The climate crisis is not merely here; it’s spilling into our living rooms, impossible to ignore. Throughout the summer, floodwaters overwhelmed U.S. cities and wildfire smoke blanketed the West. Warming on a global scale is exacerbating natural disasters and fueling unprecedented extreme weather, sending temperatures soaring to nearly 120 degrees in the usually-mild Pacific Northwest. The pace of these trends and the magnitude of the impacts have surprised even climatologists. Without aggressive intervention, things are only going to get worse.
There is plenty of blame to go around for the country’s conscious neglect of climate issues. Fossil fuel companies desperate to satisfy shareholders year after year together pull in trillions of dollars in profit. Regulatory agencies rubber-stamp us closer to the edge of catastrophe, merrily approving new carbon-intensive projects. Congress has rejected meaningful climate legislation more times than a vindictive vending machine spits out a crumpled bill. By one estimate, existing fossil fuel subsidies cost U.S. taxpayers more than $600 billion annually.
The role courts play in making climate change worse is often overlooked, because it is not as dramatic as, for example, Arizona Senator Kyrsten Sinema’s proud opposition to the Green New Deal, or West Virginia Senator Joe Manchin’s mind-bending declaration that the infrastructure bill’s efforts to reduce the use of fossil fuels are “very disturbing.” But when handing out “I Accelerated the Climate Crisis” participation trophies, the Supreme Court and the lower federal courts should not be spared. For decades, the “least dangerous branch” has wielded its considerable power to shield from responsibility the corporate giants that would rather consign the planet to a fiery doom than find a different way to pay for mega-yachts.
The Supreme Court’s enabling of the corporate interests driving climate change predates this particular group of justices. In 2011, a unanimous Court—minus Sotomayor, who was recused after hearing the case below—ruled in American Electric Power Company v. Connecticut that a lawsuit brought by eight states, New York City, and several environmental groups against greenhouse gas-emitting power companies could not go forward. Although the Court finally ruled in 2007 that the Clean Air Act permits the Environmental Protection Agency to regulate greenhouse gases, the EPA had yet to formally do so. Meanwhile, rather than continue to wait around as the air got worse, the states filed a lawsuit alleging that the emissions were a “public nuisance”—at common law, an injury that affects the public at large, not an individual or a discrete group. Since the harms of climate change fall generally—though not necessarily equally—upon society, courts could have used public nuisance law as a sensible, interim alternative in order to hold polluters accountable.
Yet in AEP, the Court ruled that the Clean Air Act displaced public nuisance law and provided a sufficient regulatory regime for greenhouse gases—again, even though those actual regulations did not yet exist. At this point, the Clean Air Act was roughly analogous to an insurance company that sells generous policies but provides no way for anyone to file claims. By preventing states from addressing climate change harms while a regulatory framework was not yet a twinkle in the eye of EPA brass, the practical effect of the AEP ruling was to allow emissions to continue unchecked.
The states’ argument—that the Act shouldn’t trump their common-law claims until the EPA actually exercised its regulatory authority—turned out to be frustratingly prescient. Another year would pass before a court upheld the agency’s decision about which types of greenhouse gases to regulate. Due in large part to repeated legal challenges, the country still lacks comprehensive greenhouse gas emissions regulations for the electric power sector, which accounts for more than a quarter of U.S. greenhouse gas emissions.
The legal system’s inertia is powerful, but perhaps judges are beginning to understand that doing their jobs will be far more difficult when their chambers are underwater.
The glacial pace of litigation also prevents fossil fuel companies from facing consequences for their actions. In 2018, the city of Baltimore filed suit against oil companies in state court, alleging that they had knowingly concealed and publicly disputed the expected impacts of climate change. The companies promptly sought removal of the case to federal court, which they hoped would be a friendlier venue; under AEP, companies would then be able to assert that these claims were preempted by the Clean Air Act and should be dismissed. After a federal district court rejected all eight arguments for removal, the companies appealed this narrow decision about venue all the way to the Supreme Court. But even that didn’t finally resolve the issue; instead, in a 7-1 decision last year, the justices sent the case back down for additional hearings with instructions to use a different test to determine the propriety of removal to federal court.
Today, litigation continues in the Fourth Circuit Court of Appeals. Regardless of how the lower courts ultimately decide this question, the battery of appeals and objections have already succeeded in delaying consideration of oil companies’ legal culpability for climate change for at least three years. And as fossil fuel companies grind the nation’s legal machinery to a halt, climate change is getting worse. Sea levels don’t stop rising just because a case is stayed pending appeal.
When all else fails, courts find excuses to tie their own hands. Last year in Juliana v. United States, the Ninth Circuit Court of Appeals dismissed an ambitious case in which a group of teenage and twenty-something plaintiffs alleged that the government’s failure to curb climate change amounted to, among other things, a violation of the “public trust”—again, another principle of common law. By failing to protect the nation’s natural resources, they claimed, the government infringed on their right to a “climate system capable of sustaining human life.”
In the very first paragraph of its opinion, the court seems to agree with the teens’ broad theory of the case, acknowledging that a “substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change.” Ultimately, though, the judges buckled like an asphalt highway during a hot summer, reverting to an overly rigid, formalistic understanding of what the law allows. In a 2-1 decision, the Ninth Circuit held that the solution plaintiffs sought—an order requiring the government to phase out greenhouse gas emissions—was “beyond” the court’s “constitutional power.” Instead, the court insisted the other branches of government were the proper targets of the “impressive case for redress.” This conclusion all but ignored that the case was only before them precisely because Congress is unwilling and the executive agencies are unable to act.
The conservative legal movement’s relentless campaign to smear as “activism” any decision they don’t like looms large in these debates about the limits of the judiciary’s authority. In Juliana, when the Ninth Circuit acknowledges that the “problem is approaching ‘the point of no return,’” and that failing to act may “spawn life-threatening natural disasters” and “hasten an environmental apocalypse,” it briefly feels as if they are preparing buy the admittedly novel legal theories the plaintiffs placed before them, almost as a matter of necessity. The legal system’s inertia is powerful, but perhaps judges are beginning to understand that doing their jobs will be far more difficult when their chambers are underwater.
At some point, when none of the ostensibly more politically accountable branches are capable of accomplishing anything, courts will have to grapple with how much longer they can insist on passing the buck. Until they are ready to do so, they will bear just as much blame for failing to address the climate crisis as anyone else.