By Bradford C. Mank | 63 Am. U. L. Rev. 1525 (2014)

In Washington Environmental Council v. Bellon, the U.S. Court of Appeals for the Ninth Circuit held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the U.S. Supreme Court held that a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied, but did not decide, that private parties might have less standing rights than states do when it declared that “[i]t is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual.” Four years later, in American Electric Power Co. v. Connecticut (“AEP”), the Supreme Court, by an equally divided four-to-four vote, affirmed a decision finding standing for both state and private plaintiffs in a tort suit seeking GHG reductions. The Court stated that “[f]our members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts.” Commentators have speculated that the four Justices who found that the AEP plaintiffs had standing may have agreed only that the state plaintiffs had standing.

By William J. Snape, III | 63 Am. U. L. Rev. 1587 (2014)

Climate change impacts the law on many levels and in many ways.  This Article asks a threshold question:  what legal structures will most effectively reduce growing levels of anthropogenic greenhouse pollution?  The answer is that an existing U.S. statute—the Clean Air Act—not only possesses clear commands to ratchet down greenhouse pollutants domestically, but also provides explicit authority to negotiate concomitant air pollution reduction with countries around the planet in a fair, transparent, and reciprocal fashion.  

By Joshua Axelrod | 63 Am. U. L. Rev. 1627 (2014)

In 2013, the Intergovernmental Panel on Climate Change (IPCC) began publishing Working Group contributions to the IPCC’s Fifth Assessment Report on the state of scientific knowledge regarding climate change. According to Working Group I, the need to significantly limit greenhouse gas (“GHG”) emissions has become imminent if international efforts to hold warming in check are to have any chance at success. Several months later, the IPCC’s Working Group II issued a more dire warning, finding consensus that while the impacts of climate change may remain “moderate” under a-one-to-two degree Celsius warming scenario, “[a]ggregate economic damages accelerate with increasing temperature.” At the same time, the risk of severe impacts to human health, food security, rural livelihoods, and biodiversity—especially in developing countries—increases as global average temperatures rise. As encapsulated by the New York Times, if GHG reductions are not achieved within a short timeframe, future generations may be faced with the expensive—and only theoretically possible—solution of mechanically removing GHGs from the atmosphere “to preserve the livability of the planet.”

By Sam Crockett Neel | 63 Am. U. L. Rev. 1661 (2014)

United States Senator Sheldon Whitehouse, a Democrat from Rhode Island, has called himself “the most optimistic person in Congress” about Congress’s ability to tackle climate change. Senator Whitehouse was elected to the Senate in 2006, a year in which Democrats won control of both the Senate and the U.S. House of Representatives. Considering that the outgoing Republican chairman of the Senate Environment and Public Works Committee, Oklahoma Senator James Inhofe, stated that climate change was the “greatest hoax ever perpetrated on the American people,” and incoming Democratic chairwoman Barbara Boxer, a Democrat from California, made addressing climate change a top priority, environmentalists hoped that legislative action on climate change was in sight. The House of Representatives passed an Obama Administration-approved cap-and-trade bill, the “American Clean Energy and Security Act of 2009,” but the bill never moved in the Senate. Thus, over eight years later, including two years in which Democrats controlled the White House and both houses of Congress, Senator Whitehouse had to use the words “we can do this,” rather than “we did this,” when discussing climate change legislation that would cap carbon pollution. However, Senator Whitehouse remains optimistic despite Congress’s inability to pass meaningful legislation in the past eight years.