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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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