Environmental Law: A Vital Mechanism to Address the Climate Crisis

By: Eliana Aemro Selassie

Edited by: Regan Cornelius and Eleanor Bergstein

Climate change has been a growing issue of concern among governments and citizens alike in the last few years. As the climate crisis worsens, environmental law has become increasingly important to implement effective environmental legislation and address the crisis. Environmental law focuses specifically on managing natural resources, preventing the degradation of the environment, and regulating pollution and emissions through policies and legislation focused on managing air and water quality, protecting endangered species, limiting pollution, and addressing the impacts of environmental disasters, at both the national and international levels. [1] The implementation of environmental law is increasingly important to mitigate the deterioration of the environment past irreversible levels, but this poses several challenges given the number of stakeholders involved and the complexities associated with national and international climate policy.

Environmental law has evolved significantly over the last 50 years in the United States. The rise of major environmental disasters and declining air, land, and water resources across the nation in the 1960s increased public concern about environmental issues. The evolution of environmental law was largely funneled by the creation of the Environmental Protection Agency (EPA), established in 1970 under the Nixon administration. [2] Today, the EPA has the power to set air and water quality standards, conduct research on environmental hazards, and ensure environmental legislation is implemented to maintain environmental resources and stewardship. [3] 

However, the EPA’s powers have been recently thwarted through the 2022 Supreme Court case West Virginia vs EPA, which restricts the EPA’s ability to limit carbon emissions, arguing that it is the jurisdiction of Congress, rather than the EPA, to do so. The ruling stated that the EPA would be overreaching if it were to create emission caps on generation shifting, the process of shifting from fossil fuels to renewable energy sources. [4] The decision was based on the recent “major questions doctrine” framework, which states that it is the responsibility of government agencies like the EPA to enact “the will of Congress” and elected officials, rather than to decide on those matters themselves. [5] As a result of the doctrine, the Supreme Court argued determining emission caps specifically for fossil fuel corporations would be an infringement of the EPA’s abilities as an agency.

However, limiting the EPA’s ability to enact carbon emission caps in the current state of the climate crisis poses major threats to the capacity of the United States to meet its carbon emissions targets. In Justice Elena Kagan’s dissent, she emphasized that restricting the EPA’s power is particularly harmful, stating that “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.” [4] Kagan’s dissent highlights how restricting the jurisdiction of agencies like the EPA that are responsible for creating environmental policies poses risks to the likelihood that these policies will be enacted to mitigate the effects of the climate crisis. 

Similarly, at the international level, environmental law has become particularly precarious and difficult to enact. International environmental law and policy focuses on geopolitical agreements to mitigate climate change, protect wildlife, and manage ozone depletion. [6] In the past, environmental law was primarily focused on settling disputes over shared environmental resources like bodies of water. Today, it is predominantly focused on sustainable development, ensuring that resources are effectively managed today for future use. [7] Despite improvements to global climate policy, it remains mostly ineffective, since it requires the coordination and consideration of hundreds of nations, their leaders, the concerns of the public, and the interests of energy and fuel corporations. Coordinating this many stakeholders and considering their interests, particularly when diverging views arise, has proven to be challenging.

One of the few examples of effective international climate legislation is the Montreal Protocol, a multilateral agreement that placed international restrictions on the production and use of ozone-depleting substances, helping to resolve the hole in the ozone layer. Implemented in 1987, the protocol is one of the very few agreements to “achieve universal ratification.” [8] Today, the ozone layer is on track to fully recover as a result of the Montreal Protocol. [9]  This is a rare example of how effective environmental legislation can be at the global level, especially when a universal consensus is reached. Going forward, environmental legislation would benefit from taking a similar approach, considering a major environmental issue and proposing solutions that target and consider stakeholders of all levels. 

However, this is unlikely given the growing inefficacy of climate agreements. The 28th annual Conference of Parties Climate Summit, COP 28, was held in Dubai from November 30 to December 12, 2023, and raised concerns among environmentalists about the growing inefficacy of world leaders in addressing the issue of climate change. [10] The goals of the conference are to speed up the rate of the energy transition, increase the inclusivity of environmental policy, and take action concerning climate finance. [11] However, from ambiguous wording on climate goals to a lack of representation of the world’s largest emitters, the conference resulted in inefficient outcomes. President Biden and President Xi Jinping both chose not to attend the climate summit, sparking concerns that the United States and China will continue to delay agreeing to environmental legislation. Criticism of the two countries is especially high given that they are the world’s largest emitters, yet the burden of climate change typically falls onto poorer nations who are among the smallest emitters. [12] This further illustrates that environmental policy requires a complex framework, one that will hold large emitters responsible while also considering the implications of climate change on a global scale. 

The future of the climate crisis remains uncertain, given the continued failures of governments and international organizations to address the crisis. Environmental law is particularly complex and requires a multifaceted approach, one that considers how it will impact people on a myriad of levels. Going forward, the government of the United States needs to address its failure to reduce emissions and expand the authority of agencies like the EPA to hold fossil fuel corporations accountable for their large emissions. At the global level, world leaders must consider that the impacts of large carbon emissions will continue to be detrimental to the environment, to the point where climate change and its impacts become irreversible.

Notes:

1. “What is Environmental Law - and Why Does it Matter | American Public University.” American Public University, https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-environmental-law/. Accessed 8 December 2023.

2. “The Origins of EPA | US EPA.” Environmental Protection Agency, 5 June 2023, https://www.epa.gov/history/origins-epa. Accessed 8 December 2023.

3. “Our Mission and What We Do | US EPA.” Environmental Protection Agency, 23 May 2023, https://www.epa.gov/aboutepa/our-mission-and-what-we-do. Accessed 8 December 2023.

4. "West Virginia v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2021/20-1530. Accessed 8 Dec. 2023.

5. Clifford, Catherine. “The Supreme Court limited the power of the EPA — so what happens now?” CNBC, 1 July 2022, https://www.cnbc.com/2022/07/01/the-supreme-court-limited-the-power-of-the-epa-so-what-happens-now.html. Accessed 8 December 2023.

6. Hunter, David. “GW Law Library: Library Guides: International Environmental Law: Getting Started.” Library, 21 November 2023, https://law.gwu.libguides.com/IEL. Accessed 8 December 2023.

7. Hunter, David. “International Environmental Law.” American Bar Association, 5 January 2021, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol--19---issue-1/international-environmental-law/. Accessed 8 December 2023.

8. “About Montreal Protocol.” UNEP, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol. Accessed 8 December 2023.

9. “Ozone layer recovery is on track, helping avoid global warming by 0.5°C.” UNEP, 9 January 2023, https://www.unep.org/news-and-stories/press-release/ozone-layer-recovery-track-helping-avoid-global-warming-05degc. Accessed 8 December 2023.

10. Horton, Helena, and Matthew Taylor. “Cop28: president says summit 'has already made history' as negotiations enter final days – as it happened.” The Guardian, 8 December 2023, https://www.theguardian.com/environment/live/2023/dec/08/cop-28-climate-environment-fossil-fuel-latest-news-updates-live. Accessed 8 December 2023.

11. “Event: 2023 UN Climate Change Conference (UNFCCC COP 28) | SDG Knowledge Hub | IISD.” SDG Knowledge Hub, 2023, https://sdg.iisd.org/events/2023-un-climate-change-conference-unfccc-cop-28/. Accessed 8 December 2023.

12. Joselow, Maxine. “Biden to skip world leaders' summit at COP28 climate talks in Dubai.” Washington Post, 26 November 2023, https://www.washingtonpost.com/climate-environment/2023/11/26/biden-cop28-climate-summit-dubai/. Accessed 8 December 2023.

Bibliography:

“About Montreal Protocol.” UNEP, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol. Accessed 8 December 2023.

Clifford, Catherine. “The Supreme Court limited the power of the EPA — so what happens now?” CNBC, 1 July 2022, https://www.cnbc.com/2022/07/01/the-supreme-court-limited-the-power-of-the-epa-so-what-happens-now.html. Accessed 8 December 2023.

“Event: 2023 UN Climate Change Conference (UNFCCC COP 28) | SDG Knowledge Hub | IISD.” SDG Knowledge Hub, 2023, https://sdg.iisd.org/events/2023-un-climate-change-conference-unfccc-cop-28/. Accessed 8 December 2023.

Horton, Helena, and Matthew Taylor. “Cop28: president says summit 'has already made history' as negotiations enter final days – as it happened.” The Guardian, 8 December 2023, https://www.theguardian.com/environment/live/2023/dec/08/cop-28-climate-environment-fossil-fuel-latest-news-updates-live. Accessed 8 December 2023.

Hunter, David. “GW Law Library: Library Guides: International Environmental Law: Getting Started.” Library, 21 November 2023, https://law.gwu.libguides.com/IEL. Accessed 8 December 2023.

Hunter, David. “International Environmental Law.” American Bar Association, 5 January 2021, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol--19---issue-1/international-environmental-law/. Accessed 8 December 2023.

Joselow, Maxine. “Biden to skip world leaders' summit at COP28 climate talks in Dubai.” Washington Post, 26 November 2023, https://www.washingtonpost.com/climate-environment/2023/11/26/biden-cop28-climate-summit-dubai/. Accessed 8 December 2023.

“The Origins of EPA | US EPA.” Environmental Protection Agency, 5 June 2023, https://www.epa.gov/history/origins-epa. Accessed 8 December 2023.

“Our Mission and What We Do | US EPA.” Environmental Protection Agency, 23 May 2023, https://www.epa.gov/aboutepa/our-mission-and-what-we-do. Accessed 8 December 2023.

“Ozone layer recovery is on track, helping avoid global warming by 0.5°C.” UNEP, 9 January 2023, https://www.unep.org/news-and-stories/press-release/ozone-layer-recovery-track-helping-avoid-global-warming-05degc. Accessed 8 December 2023.

“What is Environmental Law - and Why Does it Matter | American Public University.” American Public University, https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-environmental-law/. Accessed 8 December 2023.

"West Virginia v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2021/20-1530. Accessed 8 Dec. 2023.