Jennifer Hijazi: Climate and the Courts

Climate change has been happening for over a century. But climate law—in the United States, at least—is still relatively new. Its watershed moment was the landmark Supreme Court case Massachusetts v. EPA, wherein several states and environmental groups challenged the Environmental Protection Agency on its refusal to consider greenhouse gases air pollutants under the Clean Air Act. (The EPA at the time, under the George W. Bush administration, was largely in lock-step with that administration’s industry-friendly environmental policies).

In a 5-4 ruling, the court made it clear “without a doubt” that greenhouse gases qualify as pollutants and that the EPA’s refusal to regulate them was indeed illegal. In the years that followed, the EPA instituted limits on greenhouse gas emissions from smokestacks, vehicles, and development activities carried out by oil and gas companies. Climate law subsequently remained largely out of the public eye until 2015. That year, twenty-one young people filed a suit against the federal government in , arguing that the government’s lack of action on emissions infringed upon their constitutional rights. A Ninth Circuit panel ultimately dismissed the case. That case—which will weigh in on whether claims of climate-related damages should be heard in state or federal courts—and many others demonstrate that we’re in a period of experimentation for climate litigation. Challengers are drawing from a complicated mix of law—ranging from public nuisance to consumer protection—to determine which might find the most success in court.