Climate Change and the Individual

Abstract

“Climate change, once considered an issue for a distant future, has moved firmly into the present.”1 Atmospheric and ocean temperatures are rising, “[p]recipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing.”2 The 2017 Climate Science Special Report describes the current state of scientific knowledge about U.S. and global climate change. The report concludes that “it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation.”3 Global data show that 2016 was the warmest year on record and the third consecutive year for record global average surface temperatures.4 In the continental United States, 2016 was the second warmest year on record, after 2012, with higher than average precipitation and fifteen climate-related disasters including drought, wildfire, floods, and severe storms, which caused losses of more than $1 billion.5 The emission of greenhouses gases (GHGs),6 which move about in the atmosphere, is a major cause of global climate change. GHGs absorb terrestrial radiation that leaves the Earth’s surface. Although GHGs “create the natural heat-trapping properties of the atmosphere” and are “necessary to life as we know it,” high concentrations of GHGs cause an increase in the Earth’s absorption of energy and the resulting increase in temperature referred to as global warming.7 Recent research identifies deadly effects of climate change, “one of the biggest global threats to human health of the 21st century.”8 If global GHG emissions are not reduced, heat waves will affect 74% of the world’s population by 2100. Even with drastic GHG reductions, almost half of humans will face deadly heat.9 In Europe, increasing temperatures will result in weather disasters, especially heat waves and coastal flooding, and a sharp increase in climate-related deaths by 2100.10 By 2050, climate change may affect nutrition in developing countries as rising temperatures reduce availability of plant proteins.11 Although a number of U.S. statutes govern human activities related to climate change, no comprehensive climate change legislation exists.12 Federal programs (including the Obama administration’s Climate Action Plan13), as well as regional, state, and local initiatives, promised to mitigate and adapt to the effects of climate change. Recent developments, however, have diluted federal efforts.14 For example, in March 2017, President Trump revoked significant Obama-administration climate change policies, including the Climate Action Plan and related strategies.15 This revocation and others that followed are likely to result in increased emissions and a failure to meet climate targets (e.g., energy efficiency, methane emissions).16 Significantly, in June 2017, the United States announced its withdrawal from the Paris Agreement,17 a decision that triggered international condemnation, as well as criticism from state and local governments and large corporations in the United States. In August 2017, the United States notified the United Nations of its intent to withdraw from the Paris Agreement as soon as the United States is eligible, unless it “identifies suitable terms for reengagement.”18 The U.S. withdrawal was characterized as a “severe backwards move and an abrogation of its responsibility as the world’s second largest emitter . . . when more, not less, commitment is needed from all governments to avert the worst impacts of climate change.”19 Despite this withdrawal, however, the United States could meet its Paris goals through the efforts of cities, states, and businesses.20 The global crisis of climate change has affected the practice of law.21 Indeed, in recent years, climate change has engendered “a rapidly building wave of litigation” in the United States.22 Although the judiciary is “a latecomer to the crisis that has worsened in the hands of the legislative and executive branches,”23 litigation can play a role in forcing government regulatory action and perhaps in providing remedies for harm from GHG emissions. As commentators observed, “[t]he president might root out climate policy from executive branch decision-making, but he cannot unilaterally remove the issue from judicial consideration.”24 This Report, guided by a questionnaire prepared for the Twentieth General Congress of the International Academy of Comparative Law, addresses the topic of climate change lawsuits and the individual. The questionnaire focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change to its not on as corporations and the of climate change filed in the United States, a number individual that on of mitigation and for this Report of action to climate change. a number of by plaintiffs in climate change The Report a number of by individual plaintiffs and against public and private Climate change is of state, local judicial litigation in which the and an issue of the policy of climate change and U.S. and climate change to of government responsibility to GHG emission by and government with for in to GHG climate change litigation to and climate change into in The of litigation” and by a of U.S. climate change litigation This to more than a of for and related to climate change. In some of the in the climate change is not the of the in federal and state the public and and a climate change and significant number of U.S. climate change are on federal statutes and and judicial of and have government regulatory by more for mitigation the for example, to climate-related action and to as the of the and federal for failure to GHG emissions and the of climate change. of climate change lawsuits have to example, of emissions after with plaintiffs Even more state of GHG emissions and climate change state that on and regulatory in local on local government Although climate change litigation on federal and state statutes has a plaintiffs have of with are for and have on the of action in climate change and some for with and considered is and some on public with its on may for some climate change lawsuits are to with a to the however, federal public in by that and the it federal to of emissions from on state may to plaintiffs have in but some commentators as the cause of for a in of and significant in against GHG especially in that emissions a to plaintiffs and that emissions caused may more in against local governments but that the than an extreme precipitation was cause of harm may Despite the of some climate change may not an to mitigate adapt to climate change. As change the this and in and in emissions the a action and as to once all of and of will have to climate change from a that is to private and local than Climate change and cannot through the was to private of and was and cannot to a to and for and all of have and the to and to and after a regulatory has been can and play a plaintiffs have filed a number of in on the public are of a global the Atmospheric with a with in and governments to natural of for and Although the of public in U.S. is to the is an of federal and state with in recent public litigation that the government a to its to public including the and affected by GHG emissions. public is and may to climate change. have the as a public and a have in a state GHG have public have that are to and have public to the is that to climate change could an state to as of the public in and to natural and as in of climate change the of judicial to climate change perhaps on and the Climate change, it is is “a global and is that by the of and the by international have to the for from harm caused by GHG emissions. in the of climate and from the on Climate and others that emissions of GHGs are a major cause of climate The in in in global temperatures has with a significant increase in the of in the the are For when is into the atmosphere, it the of a energy and the of is a a Despite judicial of the climate change litigation a number of in all climate change others to of on the cause of action and the The focuses on major to to mitigate the effects of climate change. not to plaintiffs in climate change of the U.S. which federal judicial to and plaintiffs in federal have to state The of to that the has a in the and that will in a The U.S. the of in an a show it has an in that is and and not the is to the action of the and it is as to that the will by a The for is to the than to the have to the of the and the the of the of and climate change lawsuits on of the have have to in the are to the and the the the of individual in the The in and The that we that the affect the in a and individual have that plaintiffs that are more than by all a global however, climate change of The that from climate change are may to that are but in a the that not the in the of The to the a and caused by climate change. the of plaintiffs are to a to a of As the U.S. of for the the of in climate change might by which a public action on to an a of scientific of “a of the of for can for of the climate change no could the on the harm by the this more As the in climate change has the that the reduce global but not that a decision can of climate change of a to government failure to the impacts of climate change in the the The that the statutes the government to more regulatory action to mitigate climate federal the the government to the impacts of that affect the to government failure to climate change in in the effects of a than and and harm global was not in the to plaintiffs of climate change have the decision that the harm is not related to climate and and to the failure to climate change could with in the when plaintiffs that are (e.g., failure to climate change in a decision that in harm to may to when can an for that is not climate is when a the failure to GHG emissions federal was a issue in States, local and private that the U.S. its responsibility the to the emissions of including from the to the to GHG emissions and the for to with the In its the that GHG emissions caused but that the state of the for as and for its from the of rising sea that could coastal In terms of emissions from to GHG The of emissions to the by and its The decision in was of as but some that the decision the for especially and As private plaintiffs could the to in from rising sea to climate change, but have been on are in the is that “a government action leaves some that to climate change and its The in a a of which in a federal it that of are to an branch of government and not in federal The might considered an of the for that can for the of In a the of a and that of is from the the the as a The that that are not Indeed, have been to In the climate change the was in and in a federal of emissions from The federal in that climate change was and especially on a of an policy of a for and that it needed a legislative policy it could the global warming The the as the the in and that of the The was not and the could a public the The but not the the that the which the to federal In a more recent of and public a federal in of the in The that the not a but a of been The however, that plaintiffs a have to to of the of judicial and the to litigation in the of climate the not and others that it was not to to it not of not from the of the The of a of issue the judicial and legislative has the of some climate change on federal decision is a federal public for that GHG emissions from to global Federal when Congress not and that the federal of GHG emissions. 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