AN ALTERNATIVE APPROACH TO CLIMATE CHANGE LITIGATION: FUNDAMENTAL CLIMATE RIGHTS & DECENTRALIZED RENEWABLE PROGRAMS.

AuthorKalhofer, Matthew J.
  1. Introduction

    It is imperative, now more than ever, that undivided attention be placed on those capable of effectuating change. (1) One organization capable of effectuating such change is the International Panel on Climate Change ("IPCC"), established by the United Nations ("UN") in 1988 and delegated with the authority of generating and facilitating scientific assessments on climate change. (2) The global response to this scientific research led to the implementation of international agreements such as the Montreal Protocol, the Kyoto Protocol, and the Paris Agreement. (3) Largely due to the ineffectiveness of these international agreements, studies have shown a necessity to inquire into the relationship between domestic policies, and the historical failure to achieve an equitable transition to viable renewable resources. (4) Ultimately, this initiative will require employing various components that have been successfully applied in other domestic and foreign jurisdictions, in order to facilitate an imminent transition away from fossil fuels and towards more responsible energy generation. (5)

    Increasing political pressure on domestic governmental bodies will create a window of opportunity for more active steps towards informed policy decisions regarding the implementation of renewable energy. (6) Part II of this note will outline the history of various international responses to climate change, and discuss the legal theories used by climate activists in both foreign and domestic litigation. (7) Part III will address ongoing climate change litigation in the United States, how the litigants have configured their legal claims, and the alternative options towards effectuating redress. (8) Part IV will argue that a domestic, localized approach towards implementing decentralized renewable generation will serve as the preliminary infrastructure for the renewable grid. (9) Pursuant to the climate findings discussed in Part II, and the litigation tactics described in Part III, the asserted injuries premised on an unenumerated right to a sustainable environment should be tailored around a feasible transition to net metering and other decentralized renewable generation mechanisms as the appropriate means for redress. (10)

  2. History

    1. The International Forum & Guidance of the IPCC

      The recognition and scientific discoveries related to climate change date back several decades prior to the implementation of the IPCC. (11) The UN bolstered this effort by providing an international forum for legitimate, informed, and transparent scientists to guide the international community in accomplishing the goals of the climate change movement. (12) The primary responsibility of the IPCC has been to clarify and correct the 'technical and scientific' findings surrounding climate change, and to take the necessary steps to ameliorate issues on a global scale. (13) The IPCC recognizes the legitimacy of most issues causing climate change, and has even established corresponding levels of confidence to signify the certainty of their findings. (14) These discoveries serve as the pillars of international agreements, including the Montreal Protocol, Kyoto Protocol, and Paris Agreement. (15) Although these agreements have well-suited intentions, non-compliance by many developed nations raise questions as to the effectiveness of these agreements. (16)

      1. The Montreal Protocol

        The Montreal Protocol on Substances That Deplete the Ozone Layer was prompted by the findings of the IPCC and studies from various academics such as Sherwood Rowland and Mario Molina. (17) These scholars suggested that chlorofluorocarbons ("CFC's") emitted into the atmosphere would destroy the ozone. (18) Three years prior to the academia published by Rowland and Molina, "it had been suggested that a 1% ozone loss would cause an additional 7000 cases of skin cancer each year." (19) The cost of "a mere $21 billion" to the United States to comply with this agreement, contrasted against a sharp increase in skin cancer rates, was a motivating factor contributing to the success of this initiative. (20)

        The idea that the Montreal Protocol presented a "prisoners dilemma" in regards to eradicating CFC's should not be overlooked without discussing the United States motivation in pioneering international compliance, which effectively maximized their investment for complying with the agreement. (21) As articulated by Cass Sunstein, Professor at The University of Chicago Law School, international agreements can present "a prisoner's dilemma in which all or most nations will do badly if each acts in its individual self-interest, but gain a great deal if all are able to enter into a binding agreement." (22) However, the motivating factor of profit maximization, in addition to altruistic concerns, was absent in the implementation of the Kyoto Protocol. (23)

      2. The Kyoto Protocol

        While the Montreal Protocol sought to regulate the reduction of ozone depleting substances such as hydrochlorofluorocarbon ("HCFC'S") and chlorofluorocarbons ("CFC'S"), this inherently required the replacement of HCFC'S and CFC'S with hydrofluorocarbons ("HFC'S"). While HFC'S are not ozone depleting pollutants, they are an extremely similar to GHG's, precisely what the Kyoto Protocol attempted to combat--although not technically classified as a GHG. (24) Therefore, both the Montreal and Kyoto Protocols present issues in achieving compliance--unfortunately, these obstacles proceeded further procedural hardships. (25) Scientists and scholars have articulated that the Montreal and Kyoto Protocols must provide a cooperative approach to "effectively regulate the global atmosphere." (26)

        The Kyoto Protocol sought to reduce GHG's by implementing a regime where signatory nations would implement unenforceable pledges, varying in adequacy and efficacy between the signatory nations. (27) Only 36 of 196 world countries, responsible for less than 40 percent of world carbon emission, were subject to these pledges-roughly 130 other nations including the United States, China and India, categorically outside of Annex I, were not subject to this agreement. (28) The abstention from the Kyoto protocol by the very developed nations who served as signatories to the Montreal Protocol can be readily explained by the "domestic cost-benefit analysis." (29) Notwithstanding the ineffectiveness of these agreements, compliance boils down to a simple equation--if nations continue to emphasize short term economic growth, such growth will likely be to the detriment of environmental protection initiatives. (30)

      3. The Paris Agreement

        The aforementioned international agreements have been defined as top-down approaches requiring both international acquiescence combined with domestic ratification--conversely, the 2015 Paris Agreement signified a bottom-up approach towards mobilizing international agreements. (31) Seeing that signatories of the Paris Agreement are not tied to an inflexible international initiative, these nations felt more comfortable with an unenforceable domestic regime imposing these pledges, as opposed to an international regime which would provide additional supervision. (32) The bottom-up initiatives lack some of the procedural barriers of the top-down approach, i.e., ratification at both the international and domestic level; therefore, a bottom-up initiative is likely to avoid significant resistance from the United States Senate. (33) Either way, both the top-down and bottom-up approaches will likely be ineffective in spurring the governmental conduct necessary to effectuate climate justice--although, the science underlying these agreements serves an imperative role in influencing the current state of climate litigation. (34)

    2. Discussing Relevant Foreign & Domestic Case Law

      An additional variable necessary in the climate justice equation is the presence of legal action by the general public in large industrialized nations. (35) Climate activists argue that legal action will serve as a mechanism that leaves domestic legislatures no other option but to follow domestically determined case law requiring affirmative governmental action. (36) Domestic and foreign courts have reviewed many climate litigation theories such as negligence claims, human rights actions, and constitutional claims--some of which will be unsuccessful in the United States, while others may remain actionable. (37)

      1. Tort/Negligence Theories

        The first legal theory addressed has been the use of tort claims brought against domestic governmental bodies for their failure to satisfy the standard of care in reducing emissions contributing to climate change. (38) In Urgenda v. The Kingdom of Netherlands, the District Court of Hauge held that the Netherlands was "acting negligently towards society in the context of hazardous climate change" because the government had not done enough to reduce carbon emissions. (39) Notably, applying traditional negligence principals, the District Court of Hauge also concluded that the efforts of the Kingdom of Netherlands were insufficient to fulfill its obligation to exercise reasonable care. (40)

        Alternatively, in American Electric Power v. Connecticut, common law nuisance claims were brought against electric power companies, as opposed to the domestic governmental body, seeking an order to require these companies to reduce fossil fuel emissions. (41) The Supreme Court "held that the Clean Air Act, when coupled with the EPA's discretionary authority recognized in Massachusetts v. EPA," transfers authority to regulate pollutants to the Executive Branch, and remains outside the purview of the courts in light of the doctrine of displacement. (42) Because Congress intended to preempt federal common law claims by giving regulatory authority to the EPA to regulate air pollutants, the plaintiffs common law claim was displaced by the Executive Branch's preemptive authority to regulate air pollutants. (43) The case was ultimately...

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