Climate Creep

Date01 May 2022
AuthorCinnamon P. Carlarne
52 ELR 10374 ENVIRONMENTAL LAW REPORTER 5-2022
CLIMATE CREEP
by Cinnamon P. Carlarne
Cinnamon P. Carlarne is Associate Dean for Faculty and Intellectual Life and Alumni Society
Designated Professor of Law, Moritz College of Law, The Ohio State University.
Creep is the imperceptibly slow, steady, downward move-
ment of slope-forming soil or rock. Movement is caused
by shear stress suc ient to produce permanent deforma-
tion, but too small to produce shear fa ilure.
— U.S. Geological Sur vey1
I. (Climate) Change Is Coming
In the early days, the eect s were not cataclysmic. ey
were too subtle and too uncertain to motivate decisive
action. But just as gravity and time slowly pull soil down
the slopes, our understanding of the eects of climate
change has steadily crept up on us. By now, we know that
climate change is ongoing and unavoidable—that climate
change is not just coming, but is here and is reshaping our
world before our eyes.2 Despite the punctuated moments
we experience as storms and res and water sca rcity,3 cli-
mate change is changing the planetary circumstances in
slow and incremental ways—imperceptible shifts in aver-
age temperatures, droughts, desertication, sea-level rise,
ocean acidication, ecosy stem migration, biodiversity loss,
and land and forest degradation.4
At this point in time, climate cha nge pervades every
aspect of contemporary life. It is a persistent current
through our lives and, incre asingly, throughout t he law. By
now, one would be hard-pressed to nd any area of law that
has not or will not soon be touched by climate change.5
1. U.S. G S, L T  P (2004) (Fact
Sheet 2004-3072), https://pubs.usgs.gov/fs/2004/3072/pdf/fs2004-3072.
pdf.
2. See, e.g., H-O. P  ., I P  C-
 C, C C 2022: I, A,  V-
: S  P 7-8 (2022), https://report.ipcc.
ch/ar6wg2/pdf/IPCC_AR6_WGII_SummaryForPolicymakers.pdf [herein-
after S  P].
3. See Sophie Marjanac & Lindene Patton, Extreme Weather Event Attribu-
tion Science and Climate Change Litigation: An Essential Step in the Causal
Chain?, 36 J. E  N. R. L. 265 (2018).
4. United Nations Climate Change, Slow Onset Events, https://unfccc.int/
wim-excom/areas-of-work/slow-onset-events (last visited Mar. 20, 2022);
Human Rights Council, e Slow Onset Eects of Climate Change and
Human Rights Protection for Cross-Border Migrants, U.N. Doc. A/
HRC/37/CRP.4 (Mar. 22, 2018).
5. We are all climate lawyers now, or soon will be. See, e.g., Lisa Benjamin &
Sara Seck, e Escalating Risks of Climate Litigation for Corporations, A.B.A.
ST L., Fall 2021, at 10, 14.
e onset of climate change has prompted decades worth
of deep and wide eorts to reshape law and policy. Amidst
the torrid uxes and ows of presidential climate politics,6
climate-responsive laws and policies have amassed . Some of
these changes have been bold and obvious—the Clean Air
Act (CA A) 7 greenhouse gas regu latory regime, the polar
bear listing,8 and the Juliana litigation.9 Howeve r, many—
if not most—of these changes have been more subtle and
less visible.
From federal legisl ation,10 judicial 11 and executive
actions,12 to the plethora of actions at the subnational level,
every branch and just about every corner of our government
has responded in some way to climate change. Moreover,
in recent years, the pace of legal development has intensi-
ed and diversied as pressure has grown from swelling
social movement s,13 progressive politicians, and the private
sector.14 Indeed, what we are witnessing is that the creep of
governmental action on climate change, like the creep of
climate change itself, is accelerating.
Yet, alongside this development, there is also erosion.
Erosion by political forces is expected; the Donald Trump
Administration demonstrated this in dramatic fashion.15
What is more surprising, in 2022, is t he potential role
6. See Cinnamon Carlarne, U.S. Climate Change Law: A Decade of Flux and
an Uncertain Future, 69 A. U. L. R. 387, 402-39 (2019) [hereinafter
U.S. Climate Change Law: A Decade of Flux]; Cinnamon Carlarne, Notes
From a Climate Change Pressure-Cooker: Sub-Federal Attempts at Transforma-
tion Meet National Resistance in the USA, 40 C. L. R. 1351, 1354-64
(2008) [hereinafter Notes From a Climate Change Pressure-Cooker].
7. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
8. See, e.g., Center for Biological Diversity, Petition to List the Polar Bear (Ur-
sus Maritimus) as a reatened Species Under the Endangered Species Act
ii (Feb. 16, 2005), https://www.biologicaldiversity.org/species/mammals/
polar_bear/pdfs/15976_7338.pdf [http://perma.cc/8UYE-8PHB].
9. See Juliana v. United States, 217 F. Supp. 3d 1224, 1262-63 (D. Or. 2015);
947 F.3d 1159, 50 ELR 20025 (9th Cir. 2020).
10. See, e.g., Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135
Stat. 429 (2021).
11. See, e.g., Massachusetts v. Environmental Prot. Agency, 549 U.S. 497, 37
ELR 20075 (2007) (holding that carbon dioxide and greenhouse gases are
air pollutants under the CAA and can be regulated by the U.S. Environmen-
tal Protection Agency (EPA)).
12. See, e.g., Press Release, e White House, Executive Order on Tack-
ling the Climate Crisis at Home and Abroad (Jan. 27, 2021), https://
www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/
executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/.
13. See Cinnamon P. Carlarne, Climate Courage: Remaking Environmental Law,
41 S. E’ L.J. ___ (forthcoming 2022).
14. See, e.g., Michael P. Vandenbergh et al., e Gap-Filling Role of Private En-
vironmental Governance, 38 V. E’ L.J. 1 (2020); Jonathan M. Gilligan
& Michael P. Vandenbergh, A Framework for Assessing the Impact of Private
Climate Governance, 60 E R.  S. S. 101400 (2020).
15. See, e.g., U.S. Climate Change Law: A Decade of Flux, supra note 6, at
130-47.
Author’s Note: Many thanks to Prof. Keith Hirokawa for
his thoughtful read and for helping me distill the thrust of
the argument.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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