Regulation or Litigation: Using the American Legal System to Address Climate Change
While a growing scientific consensus recognizes that anthropogenic greenhouse gas emissions are contributing to the global phenomenon known as climate change, little progress has been made to pass comprehensive legislation addressing climate change. Many concerned with the effects of climate change have turned to the American court system as a means of addressing climate change or reducing greenhouse gases. Similar to the early litigation history of many environmental cases, climate change litigation has thus far been unsuccessful in holding major greenhouse gas emitters liable for the impacts of climate change. Plaintiffs have not given up, however. Many climate change cases are still pending. While there are several legal hurdles to overcome, the court system may provide an avenue to comprehensive climate change legislation in the United States. In order to better predict the future of climate change in the legal system, it is instructive to look to past environmental and public health litigation and regulation. This paper looks to the histories of two other environmental health agents, asbestos and sulfur dioxide, to identify similarities between these substances and greenhouse gas emissions. An examination of each substance’s scientific and regulatory history suggests what obstacles climate change plaintiffs may expect, including: the political question doctrine, standing, and causation. A comparison with asbestos and sulfur dioxide suggests possible ways of overcoming these hurdles and reaching comprehensive climate change regulation in the United States. The histories of asbestos and sulfur dioxide suggest that litigation and comprehensive federal legislation are both necessary to effectively reduce greenhouse gas emissions.
asbestos, CAA, Clean Air Act, climate change, common law, GHG, greenhouse gas, nuisance, regulation, substantial factor test, sulfur dioxide
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