UNT Global Warming Presentation

I have attached,the previos annotated bibliography based on global warming which includes the articles and references. i also have attached the outline of what the power point should have.

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Paola Becerril
Annotated Bibliography on Global Warming
March 2, 2022
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Al-Ghussain, L. (2019). Global warming: review on driving forces and mitigation: Global
Warming: Review on Driving Forces and Mitigation. Environmental Progress &
Sustainable Energy, 38(1), 13–21. https://doi.org/10.1002/ep.13041
This article notes that global warming remains a major threat affecting the world today.
This is caused by various human activities, especially due to the overuse of fossil fuels to
generate energy. The use of such energy sources contributes to increased concentration of the
greenhouse gases such as CH4, CO2, and N2O in the atmosphere hence increasing heat in the
environment. Based on the article, water vapor is linked to two-thirds of global warming. On the
other side, carbon dioxide is identified as the main controlling factor in climate change and
global warming. The argument holds that without an increase in the concentration of CO2, global
warming would not occur. Hence an increase in the amount of carbon dioxide in the atmosphere
contributes to an increased temperature, while a decrease would contribute to lower surface
temperatures. According to Al-Ghussain (2019), the temperature changes are also dependent on
the amount of humidity in the atmosphere. The concentration of other gases such as the N20 and
CH4 have insignificant contributions to global warming given their low atmospheric
concentrations. The article holds that the mitigation strategies in place would help reduce the
amount of carbon dioxide in the atmosphere hence reducing the chances of increased global
warming. This article provides important information that I can use in addressing some of the
factors that contribute to global warming. The article will be resourceful while researching global
warming and how it can be reduced.
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Rosso Grossman, M. (2018). Climate change and the individual. The American Journal of
Comparative Law, 66(suppl_1), 345–378. https://doi.org/10.1093/ajcl/avy018
The author notes that climate change was once considered a future problem that has
moved to the present. There are various climatic changes, such as the rise in the ocean and
atmospheric temperatures and the frequency of adverse weather events witnessed today. The
article cites a report from 2017 on climate change, noting that human activities are linked to
increasing global warming. The article identifies greenhouse gases in the atmosphere as the
major cause of global warming and climate change. Information provided in the article is based
on a questionnaire to address lawsuits filed by people against private and public actors who
contribute to climate change. The article notes that most environmental organizations sue the
actors for adopting mitigation against climate change that would reduce negative effects leading
to global warming. This article will help highlight the measures taken to reduce global warming.
National Geographic. (2019, January 14). Global Warming effects. National
Geographic. https://www.nationalgeographic.com/environment/article/globalwarming-effects
The article discusses the major causes of global warming, noting that the planet has
continued to experience increased temperatures since 1906. This article notes that the warming
happens from the north to the south pole with an increase of 1.6 Degrees Fahrenheit. The effects
are felt as the increased heat melts sea ice and glaciers, causing a shift in precipitation patterns
while animals are also affected by their natural habitats. The changes are attributed to the shift in
climatic conditions that lead to increased average temperatures. The main contribution of these
factors is the human activities that lead to increased greenhouse gases in the atmosphere. Impacts
of the climate in relation to global warming are documented, such as melting ice at the poles, rise
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in sea levels, and disruption of species from their natural habitat. The information provided in
this article will help understand the causes of global warming, especially the contributions of
human activities in increased greenhouse gases. Also, the article discusses the effects of global
warming, and I will incorporate them in my research study. Based on the information, mitigation
methods can be identified, which I intend to incorporate in my recommendations.
Thompson, T. (2021). Arctic sea ice hits 2021
minimum. Nature. https://doi.org/10.1038/d41586-021-02649-6
The article discusses the changes in Arctic sea ice, which has passed the minimum extent
of shrinking. The article notes that the annual minimum reported was the lowest since 2014. The
changes are attributed to the changes in global warming despite the overall trends reported in sea
ice. The article notes that there is an increase in the average global temperatures. Despite the
changes in the average atmospheric temperatures, cool summer is witnessed. Arctic regions are
said to have cloudier and cooler seasons which haven’t been witnessed before. The article also
highlights the effects of low weak pressure in the Arctic, which ensures cold air, hence
preventing ice melting. The formation of clouds also blocks the sun, which slows down ice
melting. With such conditions, the ice tends to be thicker than before. The article provides a
detailed discussion on how various conditions such as low pressure and cold temperatures can
help prevent ice melting. Such conditions can help prevent global warming and create a better
environment for species to thrive in. I will use the information provided in the article to show
how long temperatures reduce the melting of ice while creating better conditions for animals and
other species to thrive.
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References
Al‐Ghussain, L. (2019). Global warming: review on driving forces and
mitigation. Environmental Progress & Sustainable Energy, 38(1), 13-21.
National Geographic. (2019, January 14). Global Warming effects. National
Geographic. https://www.nationalgeographic.com/environment/article/global-warmingeffects
Rosso Grossman, M. (2018). Climate change and the individual. The American journal of
comparative law, 66(suppl_1), 345-378.
Thompson, T. (2021). Arctic sea ice hits 2021
minimum. Nature. https://doi.org/10.1038/d41586-021-02649-6
Global Warming: Review on Driving Forces and
Mitigation
Loiy Al-Ghussain
Mechatronics Engineering Department/NanoLab, School of Applied Technical Sciences, German Jordanian University, P.O. Box
35247, Amman, 11180, Jordan; loui.essam@hotmail.com (for correspondence)
Published online 00 Month 2018 in Wiley Online Library (wileyonlinelibrary.com). DOI 10.1002/ep.13041
Global warming is one of the major consequences of the
human activities where the overuse of fossil fuels as energy
resources caused the increase in the concentration of the
greenhouse gases (GHGs), such as CO2, CH4, N2O, and water
vapor, in the atmosphere causing the increase in the average
surface temperature of the earth. This article reviews the driving forces of global warming and highlights the major contributors to this phenomenon and presents some of the mitigation
techniques. Water vapor is responsible for two-third of the
global warming; however, CO2 is considered as the controlling
factor of the global warming. In other words, if the concentration of CO2 did not increase, global warming would not have
happened. Scientists claim that doubling or halving the CO2
in the atmosphere causes the change in the average surface
temperature of the earth by +3.8 C or −3.6 C, respectively.
However, this amount of change depends on the change in
the humidity of the air which in return depends on the air’s
temperature. Conversely, even though the other GHGs such as
CH4 and N2O have stronger ability to absorb the radiation,
their contribution in the global warming is insigniﬁcant
because of their low concentration in the atmosphere compared with CO2. The adoption of the mitigation and adaptation strategies at the same time is the most effective economic
and technical solution for the global warming issue. © 2018
American Institute of Chemical Engineers Environ Prog, 2018
Keywords: global warming, greenhouse gases, water
vapor, CO2
INTRODUCTION
Global Warming and Greenhouse Gases
Global warming is deﬁned as “the increase in the surface
average temperature of the earth” because of the increase in
the concentration of greenhouse gases (GHGs) such as water
vapor, methane, ozone, carbon dioxide, chloroﬂuorocarbons
(CFCs), and nitrous oxide [1]. Greenhouse effect is the main
cause of being earth a suitable place to live on, without GHGs,
the earth surface temperature would be too law and so no life
will be on earth. However, the increase in the amount of
GHGs in the atmosphere led to this catastrophic phenomenon,
that is, the global warming [2].
The atmosphere of the earth consists of nitrogen, oxygen,
and argon mainly and other gases in small quantities including
GHGs and some pollutants as represented in Table 1. The percentage of the permanent gases (nitrogen, oxygen, and argon)
© 2018 American Institute of Chemical Engineers
Environmental Progress & Sustainable Energy DOI 10.1002/ep
does not change while the percentage of the trace gases (carbon dioxide, methane, nitrous oxides and ozone) changes
daily, seasonally, and annually [3,4]. GHGs have the ability to
absorb and reradiate infrared radiation because of the internal
vibrational modes that their atoms have, unlike the other main
components of the atmosphere [5].
Heat Retention Mechanism
The solar radiation spectrum consists of three wavelength
ranges; ultraviolet range, visible range and infrared range and
each range possess a portion of the solar energy. Figure 1
shows the components of the extraterrestrial solar radiation
spectrum and the fraction of the solar energy in each range.
Infrared waves carry almost half of the solar energy in the
spectrum, most of these infrared waves are with high wavelength due to the sun surface temperature (5777 K) [5,6].
As the sun radiation goes through the atmosphere, minor
portions of it get absorbed by the GHGs and reﬂected toward
the space due to clouds and aerosols. Carbon dioxide and
methane absorb the waves in the infrared region, while ozone
absorbs the waves in ultraviolet region. Moreover, the absorption effect of water vapor is distributed throughout all the
wave lengths [7]. The major portion of solar radiation hits the
earth’s surface and the terrestrial objects causing a rise in the
temperature of these objects. As the earth’s surface and terrestrial objects get warmer they radiate short-wave infrared radiation (due to their low temperature (277 K) compared with the
sun) toward the atmosphere, which will be absorbed by GHGs
[4]. Figure 2 shows the extraterrestrial and terrestrial wavelength spectrum and the characteristics of water vapor and carbon dioxide to absorb radiant energy at short-wave infrared
region.
THE DRIVING FORCES OF GLOBAL WARMING
Natural Events
The climate of the earth has changed many times in the
past with causes related to nature like the variation in the solar
radiation emitted by the sun, the volcanic eruptions, and the
variation in the incident solar radiation on earth due to Milankovitch cycle [8,9]. Milankovitch cycle is deﬁned as a long-term
cycle that occurs every 10,000 years, this cycle launches natural global cooling and warming by three causes: the eccentricity, the obliquity, and the precession. The eccentricity is
deﬁned as the change in the elliptical shape of the earth’s orbit
while the obliquity is deﬁned as the change in the declination
angle of the earth and the precession is deﬁned as the wobble
of earth’s axis [10].
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Table 1. The gas content of the earth’s atmosphere [3,4].
Gas name
Nitrogen
Oxygen
Argon
Carbon dioxide
Neon
Helium
Methane
Nitrous oxide
Ozone
Percentage (%)
78
21
0.9
0.0935
0.004675
0.001299
0.000442
0.000078
0.00001
NASA satellites have been measuring the sun irradiation
since 1978, the readings show a very slight drop in irradiance
(the rate of energy emitted by the sun) over this period of time
[11]. Long-term estimations were made to determine the effect
of the variation of solar radiation; the results show that the
change in the solar radiation could be responsible for not
more than 10% of the 20th century warming. Moreover, if the
warming is caused by the increase in solar activity the whole
layers of atmosphere should be warmed, instead scientist
observed a cooling pattern in the upper layers of the atmosphere and a warming pattern in the lower layers of the atmosphere [12].
Volcanic eruptions have a signiﬁcant effect on the temperature of the earth; the eruptions carry gases and ash into the
upper atmosphere; these gases, especially sulfuric gases, help
in the formation of clouds causing the reduction of the global
temperature for 3 years. In addition, volcanoes emit large
amounts of carbon dioxide and water vapor, which contributes
in the global warming; however, the amount of carbon dioxide
and water vapor emitted by the volcanos is very small compared to human emissions [13,14]. Volcanos emit an annual
average between 130 and 230 million tons of carbon dioxide
while mankind causes annual emissions of 26 billion tons of
carbon dioxide (100 times more than volcanos) [15,16].
Natural events are still acting but with too small and slow
inﬂuence on the climate compared with human activity inﬂuence. Scientist developed climate models based on data from
satellites and from ground stations to recreate temperature
models over the past 150 years to proof that human activities
are the main inﬂuence on the climate. The simulations of the
model were able to ﬁt the global temperature observations by
considering only the solar natural variability and the volcanic
emissions for the period between 1750 and 1950, but after
1950, the global temperature trends cannot be explained without considering the GHGs added by mankind [15,16]. Figure 3
shows the ensembles between the global observed temperature anomalies and the simulated ones by considering only the
natural causes and by considering both natural and anthropogenic causes.
Anthropogenic Emissions
Water Vapor
Water vapor is considered as the most abundant gas in the
atmosphere and it is considered as an important element that
gives feedback about the climate and so about global warming. Water vapor is responsible for two-third of the global
warming; the amount of additional warming in the atmosphere
is determined by the amount of water vaper that enters the
atmosphere. The atmosphere currently maintains a constant
equilibrium between temperature and water vapor concentration due to the short lifecycle of water vapor. However, as the
temperature continue to increase the balances will be lost and
will increase the global warming where water vapor has the
ability to double the warming caused by carbon dioxide [9,16].
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4.6%
45.6%
48%
Ultraviolet (0-380 nm)
Visible (380-780 nm)
Infrared (>780 nm)
Figure 1. The fraction of the extraterrestrial solar radiation in
each range of solar spectrum. [Color ﬁgure can be viewed at
wileyonlinelibrary.com]
Water vapor can also affect the global warming in an indirect way; when the climate gets warmer the percentage of
water vapor increases in the atmosphere, which increases the
possibility of forming clouds [11]. Clouds play an important
role in cooling or even warming the planet, brighter clouds
reﬂects the solar radiation to space and by that they help in
cooling the planet. Conversely, clouds have the ability to
absorb and emit energy in the infrared region where low
clouds have approximately the same temperature of earth surface and so they emit almost the same amount of infrared
energy. While high cold clouds absorb the energy coming
from the lower atmosphere and due to their low temperature,
the amount of energy emitted will be low which means that
high clouds will reduce the ability of earth to cool and so
cause the increase in the earth’s temperature [9,16].
Carbon Dioxide
Carbon dioxide concentration has increased in the atmosphere by 30% since 1950, which is a signiﬁcant increase. This
increase was caused most likely by human’s activities. Figure 4
shows the global change in the concentration of carbon dioxide through the history until 2013. Humankind depends mainly
on fossil fuel to produce energy where burning these fuels
produces different amount of carbon dioxide, water vapor,
and nitrous oxides depending on the fossil fuel type. Coal, natural gas, and oil are the most common types of fossil fuel that
are used by humankind where in 2015, it was reported that
45% of CO2 emissions came from coal burning, 35% from oil
burning, and 20% from natural gas burning [17].
Humankind not only increased the amount of carbon dioxide but also disrupted the carbon dioxide cycle in the nature
by overcutting the forests. The deforestation will cease the
absorption of carbon by trees and so carbon dioxide concentration will increase in the atmosphere where 25–30% of the
yearly emitted GHGs is because of deforestation. In addition,
50% of the trees is carbon and burning these trees will release
the carbon stored in the trees as CO2 which will exacerbate
the consequences of the deforestations [18].
Carbon dioxide needs hundreds of years (5–200 year) [16]
to adjust and achieve the balance and as the percentage of carbon dioxide increases, the balance will happen at higher temperature and at higher water vapor levels. Therefore, scientists
believe that carbon dioxide behave as controlling factor rather
than reacting factor, as it controls the amount of water vapor
carried by the atmosphere [2]. Doubling or halving the carbon
dioxide in the atmosphere causes the change in the earth’s
Environmental Progress & Sustainable Energy DOI 10.1002/ep
Figure 2. Water vapor and carbon dioxide absorption characteristics of the radiation. Reproduced by permission of Bureau of
Meteorology, © 2018 Commonwealth of Australia. [Color ﬁgure can be viewed at wileyonlinelibrary.com]
Figure 3. The ensembles between the global observed temperature anomalies and the simulated ones by considering only the
natural causes and by considering both natural and anthropogenic causes. Reproduced from: Solomon, S., Qin, D., Manning, M.,
Marquis, M., Averyt, K., Tignor MMB., et al (2007). Climate Change 2007: The Physical Science Basis. Contribution of Working
Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. [Color ﬁgure can be viewed at
wileyonlinelibrary.com]
temperature by +3.8 C or −3.6 C respectively. However, the
amount of the change in the earth’s temperature—caused by
the change in the carbon dioxide concentration—depends on
the change in air humidity which in return depends on the air
temperature [19,20].
percentage of methane produced globally by different human
activities between 2003 and 2012.
Methane molecule has the ability to absorb and reradiate
the energy 10 times more effective than the carbon dioxide
molecule. However, scientist usually focus on the total levels
of the emissions instead of the intensity in their analyses where
the concentration of carbon dioxide is approximately 200 times
more than methane and also the lifetime of carbon dioxide is
much bigger than the atmospheric methane [24,25] (methane
life time is 12 years) [16].
Methane
The second largest anthropogenic contributor to global
warming is methane emissions, the amount of methane emissions have increased by more than the double over the last
150 years [21] where it is reported that almost 60% of methane
emissions comes from human activities. Anthropogenic methane can be released into the atmosphere during the extraction,
production, transportation, reﬁning, and the distribution of natural gas (methane is a primary component). Moreover, signiﬁcant amounts of methane come from livestock, agriculture,
human waste, and from landﬁlls [22]. Table 2 shows the
Nitrous Oxide
Human Activities such as fossil fuel combustion, agriculture,
industrial processes, and wastewater management are responsible for about 40% of the total N2O emissions [25], Figure 5
shows the global N2O emissions by sector in 2010. If the
trends of N2O increase continue, the N2O emissions are
Environmental Progress & Sustainable Energy DOI 10.1002/ep
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Figure 4. The concentration of carbon dioxide in the atmosphere. Reproduced from: Climate change: How do we know? NASA
Global Climate Change Center, https://climate.nasa.gov/evidence/. [Color ﬁgure can be viewed at wileyonlinelibrary.com]
Table 2. Global methane emissions by human activities
between 2003 and 2012 [23].
Sources
Agriculture and waste
Wetlands
Oil and natural gas
Coal
Biomass burning
Percentage (%)
37.08
34.83
16.61
7.87
5.62
predicted to be 25.7 Tg N2O/year by 2100 which will cause an
increase in the surface average temperature by 0.37 C [27].
N2O stays approximately 114 years in the atmosphere and it is
removed as a part of the nitrogen cycle by certain bacteria or
destroyed by chemical reaction or by ultraviolet radiation. N2O
has the ability to warm the atmosphere almost 300 times more
than CO2 (1 to 1 base); however, the concentration of N2O is
much smaller than CO2 [25].
THE CONSEQUENCES OF THE INCREASE IN THE CONCENTRATION OF GHGS
Temperature Rise
After the industrial revolution the temperature of the earth’s
surface began to increase; scientists at Goddard Institute for
Space Studies (GISS) say that since 1880, the earth’s surface
average temperature has increased by about 0.8 C. NASA,
NOAA, the Japan Meteorological Agency and the Met Ofﬁce
Hadley Centre in United Kingdom recorded the annual temperature anomalies from 1880 to 2014, all the records show
the same trend (peaks and valleys) with different values [28],
as shown in Figure 6.
Earth’s average surface temperature will continue to rise as
humankind continues his environmentally harmful activities
specially burning fossil fuel. Based on three CO2 emissions
scenarios, scientists predict that the average surface temperature will increase by 2–6 C by the end of 21st century [9], as
shown in Figure 7. Plants, crops, and animals need speciﬁc
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conditions to survive and grow including the suitable ambient
temperature and enough amount of water where the increase
in the global temperature will disturb the growth and the
breed of these creatures. Moreover, the increase in the global
temperature will lead to increase the intensity and the spread
of extreme weather events such as droughts, hurricanes, heat
waves, and ﬂoods [29], which will increase the number of
human and material casualties. In addition, as the climate get
warmer the snow and the ice melts down causing not just the
sea level to increase but also the transformation of sunlight
reﬂecting surfaces (snow surfaces) to sunlight absorbing surfaces which will causes more energy to be trapped in the earth
atmosphere [9].
Oceans and Marine Life
Half of the anthropogenic CO2 has been absorbed with the
time by oceans which reduces the warming of the climate;
however, this causes a serious change in the chemistry of the
water. When carbon dioxide dissolves in water, carbonic
acidic is formed which will cause a drop in the surface water’s
pH. Over the past 300 million years, oceans’ water tends to be
slightly basic with approximately pH of 8.2, but today it is
around 8.1, this drop represents 25% increase in the acidity
over the past two centuries and this change in the water’s pH
will affect the life cycle of many marine creatures [30].
Moreover, almost 80% of the heat trapped because of
greenhouse gases is absorbed by oceans causing the rise in
the water’s temperature and so the expansion of water. Scientists say that about half of the rise in water level in the
past century is due to the thermal expansion. Sea level has
been rising at a rate of 0.14 in. per year since 1990 where
this increase is mainly caused by thermal expansion of
water. Furthermore, as the climate get warmer, the snow
and the ice will melt down causing sea level to increase
[9,31]. Scientists expect that by 2100 sea level will rise
between 0.8 and 2 m which mean thousands of coastal cities and islands will be demolished and storm surges will be
more powerful [32].
Environmental Progress & Sustainable Energy DOI 10.1002/ep
0.29%
5.75%
3.89%
7.09%
2.98%
4.51%
0.52%
2.73%
72.22%
Other sources
Waste
Industry
Land use
Energy
International bunkers
Residential and commercial
Transport
Agriculture
Figure 5. Nitrous oxide global emission by sector in 2010 [26]. [Color ﬁgure can be viewed at wileyonlinelibrary.com]
Figure 6. The annual anomalies in average surface earth
temperature between 1880 and 2014 from four independent
records. Reproduced from: World of Change: Global
Temperatures, Simmon, R., NASA Earth Observatory Center,
https://earthobservatory.nasa.gov/WorldOfChange/decadal
temp.php. [Color ﬁgure can be viewed at wileyonlinelibrary.com]
The increase in water’s temperature will not affect only the
thermal expansion of the water but also will affect the marine
life where as the oceans become warmer the percentage of
dissolved oxygen will be reduced which will cause the death
of many species. Coral bleach is one of the most dramatic
effects of global warming, the increase in the water temperature will cause the death of the algae that lives inside the coral;
these algae provides the coral with the food and the death of
them means the death of the coral [33,34].
Figure 7. IPCC estimation for the average surface temperature
rise based on the rate of CO2 emissions. Reproduced from
Solomon, S., Qin, D., Manning, M., Marquis, M., Averyt, K.,
Tignor MMB., et al (2007). Climate Change 2007: The Physical
Science Basis. Contribution of Working Group I to the Fourth
Assessment Report of the Intergovernmental Panel on Climate
Change. [Color ﬁgure can be viewed at wileyonlinelibrary.com]
Extreme Weather Events
Storms and Hurricanes
The temperature difference between the equator and the
poles fuels the formation of mid-latitude storms and the
decrease in this temperature difference by the global warming
could affect the formation of the storms. As the temperature of
the atmosphere increases, the ability of it to carry water vapor
will increase causing humidity to increase where at the poles
the humidity and the temperature are low and any increase in
water vapor and heat could raise the temperature in a great
way. On the other hand, in the equator, the temperature and
the humidity are already high and the change in them will not
be high; thus decreasing the temperature difference which will
decrease the number of storms; however, the increase in the
moisture captured in the atmosphere will increase the intensity
of these storms [15,35].
Global warming could also affect the formation of tropical
storms and hurricanes where the formation of tropical storms
is driven by the sea surface’s temperature and the air’s humidity. Global warming increased the ability of atmosphere to
hold moisture and also increased the temperature of the seawater surface, which will increase the intensity of these storms
and the possibility of forming hurricanes by increasing the
wind speed of these storms. The temperature of the surface
seawater was increased by 0.3 C since 1980 [34], also air
humidity has increased about 4% since 1970 [19] which could
Environmental Progress & Sustainable Energy DOI 10.1002/ep
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without the effect of global warming where global warming is
affecting the factors that cause the increase in droughts, such
as the shift in the precipitations trends from moderate and light
rains to short and heavy precipitations as well as the early
snow melt and the increase in the evaporation rate from vegetation and soil [41–43].
Heat Waves
Heat waves are deﬁned as prolong periods of hot weather
where such events have signiﬁcant effects on human health
where the exposure to high temperature for a long period
causes serious health issues such as fainting, heatstroke, and
clams [35,37,44]. Heat waves used to be extremely unique
where in the period between 1951 and 1980 extremely hot
temperatures affected only 0.1% of the world but after 1980
the extreme heat events have become more prevalent. Heat
waves currently affect approximately 10% of the world and it
could affect 17% of the world after one decade if the warming
continues [38,45]. As the average global temperature increases,
the climate will shift toward warmer climate causing more
record of extreme weather as shown in Figure 8 [16] where the
mean in the graph is the average temperature and the variance
is the spread of the temperature around the mean.
GLOBAL WARMING MITIGATION AND ADAPTATION
Figure 8. The effect of the average global temperature on the
occurrence probability of extreme weather. Reproduced from:
Houghton, JT., Ding, Y., Griggs, DJ., Noguer, M., Linden, PJ van
der, Dai, X., et al. (2001). Climate Change 2001: The Scientiﬁc
Basis. Contribution of Working Group I to the Third Assessment
Report of the Intergovernmental Panel on Climate Change.
[Color ﬁgure can be viewed at wileyonlinelibrary.com]
increase the hurricanes wind speed by 1 knot according to
hurricane intensity models. However, this cannot be veriﬁed at
the present because the intensity of hurricanes is measured
with an accuracy of 5 knot and so the difference will not be
noticed [34].
Precipitations, Droughts, and Floods
The intensity and the geographic pattern of precipitation
have signiﬁcantly changed in the past 40 years where dry
regions have become drier and wet regions have become wetter; however, the total precipitation of the world has slightly
changed. Global warming is responsible for these changes
where the increase in the atmospheric temperature increased
the ability of the atmosphere to hold moisture. As the moisture
content in the atmosphere increases, the potential of producing heavier precipitation will increase; however, these precipitations events become shorter and less frequent because it
need more time to reﬁll the atmosphere with moisture [35–38].
During the 20th century, the frequency of great ﬂoods has
increased substantially, the heavy precipitations over a short
period of time contributes to the increase in the ﬂoods around
the world. The ability of soil to soak up the water in the case
of heavy precipitation will be low, which will increase the
amount of runoff water causing ﬂoods also regions near water
bodies will witness ﬂoods due to the rise in the water’s
level [38–40].
Since the 1950s, drying trends have been observed in the
southern and northern hemispheres and since 1970s, the
extent of very dry areas across the world have doubled. Climate models cannot explain these trends and extensions
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There are three strategies to deal with the climate change;
the ﬁrst one is to do nothing and continue to increase the
amount of greenhouse gases in the atmospheric, which will
lead to the extinction of life on earth. The second strategy is
the mitigation of climate change by reducing the amount of
anthropogenic greenhouse gases and the third strategy is the
adaptation to climate change by developing techniques and
ways that will reduce the impact of climate change [39].
Figure 9 shows a schematic diagram for the cost of mitigation,
adaptation, impacts, and the inter-relationship between the
three strategies.
As shown in Figure 9, the adoption of one strategy has the
highest cost where no action strategy has a high cost because
of the unpreparedness to face the increasing impacts of the climate change while mitigation strategy means cleaning up the
extra greenhouse gases from the atmosphere which is very
expensive and unlikely to happened. Conversely, the adaptation strategy means the continuous development of protective
techniques to face the increasing impacts of climate change.
However, the combination of the adaptation and mitigations
strategies will have an optimal cost; reducing the greenhouse
emissions to certain limit will make the adaptation strategy less
costly because the impacts of climate change will be
reduced [39,46].
Intergovernmental Panel on Climate Change (IPCC) deﬁnes
the adaptation as “the adjustment in nature or human systems
in response to actual or expected climatic stimuli or their
effects, with moderates harm or exploits beneﬁcial opportunities” [21]. The adaptation of humankind to climate change can
happen in different ways like the adaptation driven by the
change in government policies and the adaptation driven by
the technological advance. However, the adaptation is limited
by ﬁnancial, technological, and social factors; in addition,
humankind may have the ability for the climate change adaptation in a short-term using different techniques while many
other species may not have the short-term adaptation. The
resilience of species to the climate change requires long time
so that they can adapt to these changes, which makes the
adaptation alone not an effective solution. Building dams at
rivers and coasts to prevent the ﬂoods and protect the coastal
cities from the rise of sea water level is an example of one of
the adaptation techniques [39,46,47].
While mitigation is deﬁned by IPCC as “an anthropogenic
intervention to reduce the source or enhance the sinks of
greenhouse gases” [21]. This can be done by two ways; the
Environmental Progress & Sustainable Energy DOI 10.1002/ep
Table 3. Different mitigations techniques to reduce the
greenhouse emissions from different sources. Adapted from:
Solomon, S., Qin, D., Manning, M., Marquis, M., Averyt, K.,
Tignor MMB., et al (2007). Climate Change 2007: The Physical
Science Basis. Contribution of Working Group I to the Fourth
Assessment Report of the Intergovernmental Panel on Climate
Change.
GHGs source
Energy
generation
Transportation
Buildings
Figure 9. Schematic diagram for the interrelationship between
the cost of the three climate change strategies; adaptation,
mitigation, and no action. Reproduced from: Solomon, S., Qin,
D., Manning, M., Marquis, M., Averyt, K., Tignor MMB.,
et al (2007). Climate Change 2007: The Physical Science Basis.
Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change.
Industry
Agriculture
Mitigation technique
Increasing the efﬁciency of energy
generation from the conventional energy
resources; the transition to renewable
energy resources instead of fossil fuels;
and the use of early carbon capture
technologies.
Increasing the efﬁciency of vehicles in
utilizing fuels; encouraging the use of
hybrid cars; and providing a sufﬁcient
public transportation.
The shift from regular building to the green
building with more energy monitoring and
the use of solar energy in cooling and
heating the building in addition to heating
the water.
Improving the use of heat and power
recovery; encouraging the recycle of the
materials and substitutions; and gas
emissions control.
Improving the application techniques of
nitrogen fertilizer to reduce N2O emissions
and improving livestock and manure
management to reduce methane
emissions.
Increasing the recovery of CH4 from
landﬁlls; controlling incineration of the
waste with heat recovery; and recycling
and minimizing the wastes.
ﬁrst one by stop emitting these gases from its sources, Table 3
shows different mitigation techniques to reduce or even stop
the greenhouse emissions from different sectors. The second
way is to develop techniques to absorb the greenhouse emissions from the atmosphere, for example, trees can absorb CO2
from the atmosphere where planting trees will be a technique
to reduce the amount of CO2 in the atmosphere. The combination between the two ways is required, nowadays, as the transition to an alternative clean energy source or the prevention
of greenhouse emissions is a long-term strategy [39].
As the carbon dioxide is considered as the controlling factor
of the global warming, the efforts should be placed toward
cutting the CO2 emission and by the sequestration of these
emissions. The sequestration of CO2 emissions can signiﬁcantly contribute in limiting the consequences of global warming; however such technologies are still unfeasible from
economic point of view [48]. Cutting the CO2 emissions seems
to be the most attractive option accordingly to scholars as this
technique is feasible and can be implemented all around the
world [49]. Energy generation sector possesses signiﬁcant
potential in cutting the CO2 emissions as this sector is responsible for almost 37.5% of CO2 emissions [50,51]. Renewable
energy resources such as solar and wind energy are abundant, suitable alternative for fossil fuels and can be utilized in
affordable and feasible ways [48]. It was reported in Ref. [52]
that renewable energy resources can play a vital role in cutting the CO2 emissions where if the share of renewable
energy in the electricity generation mixture increased by 2050
to 39%, it can reduce the CO2 emissions by 50%. Moreover,
the use of new technologies in the conventional power generation systems with higher efﬁciencies can contribute signiﬁcantly in reducing the CO2 emissions. For instance, the use of
integrated gasiﬁcation combine cycle in coal-ﬁred power
plant increases the thermal efﬁciency to almost 45% while the
use of combined cycle gas turbine with natural gas increases
the efﬁciency to about 60%. The use of such technologies
can reduce the CO2 emissions by up to 50% for each power
generation unit [51].
Furthermore, the use of hybrid, electric and the bio-fuel
powered vehicles plays a vital role in the reduction of the CO2
emissions as the transportation sector is responsible for about
22% of the global CO2 emissions. The use of such vehicles has
a potential to decrease the CO2 emissions by 300–700 Mt-C in
2020 [51,53]. Furthermore, improving the energy efﬁciency in
buildings can contribute in cutting the CO2 emissions by
950 Mt-C in 2020 as the building sector is responsible for
almost 31% of the total CO2 emissions. This amount of CO2
emissions reduction can be achieved by enhancing the energy
efﬁciency of the lighting, equipment, and appliances [51].
Heating, ventilation and air conditioning systems (HVAC)
account for the majority of the energy consumption in the
buildings [54] where the insulation of the building’s envelope
plays a vital role in this amount [51]. The use of variable refrigerant ﬂow (VRF) HVAC systems can save signiﬁcant amount of
energy where in Ref. [55] they reported almost 82% reduction
in the energy consumption in their case study by the use of
VRF system instead of conventional ones.
Moreover, by improving the efﬁciency of the industrial process and the efﬁciency of the material used in the industry, it is
possible to reduce the CO2 emissions by 1300–1500 Mt-C in
2020 where the industrial sector is responsible for almost 43%
of the global CO2 emissions [51]. The improvement of the
industrial process efﬁciency can be performed by the use of
advanced technologies such as the waste heat recovery systems, which would signiﬁcantly decrease the energy losses
Environmental Progress & Sustainable Energy DOI 10.1002/ep
7
Waste
management
GHGs, greenhouse gases.
while the improvement of the materials’ efﬁciency can be
achieved by efﬁcient product design and the adaption of reuse
and recycling strategies [51].
CONCLUSION
This article reviews the driving forces of global warming
and suggests the most probable cause of global warming
based on the literature. Moreover, this article presents some of
the techniques that can be adopted to mitigate the global
warming phenomenon. Humankind activities are the main
contributor to the increase in the GHGs in the atmosphere and
so the major contributor to global warming. Natural events
such as Milankovitch cycle and volcanic eruptions have too
small and slow inﬂuence on the climate compared with the
human activities inﬂuence.
Water vapor is responsible for two-third of the global warming; however, if the concentration of water vapor is only
increased, the global warming will not happen. Water can evaporate and condense easily to maintain the equilibrium; however,
as the concentration of other greenhouse gases increases specially CO2, the atmospheric temperature increases which
increases the ability of the atmosphere to hold more moisture
causing the equilibrium to happen at higher temperature.
The possible actions toward the global warming are
summed by three strategies: the no action, the mitigation, and
the adaptation strategy. The no action strategy means the continuation of emitting GHGs and so it will have the largest cost
which is the extension of life on earth. While the adaptation is
the development of new techniques that reduces the impact of
global warming and the mitigation is the reduction or even the
prevention of GHGs emissions. The adoption of one strategy
alone will have high cost while the adoption of both mitigation
and adaptation at the same time will have the optimal cost and
will be an effective solution for the global warming.
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9
MARGARET ROSSO GROSSMAN*
Introduction
“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
* Professor Emerita and Bock Chair in Agricultural Law Emerita, University
of Illinois. This Report is based on work supported by the USDA, National Institute
of Food and Agriculture, Hatch Project No. ILLU-470-348.
† http://dx.doi/org/10.1093/ajcl/avy018
1. U.S. Global Change Research Program, Highlights of Climate Change Impacts
in the United States: The Third National Climate Assessment 2 (Jerry M. Melillo et al.
eds., 2014), https://www.globalchange.gov/sites/globalchange/files/NCA3_Highlights_
LowRes-small-FINAL_posting.pdf.
2. Id. (“Many lines of independent evidence demonstrate that the rapid warming of the past half-century is due primarily to human activities.”).
3. 1 U.S. Global Change Research Program (USGCRP), Climate Science Special
Report: Fourth National Climate Assessment 12 (D.J. Wuebbles et al. eds., 2017),
https://science2017.globalchange.gov/downloads/CSSR2017_FullReport.pdf.
4. NASA Press Release No. 17-006, NASA, NOAA Data Show 2016 Warmest
Year on Record Globally (Jan. 18, 2017), https://www.nasa.gov/press-release/
nasa-noaa-data-show-2016-warmest-year-on-record-globally.
5. Am. Meteorological Soc’y, State of the Climate in 2016, 98 B ull . A m .
Meteorological Soc’y Si, S175, S178 (Supp. 2017). See U.S. Gov’t Accountability
Office, GAO-17–720, Climate Change: Information on Potential Economic Effects
Could Help Guide Federal Efforts to Reduce Fiscal Exposure (2017) (recommending
government use of information on economic effects to identify risks and responses to
climate change).
© The Author(s) [2018]. Published by Oxford University Press on behalf of the American
Society of Comparative Law. All rights reserved. For permissions, please
e-mail: journals.permissions@oup.com.
345
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Climate Change and the Individual†
346
T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW
[Vol. 66
6. Significant GHGs include water vapor (H 2 O), carbon dioxide (CO 2 ),
methane (CH 4), nitrous oxide (N 2O), ozone (O 3), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulphur hexafluoride (SF6), as well as other substances.
Although some GHGs occur naturally, human activities p roduce or sequester
additional quantities of these gases and affect atmospheric c oncentrations. U.S.
Envtl. Prot. Agency, EPA 430-P-17-001, Inventory of U.S. Greenhouse Gas Emissions
and S inks 1990–2015, at 1-3 to 1-8 (2017), https://www.epa.gov/sites/production/
files/2017-02/documents/2017_complete_report.pdf.
7. Id. at 1-3.
8. Giovanni Forzieri et al., Increasing Risk over Time of Weather-Related
Hazards to the European Population: A Data-Driven Prognostic Study, 1 Lancet
Planetary Health e200, e200 (2017).
9. Camilo Mora et al., Global Risk of Deadly Heat, 7 Nature Climate Change 501
(2017) (studying “documented lethal heat events”).
10. Forzieri et al., supra note 8, at e200; Susanna Ala-Kurikka, EU Scientists
Warn of Huge Rise in Climate-Related Deaths, ENDSEurope, Aug. 7, 2017. Moreover,
research projects a range of temperature increases by 2100 from 2 to 4.9 o C, with
extremely little chance of meeting Paris Agreement goals. Adrian E. Raftery et al.,
Less than 2 o C Warming by 2100 Unlikely, 7 Nature Climate Change (2017), https://
www.nature.com/articles/nclimate3352.pdf.
11. Danielle E. Medek, Joel Schwartz & Samuel S. Myers, Estimated Effects of
Future Atmospheric CO2 Concentrations on Protein Intake and the Risk of Protein
Deficiency by Country and Region, 125 Envtl. Health Perspectives 087002-1 (2017),
doi:10.1289/EHP41.
12. For U.S. laws, see Michal Nachmany et al., The GLOBE Climate Legislation
Study 606–17 (4th ed. 2014), http://www.lse.ac.uk/GranthamInstitute/wp-content/
uploads/2014/03/Globe2014.pdf; Climate Change Laws of the World, Grantham Inst.,
http://www.lse.ac.uk/GranthamInstitute/climate-change-laws-of-the-world/ (last visited Apr. 11, 2018).
13. Exec. Office of the President, The President’s Climate Action Plan (2013),
https://obamawhitehouse.archives.gov/sites/default/files/image/president27sclimateactionplan.pdf (focusing on reduced carbon emissions, preparation for effects of climate change, and leadership of international efforts).
Downloaded from https://academic.oup.com/ajcl/article/66/suppl_1/345/5035883 by guest on 03 March 2022
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
2018]
C L I M AT E C H A N G E A N D T H E I N D I V I D UA L
347
14. See Michael Mehling, A New Direction for US Climate Policy, 11 Carbon &
Climate L. Rev. 3 (2017); Avi Zevin, United States, 11 Carbon & Climate L. Rev. 162
(2017).
15. Exec. Order No. 13,783, Promoting Energy Independence and Economic
Growth, 82 Fed. Reg. 16,093 (Mar. 31, 2017).
16. Projected Effect of Trump Administration Policy Changes on US Emissions,
C limate A ction T racker , http://climateactiontracker.org/countries/usa.html (last
updated Nov. 6, 2017). Regulatory changes to weaken climate policies will require
notice and comment rulemaking.
17. U.N. Framework Convention on Climate Change Draft Dec. 1/CP.17, Adoption
of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) (entered
into force Nov. 4, 2016); U.N. Framework Convention on Climate Change Dec. 1/
CP.21, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29,
2016). The Paris Agreement includes nationally determined contributions, that is,
voluntary pledges to mitigate GHG emissions. It does not establish enforceable GHG
limits or causes of action.
18. Letter from Nikki Haley, U.S. Ambassador, to António Guterres, U.N.
Secretary General (Aug. 4, 2017), https://treaties.un.org/doc/Publication/CN/2017/
CN.464.2017-Eng.pdf. The United States is eligible to withdraw on November 4,
2019, three years after the Agreement entered into force. The United States will continue to provide GHG emissions data to the U.N., as required by the U.N. Framework
Convention on Climate Change, U.N. Doc. A/AC.237/18 (Part II)/Add.1 (May 15, 1992).
19. Projected Effect of Trump Administration Policy Changes on US Emissions,
supra note 16 (rating U.S. climate change efforts as critically insufficient). U.S. ratification in September 2016 promised a reduction of net GHG emissions by 2025 to
26–28% below 2005 levels, a commitment “at the least ambitious end of what would
be a fair contribution.” Id.
20. U.S. May Meet Emission Goals—Top U.N. Official, EENews Greenwire (July 3,
2017), https://www.eenews.net/greenwire/2017/07/03/stories/1060056898.
21. See Leah A. Dundon, Climate Science for Lawyers, 31 Nat. Res. & Env’t 20, 23
(Spring 2017).
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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
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I. Climate Change Causes of Action: A Brief Overview
Climate change litigation, defined broadly, is “any piece of federal, state, tribal, or local administrative or judicial litigation in
which the party filings or tribunal decisions directly and expressly
raise an issue of fact or law regarding the substance or policy of
climate change causes and impacts.” 25 An empirical study identified 201 U.S. agency proceedings and court cases involving climate
change up to 2010.26 Two types of issues were predominant: government agency responsibility to restrict GHG emission by rule or
permit and government compliance with statutory requirements
for environmental impact assessment in decisions to approve GHG
sources. 27 Most climate change litigation asked courts to decide
22. David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in
the Courts: A New Jurisprudence or Business as Usual?, 64 Fla. L. Rev. 15, 21 (2012).
23. Mary Christina Wood & Charles W. Woodward IV, Atmospheric Trust
Litigation and the Constitutional Right to a Healthy Climate System: Judicial
Recognition at Last, 6 Wash. J. Envtl. L. & Pol’y 634, 643 (2016).
24. Jim Rubin & Derek Furstenwerth, Trump Seeks to Uproot the Obama Climate
Change Agenda, but Can He Succeed?, 48 Trends, no. 6, July/Aug. 2017, at 2, 4.
25. Markell & Ruhl, supra note 22, at 27.
26. Id. at 15.
27. Id. at 25.
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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 or adaptation to its effects. It does not focus
on legal persons, such as corporations and other legal entities. Of
the hundreds of climate change cases filed in the United States, only
a small number involve individual plaintiffs. Other cases involve
environmental organizations that sue on behalf of their members,
demanding mitigation or adaptation and sometimes damages for
injury. To provide background, this Report first reviews possible
causes of action to remedy climate change. It raises a number of difficult issues faced by plaintiffs in climate change litigation. The Report
then reviews a number of cases brought by individual plaintiffs and
environmental organizations against public and private actors.
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A. Regulatory Litigation
A significant number of U.S. climate change cases are based
on federal statutes and regulations, and many seek judicial review
of administrative decisions. Both industry and environmentalists have sued. Industry cases often challenge government regulatory environmental standards. Suits by environmentalists often
seek more stringent regulation for mitigation or adaptation. Under
the Clean Air Act, for example, environmentalist suits include petitions to require agency rulemaking or other climate-related action
and various challenges to administrative actions such as the granting of permits. Other cases challenge agency decisions under the
National Environmental Policy Act31 and other federal laws for failure to consider GHG emissions and the impact of climate change.
Some of these climate change lawsuits have led to stricter regulation—for example, EPA regulation of greenhouse gas emissions after
Massachusetts v. EPA.32
State law claims, too, challenge administrative decisions, with
environmental plaintiffs often seeking stronger regulation or challenging permits. Even more state law cases allege inadequate consideration of GHG emissions and climate change under state
environmental impact laws. Cases that challenge inadequate adaptation measures sometimes rely on statutory and regulatory requirements or, in local cases, on local government ordinances.
28. Id.
29. U.S. Climate Change Litigation, Sabin Ctr. for Climate Change Law, http://
climatecasechart.com/us-climate-change-litigation/ (updated monthly; numbers from
Apr. 11, 2018) [hereinafter Sabin Center Database]. This general summary of climate
change cases is guided by the Sabin Center Database.
30. Id. Cases are listed by category, with some reported in more than one
category.
31. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370f.
32. 549 U.S. 497 (2007), discussed infra Part II.A.
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“whether and how administrative agencies must take climate change
into account in decisionmaking under existing statutes.”28
The “wave of litigation” continued, and by April 2018, a database
of U.S. climate change litigation listed 857 “cases,” broadly defined.29
This database, linking to more than 3,094 documents, collects a wide
variety of court cases, administrative actions, petitions for rulemaking, and other matters related to climate change. In some of the court
cases in the database, climate change is not the main focus of the
litigation. Claims represented in these cases arose under federal and
state statutes, the Constitution, common law, public trust, securities
and financial regulation, and trade agreements; a few cases involved
climate change protesters and scientists.30
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B. Common Law
33. See generally Emily Hammond & David L. Markell, Civil Remedies, in
Global Climate Change and U.S. Law 239 (Michael B. Gerrard & Jody Freeman eds.,
2014) (summarizing possible causes of action and obstacles to success).
34. See David Weisbach, Negligence, Strict Liability, and Responsibility for Climate
Change, 97 Iowa L. Rev. 521, 521–27 (2012). Weisbach considered strict liability in the
context of past GHG emissions; complex issues include determining sources of emissions in the face of inconsistent data and assigning responsibility for harmful effects.
35. See Hammond & Markell, supra note 33 (focusing on nuisance and public
trust).
36. Restatement (Second) of Torts § 821B (Am. Law Inst. 1979). A private nuisance is “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Id. § 821D.
37. 564 U.S. 410 (2011).
38. Id. at 424.
39. See Maxine Burkett, Litigating Climate Change Adaptation: Theory, Practice,
and Corrective (Climate) Justice, 42 Envtl. L. Rep. 11,144, 11,144 (2012) (noting
courts’ “skepticism and fatigue with complex climate litigation”).
40. Id. at 11,149.
41. Id. at 11,150. See, e.g., Wohl v. City of New York, 45 Misc. 3d 1217(A), 2014
WL 6092059 (N.Y. Sup. Ct. Oct. 22, 2014) (finding proximate cause was extreme precipitation, not the city’s negligence in maintaining sewer lines).
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Although climate change litigation based on various federal and
state statutes has predominated, a few plaintiffs have brought common law causes of action, albeit with little success.33 Most are tort
claims for damages, and scholars have expressed views on the most
effective causes of action in climate change lawsuits. Nuisance and
negligence offer some possibility for success, with trespass and civil
conspiracy considered less helpful. Strict liability is another possible
remedy,34 and some cases rely on public trust.
Nuisance law, with its focus on unreasonable injury, may be
effective for some climate change claims.35 Public nuisance lawsuits are appropriate to abate “an unreasonable interference with a
right common to the general public.”36 American Electric Power, Co.
v. Connecticut,37 however, limited federal common law public nuisance claims in areas governed by statute, holding that “the Clean
Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from
fossil-fuel fired power plants.”38 Common law nuisance claims based
on state common law may continue to be viable.39
Relatively few plaintiffs have sued in negligence, but some
commentators see negligence as the most appropriate tort cause of
action.40 Typical requirements for a prima facie case in negligence—
duty, breach of duty, proximate cause, and damages—raise significant challenges in cases against GHG emitters, especially in proving
that emissions breached a duty to plaintiffs and that defendant’s
emissions caused plaintiff ’s injury. Negligence may be more successful in adaptation cases against local governments or property developers, but proving that the defendant’s alleged negligence, rather
than an extreme precipitation event, was proximate cause of plaintiff’s harm may be difficult.41
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Despite the existence of some climate change tort cases, tort
law may not be an effective means to mitigate or adapt to climate
change. As one influential scholar insisted, “climate change ill fits
the existing tort paradigm.”42 Specifically, this scholar explained:
Others agree that tort law is intended to solve private and local disputes, rather than big societal problems:
Climate change and other so-called “collective action” problems simply cannot be addressed through the common-law
tort system. That system was developed to address essentially private disputes, involving lines of fault and causation running directly between discrete parties. It was never
intended, and cannot reasonably be applied, to allow a judge
or jury to assess and allocate liability for any and all societal concerns.44
Legislatures, instead of courts, have “the authority and the capacity
to consider and develop responses to [climate change], and only after
a regulatory architecture has been established can judges and juries
properly (and constitutionally) play a role.”45
C. Public Trust
Beginning around 2011, plaintiffs have filed a number of cases
relying, at least in part, on the public trust doctrine.46 Some are part
of a global campaign, the Atmospheric Trust Litigation, connected
with a nonprofit, Our Children’s Trust.47 Public trust, with roots in
42. Douglas A. Kysar, What Climate Change Can Do About Tort Law, 42 Envtl.
L. Rep. News & Analysis 10,739, 10,740 (2012) (suggesting that climate change could
trigger an alteration of tort law).
43. Id. at 10,739.
44. David T. Buente Jr., Quin M. Sorenson & Clayton G. Northouse, A Response
to What Climate Change Can Do About Tort Law, 42 Envtl. L. Rep. News & Analysis
10,749, 10,751 (2012).
45. Id. But see Andrew Gage & Margaretha Wewerinke-Singh, Taking Climate
Justice into Our Own Hands: A Model Climate Compensation Act (2015), https://ssrn.
com/abstract=2906252 (proposing a Model Climate Compensation Act, based on common law principles and intended to facilitate climate change lawsuits in state courts).
46. These cases are collected at Sabin Center Database, supra note 29. Lawsuits
or petitions for rulemaking have been filed in all fifty states.
47. See Our Children’s Trust, https://www.ourchildrenstrust.org/ (last visited Feb.
19, 2018). Our Children’s Trust and related organizations have filed lawsuits and
petitions for administrative rulemaking.
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Diffuse and disparate in origin, lagged and latticed in effect,
anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive
and so complicated as to render at once both all of us and
none of us responsible. Thus, courts will have ample reason—not to mention doctrinal weaponry—to prevent climate
change tort suits from reaching a jury.43
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II. Significant Issues in Climate Change Litigation
Courts, in general, accept the science of climate change 55 and
conclusions from the Intergovernmental Panel on Climate Change
and others that anthropogenic emissions of GHGs are a major cause
48. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, 68 Mich. L. Rev. 471, 484 (1970). A leading case is Illinois Cent.
R.R., Co. v. Illinois, 146 U.S. 387 (1892).
49. Wood & Woodward, supra note 23, at 650–53.
50. E.g., Foster v. Wash. Dep’t of Ecology, No. 14-2-25295-1 SEA (Wash. Super. Ct.
June 23, 2015), discussed in Wood & Woodward, supra note 23.
51. Robin Kundis Craig, Climate Change, State Public Trust Doctrines, and PPL
Montana 8–10 (Univ. of Utah Coll. of Law, Research Paper No. 57, 2014), https://ssrn.
com/abstract=2380754.
52. Id. at 9.
53. E.g., Donald G. Gifford, Climate Change and the Public Law Model of Torts:
Reinvigorating Judicial Restraint Doctrines, 62 S.C. L. R ev. 201, 240–57 (2010)
(focusing on tort lawsuits).
54. Id. at 255.
55. Michael Gerrard, Court Rulings Accept Climate Science, 250 N.Y.L.J., Sept.
12, 2013.
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Roman and English law, requires governments to protect certain natural resources, “the gifts of nature’s bounty,” for present and future
generations.48 Although the precise source of public trust in U.S. law
is hard to identify, the doctrine is an ancient attribute of federal and
state sovereignty with constitutional force.49
Plaintiffs (primarily young people) in recent public trust litigation insist that the government owes a fiduciary obligation to
its citizen beneficiaries to protect public trust assets, including the
atmosphere and water bodies affected by GHG emissions. State public trust law is evolving and may help to address climate change.
A few courts have recognized the atmosphere as a public trust asset,
and a few decisions have resulted in a court-ordered state GHG
rulemaking.50 Sixteen states have ecological public trusts; five have
indicated that their doctrines are evolutionary, responding to changing environmental circumstances; and two have explicitly extended
public trust to the atmosphere.51 It is possible, therefore, that adaptation to climate change could “become an official state duty, geared
to protecting as much of the public interest in and rights to natural resources and ecosystems as possible in light of climate change
impacts.”52
Some scholars urge the use of judicial restraint to limit climate
change litigation, relying perhaps on standing and the political question doctrine.53 Climate change, it is argued, is “a massive global and
undifferentiated problem is one that must be addressed by the political branches of government—Congress and the EPA—and ultimately
by international bodies.”54 Nonetheless, litigants have turned to the
courts for relief from harm caused by GHG emissions.
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of climate change.56 The majority opinion in Massachusetts v. EPA,
decided in 2007, illustrates:
Despite judicial acceptance of the science, climate change litigation raises a number of issues. Some arise in nearly all climate
change litigation; others apply to specific types of lawsuits, depending on the cause of action and the parties. The following discussion
focuses on major issues common to cases brought to mitigate or abate
the effects of climate change. It does not attempt to identify every
possible defense or obstacle facing plaintiffs in climate change cases.58
A. Standing
Under Article III of the U.S. Constitution, 59 which limits federal judicial authority to cases and controversies, plaintiffs who sue
in federal court must have standing to sue; state courts also require
standing. The doctrine of standing helps to ensure that the plaintiff has a personal stake in the controversy and that issues will be
resolved in a “proper adversarial presentation.”60
The U.S. Supreme Court articulated the elements of standing in
an environmental law decision:
[T]o satisfy Article III’s standing requirements, a plaintiff
must show (1) it has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.61
56. Maria L. Banda & Scott Fulton, Litigating Climate Change in National
Courts: Recent Trends and Developments in Global Climate Law, 47 Envtl. L. Rep.
News & Analysis 10,121, 10,130 (2017).
57. Massachusetts v. EPA, 549 U.S. 497, 504–05 (2007).
58. For a lengthy list of tactical questions and issues in climate change litigation,
even when standing, political question, and displacement do not bar a lawsuit, see
Michael B. Gerrard, What Litigation of a Climate Nuisance Suit Might Look Like, 121
Yale L.J. Online 135 (2011).
59. U.S. Const. art. III, § 2.
60. Massachusetts, 549 U.S. at 517.
61. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. 167,
180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
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A well-documented rise in global temperatures has coincided with a significant increase in the concentration of
carbon dioxide in the atmosphere. Respected scientists
believe the two trends are related. For when carbon dioxide
is released into the atmosphere, it acts like the ceiling of a
greenhouse, trapping solar energy and retarding the escape
of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”57
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62. Id. at 181.
63. Massachusetts, 549 U.S. at 518.
64. Lujan, 504 U.S. at 561. As one scholar noted, these elements are ill-defined,
leaving room for judges to decide, for example, what is an injury, whether that injury
is “fairly traceable” to the defendant’s behavior, and whether the remedy plaintiff
seeks is constitutionally adequate. Daniel A. Farber, Standing on Hot Air: American
Electric Power and the Bankruptcy of Standing Doctrine, 121 Yale L.J. Online 121,
122 (2011) (referring to the “unpredictability and ideological nature of standing”).
65. Friends of the Earth, 528 U.S. at 181.
66. Lujan, 504 U.S. at 560 n.1.
67. See Gifford, supra note 53, at 243, 244 (citing Thomas W. Merrill, Global
Warming as a Public Nuisance, 30 Colum. J. Envtl. L. 293 (2005)).
68. Barry Kellman, Standing to Challenge Climate Change Decisions, 46 Envtl.
L. Rep. News & Analysis 10,116, 10,117 (2016).
69. Massachusetts, 549 U.S. at 522, cited by Benjamin Ewing & Douglas A. Kysar,
Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J.
352, 389 (2011).
70. Ewing & Kysar, supra note 69, at 392.
71. Connecticut v. Am. Elec. Power, Co., 582 F. 3d 309, 346 (2d Cir. 2009), rev’d on
other grounds, 564 U.S. 410 (2011).
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The injury required for standing is injury to the plaintiff, rather
than to the environment.62 Only one plaintiff must have standing to
invoke the jurisdiction of the court,63 and the plaintiff bears the burden of establishing the elements of standing.64
Nongovernmental and other organizations often bring climate
change lawsuits on behalf of their members. These associations,
the Supreme Court noted, have standing if “members would otherwise have standing to sue in their own right, the interests at stake
are germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”65
The plaintiff ’s injury in fact must be particularized and imminent. The Supreme Court noted that “[b]y particularized, we mean
that the injury must affect the plaintiff in a personal and individual
way.”66 Some scholars have noted that plaintiffs must allege harms
that are more than “generalized grievances shared by all citizens.”67
On a global scale, however, climate change “defies any notion of particularized injury.”68 The fact that harms from climate change are
widespread may lead courts to conclude that those harms are generalized grievances, but in a leading standing decision, Massachusetts
v. EPA, the Supreme Court indicated that widely shared risks do not
minimize the plaintiff ’s interest in the outcome of litigation.69
The plaintiff ’s injury must be “fairly traceable” to defendant’s
action. That is, the plaintiff must identify a causal connection
between defendant’s behavior and injury caused by climate change.
Given the nature of GHGs, plaintiffs are unlikely to identify a direct
causal connection to a source of emissions.70 As the U.S. Court of
Appeals for the Second Circuit indicated, the analysis of traceability in climate change cases might use “the standard by which a public nuisance action imposes liability on contributors to an indivisible
harm,”71 a standard short of scientific certainty or proof of proximate
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72. Ewing & Kysar, supra note 69, at 393.
73. Id. at 394.
74. Massachusetts, 549 U.S. at 525.
75. 42 U.S.C. §§ 4321–4370f.
76. Id. §§ 1531–1544.
77. Id. §§ 7401–7671q.
78. Kellman, supra note 68, at 10,118 (identifying and analyzing two types of
cases).
79. 42 U.S.C. § 4332(C) (requiring an environmental impact statement for “major
federal actions significantly affecting the quality of the human environment”).
80. E.g., Ctr. for Biological Diversity v. Dep’t of Interior, 563 F.3d 466, 478 (D.C.
Cir. 2009) (challenging the agency’s failure to consider climate change in oil and gas
leasing decision), cited by Kellman, supra note 68, at 10,118.
81. 738 F.3d 298 (D.C. Cir. 2013) (challenging the Bureau of Land Management
(BLM)’s failure to consider climate change in a decision to lease federal land for coal
mining).
82. Kellman, supra note 68, at 10,118.
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cause, thus allowing “a substantial likelihood of causal contribution
[to satisfy] the test of traceability” for standing.72
Redressability can also pose difficulties for plaintiffs: “If redressability requires successful elimination of the entire climate change
problem, then no plausible suit could ever clear the standing hurdle.”73 Focus on redressing the harm suffered by the plaintiff makes
satisfying this element more likely. As the Supreme Court noted in
Massachusetts, climate change has enormous consequences; the
plaintiff must allege that the requested remedy would slow or reduce
global warming, but not that a favorable decision can relieve every
injury.74
Two types of climate change cases illustrate issues of standing. One involves a challenge to government failure to consider the
impacts of climate change in making decisions under the National
Environmental Policy Act (NEPA),75 the Endangered Species Act
(ESA),76 or other statutes. The other involves claims that the Clean
Air Act77 or other statutes require the government to take more regulatory action to mitigate climate change.78
Some federal statutes, most prominently the NEPA, 79 require
the government to assess the environmental impacts of certain
actions that affect the environment. Some courts denied standing
to petitioners who challenged government failure to consider climate change in environmental assessments, in part because the
effects of a proposed project were remote, rather than actual and
imminent, and because their alleged harm (increased global temperature) was not particularized. 80 More recently, in WildEarth
Guardians v. Jewell,81 the D.C. Circuit granted standing to plaintiffs who established “that consideration of climate change would
have impacted the decision that allegedly harms them, even if the
harm is not itself related to climate change.”82 Plaintiffs’ aesthetic
and recreational interests supported standing, and their challenge
to the failure to consider climate change could be litigated along
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83. Id. at 10,118–19 (citing additional decisions).
84. Bruce Myers, John Broderick & Shannon Smyth, Charting an Uncertain
Legal Climate: Article III Standing in Lawsuits to Combat Climate Change, 45 Envtl.
L. Rep. News & Analysis 10,509, 10,509 (2015) (providing a chart of cases with results
of challenges to standing and indicating that a majority of plaintiffs are NGOs).
85. 549 U.S. 497 (2007).
86. Id. at 505.
87. Id. at 522–26.
88. Jonathan H. Adler, Warming up to Climate Change Litigation, 93 Va. L. Rev.
in Brief 63, 66 (2007).
89. Kellman, supra note 68, at 10,120.
90. Id. at 10,118. See also Myers, Broderick & Smyth, supra note 84, at 10,509.
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with other issues in the case.83 Indeed when plaintiffs allege that
their procedural rights are violated (e.g., failure to consider climate change in a decision that results in harm to environmental
interests), they may “tend to fare better when they can articulate
an underlying injury for standing purposes that is not itself climate
based.”84
Standing is relevant when a plaintiff challenges the government’s
failure to regulate GHG emissions under federal pollution control
statutes. Standing was a threshold issue in Massachusetts v. EPA.85
States, local governments, and private organizations alleged that
the U.S. Environmental Protection Agency (EPA) had “abdicated its
responsibility under the Clean Air Act (CAA) to regulate the emissions of four greenhouse gases, including carbon dioxide” from new
motor vehicles.86 Petitioners asked the Supreme Court to determine
whether the EPA had statutory authority to regulate GHG emissions
and whether the EPA’s reasons for failing to regulate were consistent with the CAA. In its standing determination, the Court recognized that GHG emissions caused widespread harm, but held that the
state of Massachusetts satisfied the constitutional requirements for
standing. Massachusetts, as landowner and parens patriae for its citizens, faced injury from the risk of rising sea levels that could swallow coastal land. In terms of causation, carbon dioxide emissions from
motor vehicles contributed significantly to GHG concentrations. The
regulation of those carbon dioxide emissions would help to redress
the injury suffered by Massachusetts and its citizens.87
The Supreme Court decision in Massachusetts was solicitous of
states as plaintiffs, but some argue that the decision “weakened the
traditional requirements for Article III standing,”88 especially causation and redressability. As one scholar suggested, private plaintiffs
could cite the Court’s reasoning to support standing in similar cases
involving injury from rising sea levels due to climate change, but
subsequent cases have been “confusing” on standing.89 Nonetheless,
standing decisions are difficult (and “often logically suspect”) in cases
where the claim is that “a government action or inaction permits or
leaves unregulated some activity” that contributes to climate change
and its harm.90
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B. The Political Question Doctrine
91. James R. May, AEP v. Connecticut and the Future of the Political Question
Doctrine, 121 Yale L.J. Online 127, 127 (2011). For a detailed analysis of the political
question doctrine in the context of climate change, see Ewing & Kysar, supra note 69,
at 380–86.
92. Kevin A. Gaynor, Benjamin S. Lippard & Margaret E. Peloso, Challenges
Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims, 40 Envtl.
L. Rep. News & Analysis 10,845, 10,847 (2010).
93. The Court described the attributes of a political question:
[A] textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. 186, 217 (1962) (challenge to legislative reapportionment in Tennessee).
94. Connecticut v. Am. Elec. Power, Co., 582 F. 3d 309, 321 (2d Cir. 2009). See also
Native Village of Kivalina v. ExxonMobil Corp. 663 F. Supp. 2d 863 (N.D. Cal. 2009);
696 F.3d 849 (9th Cir. 2012) (affirming on displacement grounds), cert. denied, 133
S. Ct. 2390 (2013).
95. 406 F. Supp. 2d 265, 271 n.6, 272 (S.D.N.Y. 2005).
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The political question doctrine is, in a sense, a separation of powers issue, which applies in a federal law context. That is, it holds that
certain types of issues are “committed to an elected branch of government and thus should not be heard in federal court.”91 The political question doctrine might be considered an aspect of prudential
standing, beyond the requirements for Article III standing, that can
“ensure respect for the separation of powers.”92
In Baker v. Carr, a leading political question decision, the Supreme
Court articulated six attributes of a nonjusticiable political question and indicated that only if one of those attributes is “inextricable”
from the dispute should the court dismiss the case as a political question.93 The Court indicated that cases that involve political actions or
issues are not normally nonjusticiable political questions. Indeed, few
Supreme Court cases have been found to present political questions.94
In the climate change context, the political question doctrine was
analyzed in trial and appellate decisions in Connecticut v. American
Electric Power, a case involving federal common law nuisance claims
seeking abatement of carbon dioxide emissions from electric power
corporations. The federal district court in New York noted that climate change was “patently political” and “transcendently legislative.”
It focused especially on a Baker v. Carr attribute, “the impossibility
of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion,” and determined that it needed a legislative policy determination before it could decide the global warming
complaints. The district court therefore dismissed the case as raising nonjusticiable political questions.95 On appeal, the Second Circuit
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[Vol. 66
C. Displacement
The doctrine of displacement, a separation of powers issue
between the judicial and legislative branches,101 has prevented the
resolution of some prominent climate change cases based on federal common law. A leading displacement decision is American
Electric Power, Co. v. Connecticut (AEP),102 a federal common law
public nuisance claim for injunctive relief, alleging that GHG emissions from power companies contributed to global warming. Federal
96. Connecticut, 582 F.3d at 321–32. The court indicated that because Congress
can displace common law standards, there is “no need for the protections of the political question doctrine.” Id. at 332. The court held that plaintiffs had standing. See
also Comer v. Murphy Oil USA, discussed infra text accompanying notes 211–13.
97. Am. Elec. Power, Co. v. Connecticut, 564 U.S. 410, 424 (2011). See infra
Part II.C for a discussion of displacement.
98. Juliana v. United States, 217 F. Supp. 3d 1224, 1235–42 (D. Or. 2016).
99. E.g., Gifford, supra note 53, at 240–57.
100. E.g., May, supra note 91, at 132–33 (quotation at 133). See also Ewing &
Kysar, supra note 69, at 387.
101. See generally John Wood, Easier Said than Done: Displacing Public Nuisance
When States Sue for Climate Change Damages, 41 Envtl. L. Rep. News & Analysis
10,316 (2011); Hari M. Osofsky, AEP v. Connecticut’s Implications for the Future of
Climate Change Litigation, 121 Yale L.J. Online 101 (2011).
102. AEP, 564 U.S. The Court was evenly decided on the issue of standing, so
affirmed the Second Circuit’s exercise of jurisdiction. Id. at 420. Plaintiffs sought an
injunction requiring defendants to cap and then reduce CO2 emissions.
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applied the Baker v. Carr factors, analyzing each factor in detail,
and concluding that none of the factors applied. The dispute was
not inherently political, and the court could hear a public nuisance
suit. Therefore, the Second Circuit reversed.96 The Supreme Court
granted certiorari, but did not reach the political question issue.
Instead, the Court held that the Clean Air Act, which authorizes the
EPA to regulate carbon dioxide emissions, displaced plaintiffs’ federal common law nuisance claims.97
In a more recent case alleging violation of constitutional and
public trust rights, a federal district court analyzed plaintiffs’ claims
in light of the six criteria in Baker v. Carr. The court concluded that
the case did not raise a nonjusticiable political question, but involved
a determination of whether plaintiffs’ constitutional rights had been
violated. The court acknowledged, however, that if plaintiffs prevail,
a remedy would have to be crafted carefully to avoid separation of
powers issues.98
Some scholars urge the use of judicial restraint, using standing and the political question doctrine, to dismiss tort litigation in
the context of climate change.99 But the political question doctrine
does not apply often, and others believe that it was not intended to
apply to nonconstitutional issues or, if it applies, should not preclude
review of common law claims. That is, “courts should not hide from
these issues behind the veil of the political question doctrine.”100
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359
103. 549 U.S. 497 (2007).
104. Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Envtl. Prot. Agency
Dec. 15, 2009).
105. AEP, 564 U.S. at 424.
106. Id. (citations omitted).
107. Id. at 426.
108. 696 F. 3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013).
109. Id. at 857.
110. Id. (citing Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453
U.S. 1 (1981)).
111. AEP, 564 U.S. at 429 (noting that the parties had not briefed the issues of
state common law or preemption).
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common law applies only when Congress had not regulated, and
Massachusetts v. EPA103 had held that the CAA authorized federal
regulation of GHG emissions. The EPA had issued its “endangerment” finding104 and had begun the regulatory process. Therefore, the
Court held “that the Clean Air Act and the EPA actions it authorizes
displace any federal common law right to seek abatement of carbondioxide emissions from fossil-fuel fired power plants.”105 The test for
displacement of federal common law is “whether the statute ‘speak[s]
directly to [the] question’ at issue.”106 Congressional delegation of
authority to the EPA to regulate (or not to regulate) emissions displaced federal common law, even before the EPA promulgated regulations. The court stated clearly, however, that “EPA’s judgment . . .
would not escape judicial review” through administrative law challenges in the federal courts.107
Although plainti…

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