Climate Science and Energy Policy Heading in Opposite Directions

VJEL Staff Editor: Rachael Bruketta
Faculty Member: Pat Parenteau

The latest research is clear: To avoid the worst climate impacts, global greenhouse gas (GHG) emissions must drop by half by 2030, then reach net-zero by 2050. In 2019, the United States’ energy-related carbon dioxide emissions totaled 5,131 million metric tons, and the petroleum sector made up 46% of total emissions. NASA warns this continued reliance on fossil fuels increases atmospheric carbon dioxide, leading to drought and reduced crop yields, deadly heat waves, catastrophic wildfires, more powerful hurricanes, and accelerating sea level rise and coastal flooding.

As the nation responsible for most of the GHGs in the atmosphere, and for contributing the highest emissions per capita every year, the U.S. has an obligation and an opportunity to lead the adoption of clean energy and other technologies the world needs. Yet for over five decades, U.S. policy has promoted and subsidized fossil fuels that lead to half of the nation’s carbon emissions. Initially, tax subsidies to the fossil fuel industry were intended to offset costs for domestic consumers. But circumstances have changed: today, the U.S. is a net exporter sending oil to 190 countries and leads the world in crude oil consumption and production.

Nonetheless, the fossil fuel industry continues raking in annual subsidies estimated at $20 billion of taxpayer money, 80% of which goes to oil and natural gas companies. Eliminating subsidies would modestly impact domestic and global oil production, consumption, and prices. Yet the federal government recently increased subsidies for fossil fuel extraction on public lands and slashed funding for renewables and energy efficiency programs.

In 2018, the six super majors BP, Shell, Chevron, Total, Eni, and Exxon spent billions of their combined budgets on clean energy projects. These investments made up only 1% of the companies’ combined budgets, and a mere 5% of the subsidies the companies received from the government. Taxpayers’ dollars could be better spent. Meanwhile, we are speeding towards a climate cliff and we need to stop and turn around.

Aligning Federal Policies and Climate Protection

The U.S. government can reduce climate damage by eliminating the $20 billion annual subsidies for fossil fuels. Instead, the government could invest in the nation’s vulnerable existing infrastructure systems and build new infrastructure for water storage, treatment, and purification, transportation, national security, and update the electric grid to integrate renewables.

In 2016, the American Society of Civil Engineers (ASCE) estimated a $1.4 trillion deficit to maintain, rebuild, and develop the nation’s transportation infrastructure from 2016 to 2025. The deficit will likely increase to $5 trillion by 2040. Infrastructure investments are expensive, but so is damage from climate change. For example, sea level rise and storm surge impacts roads, buildings, ports, and coastal military installations. Heavy downpours impact rail lines, airport runways, and public water systems. Since 1980, the U.S. has experienced 279 weather and climate disasters, each exceeding $1 billion in losses, and totaling over $1.8 trillion in losses. 16 of these events occurred within the first ten months of 2020. Without modifications to the nation’s infrastructure, such as coastal roads, bridges, pipelines, public water systems, and a modernized electric grid, climate change increasingly threatens public health, millions of jobs, and national security.

The technologies needed for modernization are available, cost-effective, and ready to scale up. For example, solar and wind are the cheapest, cleanest, and fastest growing sources of electricity. Instead of subsidizing dinosaur sources of energy, the government should subsidize batteries and other energy storage technologies and upgrade the national electricity grid to deliver clean power to every corner of the country.

Furthermore, while the electric vehicle market moves in the right direction, investments are needed to support a fully electrified transportation system. The list of opportunities to invest in upgraded infrastructure systems to achieve a net-zero carbon economy and a more robust financial economy goes on. Redirecting federal subsidies away from fossil fuels and toward renewables, public water systems, transportation, and national security is a good start.

The Quest for a Constitutional Right to a Livable Planet

Climate justice and planetary habitability are complementary, and courts in other countries have rendered dramatic judgments in favor of environmental plaintiffs. For example, the Dutch Supreme Court in the Urgenda case ruled that the government violated the plaintiffs’ rights to life and family, guaranteed by the European Convention on Human Rights, by not reducing GHG emissions. In a landmark judgment, the Court ordered the government to reduce GHG emissions by 25% by 2020. In the Leghari case, the Lahore High Court of Pakistan recognized the right to life and human dignity protected by the Constitution of Pakistan and ordered the government to adopt a climate adaptation plan and appoint a team of minsters to implement it under supervision of the court. In a case brought by a group of 25 children, Colombia’s Supreme Court issued a landmark ruling calling on the Government to halt Amazon deforestation.

By contrast, U.S. courts have yet to find an implied right to a habitable planet in the U.S. Constitution. The U.S. Declaration of Independence secures unalienable rights of “life, liberty, and the pursuit of happiness.” However, none of these inalienable rights will mean much in a world of runaway climate change with disastrous floods, fires, storms, drought, heat waves, food shortages, and collapsing ecosystems becoming the new normal.

In Juliana v. United States, represented by Our Children’s Trust (OCT), youth plaintiffs alleged the federal government’s stubborn adherence to promoting fossil fuels, despite the clear and present danger of climate change, violates their fundamental rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, and the Public Trust Doctrine. In 2016, Federal Judge Anne Aiken issued a blockbuster opinion concluding: “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” The case was supposed to go to trial in 2017, but the Department of Justice blocked the trial by convincing a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit to dismiss the case on the ground that the plaintiffs lacked standing. The court acknowledged the dire threat that climate poses, the failure of the federal government to address it, and the need for more urgent action, but in a split decision the panel ruled that the courts were powerless to award the sweeping relief the plaintiffs sought: “We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large”

In a stirring dissent, Judge Staton observed: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.” Judge Staton argued that the plaintiffs had made a colorable constitutional claim and presented sufficient evidence to warrant a trial, after which, the court could consider various remedies. Even if the remedies were not everything plaintiffs wanted, they are better than doing nothing as the nation faces grave danger exacerbated by dereliction from the other branches of government.

Although the lawyers representing OCT requested rehearing before the full Ninth Circuit, it seems unlikely the Court will grant it and reverse the panel. If the case made its way to the U.S. Supreme Court, given the 6-3 conservative majority, it may be unlikely to garner five votes in favor of recognizing a constitutional right to a “safe climate.”

Making Polluters Pay

A recent wave of litigation aims to hold major oil companies liable for climate change damage under state statutes and common law. These lawsuits do not seek emission controls but seek compensation for past, present, and future damages attributable to defendants’ deceitful marketing to promote their products. As of October 2020, there were 17 lawsuits filed by states, cities, and counties against the oil companies. Claims are based on state tort theories including nuisance, trespass, negligence, and failure to warn. More recently, cases were filed by Minnesota, Connecticut, and the District of Columbia, seeking to enforce consumer protection laws. The cases seek orders compelling companies like Exxon Mobil to correct false advertising, pay penalties, and disgorge corporate profits.

The cases were filed in state court. The oil companies immediately sought to remove the cases to federal court but have so far been unsuccessful. For example, in the City of Baltimore case, the Fourth Circuit ruled that there was no “federal officer” involved in the case and remanded the case to state court. However, on October 2, 2020, the U.S. Supreme Court granted BP’s petition for writ of certiorari to review the remand. The question presented is quite narrow: whether the Fourth Circuit erred by limiting its review to the federal officer question and not considering other grounds for removal.

If the U.S. Supreme Court rules in favor of the oil companies, the case will be remanded to the Fourth Circuit to consider other grounds for removal. If the Supreme Court upholds the circuit court decision, this case and similar cases will proceed in state court. The Supreme Court’s decision will not resolve the bigger question of whether there is a state law basis to hold the companies liable for climate damage. But the Supreme Court oral argument could provide insights on how the Justices view the question.

What to Expect in 2021

The future of climate action presents the U.S. with two options: lead climate mitigation and adaptation or squander the last best chance to avoid a bleak future. The world is watching.