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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future
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Summary: This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto. At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff has standing to sue and whether the claim being made presents a political question. Both barriers have forced courts to apply amorphous standards in a new and complex context. Efforts to mitigate climate change—that is, reduce greenhouse gas (GHG) emissions—have spawned a host of legal issues. The Supreme Court resolved a big one in 2007: the Clean Air Act (CAA), it said, authorizes EPA to regulate GHG emissions. EPA’s subsequent efforts to carry out that authority have been sustained by the D.C. Circuit. Another issue is whether EPA’s “endangerment finding” for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions from other sources, and, if EPA does, whether the CAA authorizes cap- and-trade programs. Still other mitigation issues are (1) the role of the Endangered Species Act in addressing climate change; (2) how climate change must be considered under the National Environmental Policy Act; (3) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions to control GHG emissions; and (5) whether the public trust doctrine applies to the atmosphere. Liability for harms allegedly caused by climate change has raised another crop of legal issues. The Supreme Court decision that the CAA bars federal judges from imposing their own limits on GHG emissions from power plants has led observers to ask: Can plaintiffs alleging climate change harms still seek monetary damages, and are state law claims still allowed? The two rulings so far say no to the former, but split on the latter. Questions of insurance policy coverage are also likely to be litigated. Finally, the applicability of international law principles to climate change has yet to be resolved.Water shortages thought to be induced by climate change likely will lead to litigation over the nature of water rights. Shortages have already prompted several lawsuits over whether cutbacks in water delivered from federal projects effect Fifth Amendment takings or breaches of contract. Sea level rise and extreme precipitation linked to climate change raise questions as to (1) the effect of sea level rise on the beachfront owner’s property line; (2) whether public beach access easements migrate with the landward movement of beaches; (3) design and operation of federal levees; and (4) government failure to take preventive measures against climate change harms. Other adaptation responses to climate change raising legal issues, often property rights related, are beach armoring (seawalls, bulkheads, etc.), beach renourishment, and “retreat” measures. Retreat measures seek to move existing development away from areas likely to be affected by floods and sea level rise, and to discourage new development there.
Natural disasters to which climate change contributes may prompt questions as to whether response actions taken in an emergency are subject to relaxed requirements and, similarly, as to the rebuilding of structures destroyed by such disasters just as they were before. Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.
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Reform forest fire management: Agency incentives undermine policy effectiveness
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Globally, wildfire size, severity, and frequency have been increasing, as have related fatalities and taxpayer- funded firefighting costs (1). In most accessible forests, wildfire response prioritizes suppression because fires are easier and cheaper to contain when small (2). In the United States, for example, 98% of wildfires are suppressed before reaching 120 ha in size (3). But the 2% of wildfires that escape containment often burn under extreme weather conditions in fuel-loaded forests and account for 97% of fire-fighting costs and total area burned (3). Changing climate and decades of fuel accumulation make efforts to suppress every fire dangerous, expensive, and ill advised (4).
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Defenders of Wildlife
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Defenders works on the ground, in the courts, and on Capitol Hill to protect and restore imperiled wildlife across North America and around the world. Together, we can ensure a future for the wildlife and wild places we all love.
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Guide: Making Equity Real in Climate Adaptation and Community Resilience Policies and Programs
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A Guidebook from the Greenlining Insitute, a nonprofit founded in 1993, that works to create a nation where communities of color thrive and race
is never a barrier to economic opportunity.
To prioritize the climate adaptation and community resilience needs of frontline communities and address the historical neglect they have experienced, we must move beyond embracing equity to making it real. This requires centering community needs and building social equity into the very fabric of policies and grant programs that focus on climate adaptation and resilience. To get there, this Guidebook offers policymakers a blueprint on how to operationalize equity in policies and grant programs
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