Democracy Defense as Climate Change Law

• Date: 01 February 2020

2-2020 ENVIRONMENTAL LAW REPORTER 50 ELR 10115

DEMOCRACY DEFENSE AS

CLIMATE CHANGE LAW

by Craig Holt Segall

Craig Holt Segall is an attorney for the state of California, and previously worked

for an environmental nonprof‌it organization.

In 1990, when the Clean Air Act (CAA)1 was last sub-

stantially amended, atmospheric carbon dioxide lev-

els stood at about 350 parts per million (ppm). Now

they are close to 414 ppm,2 and the U.S. Congress has

not amended the CAA despite broad public support for

action.3 Cli mate lawyers should ask whether something has

gone wrong with our democracy. Why can’t Congress act?

e law of democracy and the law of climate change a re

fundamentally intert wined: how politics and law will be

able to adjust to the future turns on who decides the law,

and so on the health of our democracy. So far, the prognosis

is mixed: a vital protest movement, active state responses,

and growing economic pressure for action are balanced

against powerful political actors seeking sta sis and a scle-

rotic jurisprudence that limits democratic responsiveness.

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. See Rebecca Lindsey, Climate Change: Atmospheric Carbon Dioxide, C.

, Sept. 19, 2019, https://www.climate.gov/news-features/understanding-

climate/climate-change-atmospheric-carbon-dioxide.

3. On public attitudes on climate change, I have drawn heavily on the Yale

Program on Climate Change Communication, which has developed com-

prehensive survey data. For the proposition that the public is overwhelm-

ingly concerned with climate change and favors substantial action, see,

e.g., A L  ., Y P  C C

C, C C   A M: A 2019

(2019). e Resources for the Future think-tank conrms this core con-

clusion, while recognizing that support is softer for more radical interven-

tions. See R   F, P B A  C

C  W C C  M U (2018). Both

groups’ work (as well as a quick look at the news) will conrm another

premise of this Comment—that the modern Republican party in the Unit-

ed States and its members are vastly less supportive of climate action (and,

indeed, less unwilling to “believe” basic climate science) than members

of the Democratic party or of the majority of the American public as a

whole. See, e.g., A L  ., Y P  C

C C, P  G W 4-6 (2019) (For

instance: 70% of voters believe climate change is happening, but only 38%

of conservative Republicans agree; 67% of voters but only 46% of Repub-

licans support carbon pricing. Notably, even many Republicans support

technology investments in renewables and the like).

Tipping the balance toward action requires climate

advocates to consider which theories of popular democracy

and judicial review best support responsive government.

Durable climate solutions will require deep attention to

equity and must attend to many varied interests. A s the

Nobel laureate Elinor Ostrom, a specialist in the econom-

ics of cooperation, observed, the climate crisis is inher-

ently “polycentric”—it emerges from choices at all levels

of government and society, and so must be addressed by

choices at all levels.4 Law yers should insist that government

at every level is responsive.

ere is little hope of equity in a climate-altered future

unless the law recognizes that solutions to the crisis must

win majority support while protecting minority rights.

Climate law cannot just be the technocratic law of emis-

sions reduction and infrastructu re adaptation. e most

important mitigation actions we take may be t hose that

mitigate trends toward oligarchy in a democracy under

threat; our most important adaptations may be act ions to

support egalitarian ism in the face of worsening inequalities

of wealth and power.5

is Comment moves in several steps. First, I briey

discuss the ways inequities in cl imate change risk and in

democratic representation mirror each other. Next, I turn

to the U.S. Supreme Court’s inconsistent and unhelpful

jurisprudence on democracy and agency action and how

it tends to reinforce this crisis of democracy. I then sug-

gest alternate theories of judicial action that would better

reinforce democratic responsiveness, providing examples

from cases on the dormant Commerce Clause (DCC) a nd

agency deference. I close with reections on a broadened

conceptual framework for climate law— as a legal frame-

work fundamentally concerned with preser ving equity and

democracy in the face of climate change, and as a founda-

tion for climate action.

4. Elinor Ostrom, A Polycentric Approach for Coping With Climate Change, 15

A E.  F. 92 (2014).

5. ese ideas are elaborated in J W  G M, C

L: A P T  O P F (2018). As

they put it:

Surely if “adaptation” means “correction” or “adjustment,” then the

most important adaptation that the world could make to address

climate change would be to redistribute wealth and power to end

fossil fuel use and force those responsible for climate change to real-

locate the wealth its drivers have helped them accumulate at the

cost of billions of people suering.

Id. at 73.

Author’s Note: Craig Holt Segall represented Sierra Club

and currently represents or supervises attorneys for the

California Air Resources Board in many of the air quality

and climate cases discussed in this Article. However, this

Article ref‌lects Segall’s personal views, not those of his past

or present employers. He welcomes correspondence at

csegall@gmail.com.

Copyright © 2020 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.