Sep 22, 2021 8:00 AM

Environmental Law Is Getting in the Way of Climate Action

The path forward requires a new understanding of our burning world.

A collage of images including firefighters President Joe Biden and oil in the ocean.

Last Wednesday, Refugio Manuel Jimenez Jr. was called before the Superior Court of San Bernardino County, just over a year after a smoke bomb at his unborn child’s gender reveal party sparked the El Dorado fire that consumed almost 23,000 acres in California. Jimenez and his wife face 30 felony and misdemeanor charges, including involuntary manslaughter in the case of an elite firefighter who died battling the blaze. Together, the charges could add up to three decades in prison.

The district attorney’s decision to prosecute the couple has been covered extensively, as the case has come to represent a conflagration of social ills, including the perils of Instagram gender reveal trends appearing IRL, and the increasing uninhabitability of the western US. But in the face of accelerating climate change and one of the most calamitous summers in memory, the case is a smokescreen obscuring more urgent planetary problems. The Jimenezes “lit the match,” says Mary Wood, director of the University of Oregon’s Environmental and Natural Resources Law Center. “But the biggest question, and the more important one, is ‘Who created the tinder box?’”

The real chain of causation leads to the executives of oil and gas companies like Exxon, Royal Dutch Shell, BP, and Chevron. They have, since at least 1977, knowingly contributed to a precipitous rise in atmospheric carbon, which is trapping enough heat to quickly cook the planet. One particularly catastrophic consequence of that excess heat has been increasing aridity in already dry regions like the American Southwest. This has led to the temporal and geographic expansion of fire season in places like California, which are suffering from more evacuations, property damage, air pollution, and death as a result. The Jimenezes started the El Dorado fire, but fossil fuel companies made the whole world flammable.

Yet all three branches of the US government—executive, legislative, and judicial—have so far failed miserably to save this burning world. A big part of the problem is that American environmental law has so far proven unequipped to deal with the world the fossil fuel companies built. In some cases, environmental law can even stand in the way of climate action. “It is the greatest irony of law,” Wood says, “that it has not figured out how to hold [oil and gas companies] accountable yet.” But Wood and other legal scholars in the burgeoning field of climate law are working on a way to fix that.

In the US, environmental issues have typically been understood as a matter of statutory rights, says Wood. A statutory right comes from a law passed by a state or federal government, and it can be overturned. Fundamental rights, by contrast, are those recognized by the Constitution and its amendments, international agreements like the United Nations Universal Declaration of Human Rights, or created by the due process of law. They are supposed to have more durability—and be guarded on citizens’ behalf by their legal system.

Sometimes, a statutory approach to environmental issues has worked out OK: “1970 was the seminal year for environmental law,” says Michael Gerrard, founder of Columbia University’s Sabin Center for Climate Change Law. The National Environmental Policy Act went into effect, Congress dramatically expanded the Clean Air Act, and President Richard Nixon created the Environmental Protection Agency by executive order. But without the fundamental right to a safe and healthy environment for all people enshrined in law—and fossil fuel companies funding politicians who look the other way—the federal government has struggled to keep up with the pace and scope of destruction in the past 50 years. The 2009 American Clean Energy and Security Act, for example, would have established a cap-and-trade program to force big polluters to curb their greenhouse gas emissions, but after passing the House the bill never even made it to the Senate floor.

The decades-long failure to act shows that many existing environmental laws “are made for very old problems,” Wood says. In Nixon’s day, Americans were concerned with issues like smog, acid rain, and dwindling landfill space. Some of those issues remain, but they “have been utterly eclipsed by the oil and gas industry’s attack on the planetary system,” Wood adds. While 20th-century legislation could, in theory, be amended once again to account for soaring levels of atmospheric carbon, such laws often end up hindering emissions reduction efforts instead.

Take the Clean Air Act: In 2007, the Supreme Court ruled that the EPA could include carbon, methane, and other greenhouse gases in the legislation’s definition of “pollutant,” though it was up to the agency to decide if it would. Just three years later, the same logic resulted in the Supreme Court ruling that people cannot sue corporations for excessive greenhouse gas emissions under federal common law, simply because the EPA has the statutory authority to regulate such emissions. The fact that the EPA wasn’t regulating such emissions didn’t matter—the mere fact that they could have been was enough to stop the suit. While similar lawsuits might still succeed under state regulations, the Supreme Court’s decision closed off, at least temporarily, one more path to action.

Just as the "environment” refers to people, animals, plants, and their surroundings in the here and now, environmental law tends to refer to fairly discrete efforts to manage individual natural resources—a water bill here, a forest statute there. But as “climate” refers to shifts in regional, even global weather patterns, and the consequences over time, the vision for climate law is of a discipline that facilitates bold, swift, and holistic emissions reduction. New tools—for regulating all carbon emissions, for redistributing the wealth of the fossil fuel industry to fund carbon removal, and more—are required to address the existential risk we now face.

If there’s a seminal year in American climate law, it hasn’t happened yet. While the US and others have debated national and international action since at least the early 1990s, it’s a history full of false starts and broken promises. Most recently, the US joined, left, and rejoined the 2016 Paris Agreement, which aims to hold global warming to less than 2 degrees Celsius over preindustrial levels. But the treaty contains no real mechanism for enforcement.

Fortunately, the tide appears to be turning. At least internationally, new laws—with teeth—are being passed. In 2020, for example, Denmark passed a law that demands climate neutrality for the nation by 2050—and, crucially, has a provision to (at least theoretically) force elected officials to step down if they aren’t keeping the country on track. And in May, a court in the Netherlands ordered Royal Dutch Shell to cut its emissions 45 percent, compared to 2019 levels, by 2030, essentially requiring the company to shrink its oil and gas portfolio.

The hope, according to journalist Amy Westervelt, is that with a combination of great strides in attribution science (which helps connect individual extreme weather events to larger climatic trends), investigative journalism definitively showing that the fossil fuel industry knew of the harms of its business practices and worked to hide them, and new legal theory, the US will have some of its own successes soon.

While Wood is a legal scholar, not a practicing attorney, her ideas are at the center of such efforts. Shocked by Hurricane Katrina and its aftermath, Wood developed a new approach called atmospheric trust litigation, which argues that courts should compel governmental agencies to protect and maintain the Earth’s atmosphere for public use now and into the future.

Wood was drawing on an ancient idea called the public trust doctrine, which has its roots in Roman law. It essentially argues that certain resources, including lakes and streams for drinking water and recreation, as well as access to ocean shores, are held “in trust” by the government for the people. “The public trust has never been abandoned. It’s still there,” Wood says. But “environmental law was sort of like invasive ivy—it covered it up.” By unearthing this well-established principle and connecting it to the crisis of climate change, Wood outlined a creative and comprehensible strategy to essentially demand that every nation safeguard Earth’s climate, in its entirety. “The only question is,” Wood says, “will the judges rise up in time?”

In 2015, 21 youth plaintiffs decided to put Wood’s ideas to the test. An Oregon nonprofit called Our Children’s Trust, which represented the youth, filed a lawsuit against the US government on the grounds that it had knowingly violated their clients’ right to life, liberty, and property, as well as the public trust doctrine, by permitting fossil fuel combustion. In the process, they hoped to claim a new fundamental right—the right to a stable climate.

For six years, this case, Juliana v. United States, has been run through the ringer of the American legal system. So far, it has largely been symbolic. “It has had a really important impact in raising the profile of the moral and ethical issues and intergenerational responsibility issues” of climate change, says William Boyd, a professor at the UCLA School of Law and the UCLA Institute of the Environment and Sustainability. It’s also inspired other attempts to hold companies legally accountable: More than 24 climate liability cases are currently moving through the US courts.

A recent order may provide a different opportunity for the Juliana plaintiffs to cement their legacy. In May, a district court judge ordered the Department of Justice to meet with lawyers from Our Children’s Trust for a settlement conference. The youths would reportedly consider federal commitments to reducing greenhouse gas emissions. While Alabama, Texas, and several other states quickly moved to intervene, and independent legal analysts are skeptical of any possibility of a binding agreement, a settlement could be a way for the Biden administration to fulfill its stated commitments to climate action beyond the infrastructure bill. They need it—and so do we.

The Jimenezes, who pleaded not guilty in July, face an uphill battle. While zero fossil fuel executives are in jail, and the companies they run have yet to pay for the damages of climate change, there’s plenty of precedent in the US for fining and jailing people who unintentionally start wildfires. But even if the California couple receive the maximum punishment, it won’t be justice served. Until the courts protect the human right to a stable climate, and oil and gas companies are held accountable for their actions, any other move is misdirection.

There’s a long list of issues still to resolve as we work toward climate recovery, especially in cases where established environmental law and climate action conflict. In California, for example, prescribed burns of forests look like they will be an essential part of wildfire management, making them a priority for many activists. But such efforts may run up against the Clean Air Act, trigger National Environmental Policy Act reviews, and more, Boyd says. These divergent goals will take time to reconcile.

For her part, Wood is already working on what could be another major advance in climate efforts: a mechanism to hold fossil fuel companies accountable for the cost of carbon removal. Drawing on an existing framework that holds oil and gas companies liable for the cost of cleaning up marine oil spills, Wood thinks courts could compel these companies to put their profits into a trust that would clean up the carbon spill in the sky.