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50 Envtl. L. Rep. 10115 (2020)
Democracy Defense as Climate Change Law

handle is hein.journals/elrna50 and id is 119 raw text is: Copyright © 2020 Environmental Law Institute@, Washington, DC. Reprinted with permission from ELRO, http://www.eli.org, 1-800-433-5120.


    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 Climate lawyers should ask whether something  has
gone wrong  with  our democracy. Why   can't Congress act?
   The law of democracy  and the law of climate change are
fundamentally   intertwined: 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 stasis and a scle-
rotic jurisprudence that limits democratic responsiveness.



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.

1.  42 U.S.C. §§7401-7671q, ELR STAT. CAA §§101-618.
2.  See Rebecca Lindsey, Climate Change:Atmospheric Carbon Dioxide, CLIMATE.
    GOV, 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., ANTHONY LEISEROWITZ ET AL., YALE PROGRAM ON CLIMATE CHANGE
    COMMUNICATION, CLIMATE CHANGE IN THE AMERICAN MIND: APRIL 2019
    (2019). The Resources for the Future think-tank confirms this core con-
    clusion, while recognizing that support is softer for more radical interven-
    tions. See RESOURCES FOR THE FUTURE, PUBLIC BACKS ACTION ON CLIMATE
    CHANGE BUT WITH COST CONCERNS AND MUTED URGENCY (2018). Both
    groups' work (as well as a quick look at the news) will confirm 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., ANTHONY LEISEROWITZ ET AL., YALE PROGRAM ON CLIMATE
    CHANGE COMMUNICATION, POLITICS & GLOBAL WARMING 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. As 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 Lawyers should insist that government
at every level is responsive.
   There 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 infrastructure adaptation.  The most
important  mitigation  actions we take may   be those that
mitigate  trends toward  oligarchy in a  democracy  under
threat; our most important  adaptations may  be  actions to
support egalitarianism in the face of worsening inequalities
of wealth and power.'
   This Comment moves in several steps. First, I briefly
discuss the ways  inequities in climate 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)   and
agency  deference. I close with reflections on a broadened
conceptual  framework   for climate law-as  a legal frame-
work  fundamentally  concerned  with preserving 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
    ANNALS ECON. & FIN. 92 (2014).
5.  These ideas are elaborated in JOEL WAINWRIGHT & GEOFF MANN, CLIMATE
    LEVIATHAN: A POLITICAL THEORY OF OUR PLANETARY FUTURE (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 suffering.
    Id. at 73.


ENVIRONMENTAL LAW REPORTER


2-2020


50  ELR 10115

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