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