6 Pages Posted: 10 May 2022
Date Written: May 9, 2022
Climate change is inevitable. Devastating climate change is not, if we act in time. Potentially catastrophic but manageable challenges such as climate change compel legal responses. It is axiomatic that law evolves in response to change, including ecological change and this is the pattern of legal development that we have witnessed in the climate context. As our understanding of climate change has grown, so too has the body of climate law. As the pace of climate change accelerates, we similarly expect this change to be accompanied by an acceleration in the development of legal responses. Yet, even as we approach a period of legal acceleration, political and legal forces continue to push in the opposite direction. This Article takes up these two competing trends: the steady development of climate-related legal and political measures versus countermoves designed to undercut the emerging rule of law around climate change. The Article suggests that, despite the lack of climate-specific legislation, there is a growing body of law that advances efforts to limit climate change and limits the ability of political actors (here, including the Supreme Court) to undercut legal progress. It proceeds by very briefly introducing how climate laws and policies have been steadily building up over time. Next, this Article turns to recent developments – namely the Green New Deal and the Infrastructure Act– that demonstrate how climate-related law-making is accelerating. Finally, this Article turns to the decision by the Court to hear the West Virginia v. EPA case and suggests that the decision to hear and decide this case is out-of-step with the trajectory of legal development in the United States.
Keywords: climate change law, West Virginia v. EPA, Green New Deal, Infrastructure Act, The Supreme Court
JEL Classification: K32
Suggested Citation: Suggested Citation