Environmental Law Is Getting in the Way of Climate Action

Decades of inactivity show that many existing environmental laws “are made for very old problems,” says Wood. In Nixon’s day, Americans were grappling with issues like smog, acid rain, and dwindling landfill. Some of these problems remain, but they “have been completely dwarfed by the oil and gas industry attack on the planetary system,” Wood adds. While twentieth-century legislation could theoretically be amended again to take account of the increasing levels of atmospheric carbon, such laws instead often hamper efforts to reduce emissions.

Take the Clean Air Act: in 2007, the Supreme Court ruled that the EPA could include carbon, methane and other greenhouse gases in the law’s definition of a “pollutant,” although it was up to the agency to decide whether it would. Just three years later, the same logic led the Supreme Court to rule that federal common law doesn’t allow people to sue companies for excessive greenhouse gas emissions just because the EPA has legal authority to regulate such emissions. The fact that the EPA didn’t regulate such emissions didn’t matter – the mere fact that they could have been enough to stop the suit. While similar lawsuits could still be successful under state regulations, the Supreme Court decision blocked, at least temporarily, further avenue to action.

Just as “environment” in the here and now refers to people, animals, plants and their environment, environmental law refers to rather discrete efforts to manage individual natural resources – a water bill here, a forest law there “climate” refers to Changes in regional, even global weather patterns and their consequences over time, the vision for climate law is a discipline that enables bold, rapid and holistic emission reductions – the redistribution of the wealth of the fossil fuel industry to finance carbon elimination and more – are required in order to cope with the existential risk we are now facing.

If there is one Year of American climate law, it hasn’t happened yet. While the US and others have been debating national and international action since at least the early 1990s, this is a story of false starts and broken promises. Most recently, the US joined, exited, and rejoined the 2016 Paris Agreement, which aims to keep global warming less than 2 degrees Celsius above pre-industrial levels. But there is no real enforcement mechanism in the treaty.

Fortunately, the tide seems to be turning. At least internationally, new laws are being passed – with teeth. In 2020, for example, Denmark passed a law calling for climate neutrality for the country by 2050 – and most importantly, a provision that (at least in theory) will force elected officials to resign if they fail to keep the country on course. And in May, a court in the Netherlands ordered Royal Dutch Shell to reduce its emissions by 45 percent compared to 2019 by 2030, essentially forcing the company to shrink its oil and gas portfolio.

The hope, according to journalist Amy Westervelt, is that with a combination of major advances in attribution science (which is helping to link single extreme weather events to major climate trends), investigative journalism will definitely show that the fossil fuel industry is hurting its business knew practices and worked to hide them, and new legal theories will soon see the US have some of its own successes.

Wood may be a legal scholar rather than a practicing attorney, but her ideas are at the heart of that endeavor. Shocked by Hurricane Katrina and its aftermath, Wood developed a new approach called Atmospheric Trust Disputes, which argues that courts should force government agencies to protect and preserve the Earth’s atmosphere for public use now and in the future.