrees. That recent IPCC report declared, more or less, that just two degrees would bring unconscionable climate catastrophe. Paris lands us more than a degree north of that — as much warmer than that two-degree-catastrophe threshold as that threshold is from where we are today. And that is only if those models bear out — there are some very serious scientists who believe, given the nature of the climate system, just hitting two degrees would unleash feedback loops that would bring us very quickly to four or five degrees of warming.

The effectiveness of climate policy is also an open question. The IPCC report announced that a global, World War II–style mobilization was required to stop warming short of two degrees; presumably, policy of that ambition and scale, involving federal direction or nationalization of industry and something like broad conscription into a war on climate change, would reliably bring down our emissions. But what about the tools we are already using? There are many places in the world with working carbon taxes; none of their emissions are declining. There are even more places in the world with climate-focused environmental policies in place, and yet, as the economist Lyman Stone put it on Twitter recently, “There’s basically no correlation between strictness of environmental policy and change in CO2 emissions.”

That is farther than I would go, personally. But it is still remarkable that the Paris accords’ notorious fugitive, the United States, has had the most impressive years of emissions reductions of any country in the world since they were signed in 2016 — and had the best 2017, which it accomplished under Trump and his war on regulations. (Market forces are, indeed, really powerful, and green energy is really cheap in the U.S. now.) As Trump has pulled the U.S. from global climate leadership, a lot of praise has been heaped on Xi Jinping and China for taking a much more aggressive rhetorical stance on climate, but in 2017 China’s emissions grew the most of any nation in the world. Europe’s acclaimed green-energy leader, Germany, is not just insufficiently cutting emissions — it’s growing them.

But a lawsuit proceeding through the U.S. courts gives hope even in this deeply dispiriting context. That lawsuit is the much-mooted Juliana v. United States, often called “Kids vs. Climate,” because the plaintiffs are all minors, and because their claim is that the federal government has violated the equal-protection clause by choosing to expose them to climate suffering rather than take action during the lifetime of their parents.

It is, of course, very unlikely that this argument would get a sympathetic hearing at the Supreme Court, especially one with Brett Kavanaugh sitting on it. But in a surprising decision earlier this month, that same Supreme Court declined the federal government’s request to throw the lawsuit out, allowing it to proceed to trial in district court in Oregon (by the way, a quite liberal district). Presumably, at least: There’s no trial date set yet, and the government will likely continue to push to dismiss it.

Juliana has been much-lauded as a moral crusade — plaintiffs between ages 11 and 22, fighting to make their government take their own future on the planet seriously. But I don’t think most people, even most who follow climate issues quite closely, understand just how radical the claim the lawsuit makes really is — and just how radical a transformation of the country it would require, should the claim be upheld.

To me, a legal amateur, the equal-protection argument is a persuasive one — if innovative and therefore more or less untested as a litigation strategy. But what would it actually mean for the U.S. government to accept its terms, and commit itself to extending equal protection, when it comes to climate damages, to future generations?

The standard would be, essentially, impossible to meet — because American policy only governs about 14 percent of global emissions, because previous generations suffered essentially no climate damages, and because just the one degree the world has already warmed promises to inflict an enormous amount of suffering on those teenagers bringing the lawsuit (and their children, and their grandchildren). In other words, if Donald Trump, compelled by the Supreme Court, were even able to act by global fiat and immediately halt all global emissions, the Juliana kids would still suffer more — considerably more — from climate change than their parents and grandparents.

Where does that leave things, legally? What would a good-faith effort to extend equal protection to climate change look like? It is not entirely clear, but even a squishy, more modest mandate like “action on emissions with all reasonable urgency” would produce enormously dramatic action, far larger and more far-reaching than the court-mandated desegregation efforts that came out of Brown: say, for starters, the end of oil subsidies and massive investment in green energy that would dwarf the (very significant) ones made as part of the stimulus during the Obama years; far more stringent emissions standards for cars, perhaps even a hard, short-term deadline beyond which only hybrid or electric cars could be produced; an entirely new airplane fleet, required by federal law; a total overhaul of the energy grid and national infrastructure more generally; a command-and-control-style remaking of our agriculture. It might even reboot our trade policy, since we now buy so many carbon-intensive products from elsewhere in the world we are essentially outsourcing emissions to China.

If that all sounds like a lot — well, it is. It also happens to be about the bare minimum we need to do to save the planet from rolling climate chaos. Globally, we have to cut emissions in half in 12 years, remember. Instead, they are still growing. If the world’s presidents and prime ministers and parliaments and legislatures can’t see that math, maybe its courts will. In the meantime, God bless the Dutch.

What If the Courts Could Save the Climate?