Revue Européenne du Droit
Addressing Climate Change from the Bottom-Up in a Kaleidoscopic World
Issue #2
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Issue #2

Authors

Edith Brown Weiss , Vicki Arroyo

21x29,7cm - 186 pages Issue #2, Spring 2021 12,90€

We live in the new geological epoch of the Anthropocene, in which humans are the dominant force in nature. The problems we now face inherently affect the well-being of future generations. Climate change is the archetypal such problem 1 . Preventing disastrous climate change requires managing a global public good – the stability of the Earth’s climate system – in the interest of ourselves and of future generations. We must address climate change in the context of a kaleidoscopic world, which is characterized by rapid change in our environment, in technology, in power structure, and in players. Issues emerge quickly, and interests and constituencies change quickly 2 .

Many actors beyond States are now critical players in this more fluid and chaotic world. These other actors include subnational units of governments, cities, private sector businesses, nongovernmental organizations, ad hoc coalitions, informal movements, and even individuals. While international agreements and national legislation remain essential, they are insufficient. Nonbinding legal instruments and individualized, voluntary commitments at all levels are significant and growing in number. The world is at the same time becoming more localized and globalized. Engagement in climate action is both bottom-up and top-down.

The kaleidoscopic world reflects the revolution in information and communications technologies, which enable people to communicate, network, and collaborate across the world. Facebook, Tumblr, YouTube, Twitter and their analogs in various countries have emerged on an unprecedented scale. In spring 2019, Twitter reported 330 million monthly users, with governments, heads of States or foreign ministers of 187 States having 951 Twitter accounts. Mobile phone technology has spread more rapidly than any other technology in history. More than 5.1 billion people are using mobile phones in 2019, letting them communicate instantaneously across many geographical scales. These technologies enable participation in discourse from the bottom-up by organizations, informal coalitions, movements and individuals, at all scales, whether local, regional, national, or international.

1. The Urgency in Addressing Climate Change

In the Paris Agreement, States express the goal to limit the Earth’s temperature rise to 1.5° C and the necessity not to exceed 2°C over pre-industrial levels. Already evidence indicates that the Earth’s temperature is on a path to increase well beyond this. Studies released during the 2019 United Nations (U.N.) Climate Action Summit show that emissions associated with States’ current nationally determined contributions (“NDCs”) will lead to an increase in temperature of between 2.9 to 3.4 °C by 2100 3 .

Scientists fear that rising greenhouse gas (“GHG”) concentrations and resulting temperature increases will cross important thresholds and disrupt the stability of our planet Earth’s systems, with disastrous consequences. Scenarios once viewed as “worst case” are becoming increasingly plausible. The IPCC’s 2019 Special Report on the Ocean and Cryosphere found that rising carbon dioxide absorption has made oceans more acidic and less productive. Rising temperatures melt glaciers and ice sheets, contributing to an alarming rate of sea-level rise 4 . Extreme weather is on the rise around the world, as evidenced by unprecedented fires, mega-storms, and floods. Data through early October 2019 indicate this year is the fifth year in a row in which the U.S. experienced at least ten disaster events costing over $1 billion each. July 2019 was the hottest month ever recorded for the world as whole. Recent studies reveal that permafrost is thawing, raising concerns of substantial releases of methane. Pulses of this potent gas could lead to crossing certain thresholds, with irreversible and catastrophic impacts.

2. The Need for Bottom-up Approaches

Maintaining a stable climate is a global public good, in which all actors must be engaged. National governments have yet to meet the challenge. Fortunately, subnational governments, cities, the private sector, and individuals are taking measures to reduce emissions, promote low-carbon solutions, and/or pressure governments at all levels to take action. Some are also filing lawsuits against governments and fossil fuel companies. All of these efforts may be viewed as bottom-up initiatives.

Subnational governmental actions in countries with federal systems can be especially useful because authorities at these levels in countries such as the U.S. are responsible for planning, regulating, and funding in key sectors, such as electric utility regulation, transportation planning, land use, building codes, and more. Commitments at these levels can bolster political will, both locally and nationally. Successful mitigation efforts demonstrate proof of concept and can lead to replication in other jurisdictions and catalyze more ambitious and affordable national and international commitments. This is especially important given recent federal rollbacks in climate regulation, both in the U.S. and abroad.

Our major focus is on the U.S., since the combined populations and economies of some of its states are on a par with some large countries, and since some U.S. states have been leading the charge on climate for decades. The U.S. has a federal system of government, with fifty states, each with its own jurisdiction to address issues related climate change. The Constitution provides that “all powers not delegated to the United States under the United States Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In the absence of federal leadership now on climate change, subnational efforts are especially important and show some progress in tackling GHG emissions.

This article describes some of the major state programs, transnational initiatives by states, and programs by cities and local communities, as well as engagement by the private sector, youth movements and others.

3. State/Provincial Level Measures

Significant action at the state and local levels began two decades ago after the U.S. withdrew its signature to the Kyoto Protocol. These developments include California’s leadership in launching an economy-wide cap-and-trade program and in regulating GHG emissions from vehicles and fuels; the bipartisan Regional Greenhouse Gas Initiative (“RGGI”) in the Northeast; Colorado’s Clean Air Clean Jobs Act; and scores of other relevant state policies. These initiatives have shown that action against climate change is not only possible, but that it also brings great benefits through economic opportunity and growth. A majority of U.S. states have adopted bipartisan renewable portfolio standards (“RPS”), which have been widely popular and successful as they promote renewable sources of energy and help bring costs down. Similarly, deployment of electric vehicles has been catalyzed and supported through state incentives, including rebates and policies such as allowing clean fuels and vehicles to drive in lanes generally reserved for high-occupancy vehicles 5 .

 When the Donald Trump announced in June 2017 his intent to withdraw from the Paris Agreement 6 , the Governors of Washington, New York and California took immediate action by forming the U.S. Climate Alliance (“USCA”), with the intent to honor within their jurisdictions the U.S. commitments under the Paris Agreement. As of September 2019, 24 Governors and Puerto Rico had joined the USCA. This bipartisan coalition represents over 55% of the U.S. population and $11.7 trillion of the U.S. $19.3 trillion gross domestic product (“GDP”). If the Alliance were a country, it would be the third largest economy in the world. When the USCA released its annual report in September 2018, it declared that, “[b]ased on climate and clean energy policies already in place across Alliance states, we are projected to have a combined 18–25% reduction in GHG emissions below 2005 levels by 2025” 7 .

Just days after the President’s 2017 announcement regarding the Paris Agreement, a broader coalition of businesses, investors, cities, states, universities and other organizations formed the “We Are Still In” (“WASI”) coalition, pledging a shared commitment to help meet the Paris Agreement goals. WASI now boasts over 2,800 signatories, including 2,203 business leaders and investors, 287 cities and counties, 351 colleges and universities, and 10 states. These leaders represent over 155 million people across all 50 states, totaling almost $10 trillion in GDP 8 .

In addition to launching and expanding coalitions to demonstrate leadership in their own jurisdictions, U.S. states are working together on a bipartisan basis to push back on the current Administration’s rollbacks of clean energy and motor vehicle standards.

Some states have formed regional collaborations to limit emissions. In 2009, RGGI became the first multi-state U.S. cap-and-trade program to reduce carbon dioxide emissions from the power sector. In 2017, the participating states (including many led by Republican governors) agreed on a draft strategy to extend the program through 2030, including a 30% tightening of the emissions cap from 2020 to 2030, which would reduce the region’s power-sector emissions by 65% below 2009 levels 9 .

Regional collaboration is also beginning in the transportation sector. The Transportation and Climate Initiative (TCI), is a collaboration of states from the mid-Atlantic to New England working with the Georgetown Climate Center to design a cap-and-invest program for the transportation sector similar to RGGI. A proposed Memorandum of Understanding is scheduled to be released by the end of 2019 10 .

4. Transnational Initiatives

Another significant development is the emergence of programs that are developed jointly between U.S. states and entities in other countries. These cooperative arrangements involve carbon sequestration (California and Brazil), cap-and-trade programs (California and Quebec), electric vehicle development and deployment (California and China; Vermont and Quebec), and the “Pacific Coast Collaborative” (among states in the United States and western Canadian provinces). These programs are not treaties or other formal international agreements between countries. Rather, they often take the form of voluntary commitments, in which participants agree to cooperate. The bilateral agreements to address acid rain and other pollution problems between the states in the U.S. and Canadian provinces are precedents for this approach. The legal instruments often take the form of a Memorandum of Understanding (“MOU”). These MOUs help determine the flow of information, ideas, and support for mutual low-carbon policy implementation. Under these memoranda, institutions can initiate GHG reduction programs and approaches, which can be replicated or extended to additional jurisdictions. Their approaches might ultimately be adopted nationally or in formal international agreements between the countries.

 Many multilateral transnational programs informally link U.S. states and cities and their counterparts from around the world. For example, 94 cities, representing over 700 million citizens and one fourth of the world’s economy, participate in the C40, which creates a collaborative network for cities to share knowledge “and drive meaningful, measurable and sustainable action on climate change” 11 .

A similar transnational program, the Under2 Coalition, connects governments working towards keeping temperature rises “well below” 1.5 ° C 12 . It includes more than 220 governments, and represents 1.3 billion people and 43% of the world’s economy. Ten states and regions within the group have committed their jurisdictions to reaching net-zero emissions by at least 2050. Members sign the Under2 MOU, committing their state, city, or country to reducing emissions by 80-95% related to 1990 levels, or to two annual metric tons of carbon per capita by 2050.

Multilateral initiatives in the energy sector also exist. For example, the Powering Past Coal Alliance is an active coalition of national governments, subnational governments and private sector bodies, whose goal is to replace coal with clean energy programs. As of September 2019, the Alliance had 91 members, spanning 32 national governments, 25 subnational governments, and 34 businesses and organizations 13 .

These transnational initiatives are elements of the kaleidoscopic world, allowing actors to come together in creative partnerships to implement agreed-upon goals. Their membership may change, as may their programs in response to changes in projected climate scenarios and effects. The initiatives reflect a basic international norm of cooperation in which actors seek to avoid harm by working together and to achieve benefits they could not get on their own.

5. Individual State Programs

21. In the U.S., programs in the individual states offer insights into the breadth of concern with climate change and innovative measures for combatting it. At least eight states, the District of Columbia and Puerto Rico have passed legislation requiring 100% clean or renewable energy. We focus on California, New Jersey, and New York because they have large populations and large economies, and because they are among the current leaders on climate and clean energy.

5.A. California

California has been a leader in climate action for decades, under both Democratic and Republican administrations. It has acted on various fronts to reduce GHG emissions, to promote energy efficiency, and to spur investments in clean energy. Some highlights of California’s multi-faceted programs are described below.

California has a cap-and-trade program covering GHG emissions, which was recently extended to 2030. In 2018, then-Governor Jerry Brown also committed the state to 100% clean electric power by 2045. California policy has spurred huge private and public investments in clean energy. In 2018, the state led the country in solar jobs, with over 76,000 employees 14 , and has tripled its wind-energy capacity in recent years by creating 12 new wind manufacturing facilities—producing $12.6 billion in investments through 2017.

One of the most significant developments is California’s collaboration with other leading states and automakers to reduce vehicle GHG emissions beyond federal standards. In September 2019, however, the Trump Administration released a rule revoking California’s authority to apply stricter vehicle GHG limits which other states might follow. In response, California and other states are suing the federal government to contest its authority to prevent California from adopting stricter standards. California is also partnering with major automakers – Ford, Honda, VW, and BMW – in an agreement stating that they will continue gradually to increase their fuel efficiency standards. Those signing onto the voluntary agreement have until 2026 to produce cars with a minimum 50 mpg. The agreement covers 30% of all new cars and SUVs sold in the United States. Other companies, including GM, Fiat Chrysler, and Toyota, have subsequently released statements supporting the federal government.

In addition to regulating vehicles, California also requires as of September 2018 that fuel producers cut the intensity of their fuels 20% by 2030 as part of their Low Carbon Fuel Standard. In June 2019, California signed a MOU with Canada to cooperate on measures limiting GHG emissions.  The partnership strives to increase the speed by which zero-emissions vehicles will be adopted and promises a transfer of knowledge relating to technical information and best practices 15 .

5.B. New Jersey

In October 2018, New Jersey Governor Philip Murphy released a roadmap to get 100% of its energy from renewable sources by 2050, and 50% by 2030 16 . In July 2019, he signed the Updated Global Warming Response Act into law, which set new carbon emissions mandates – 80% below 2006 levels by 2050 – and requires specific measures to reach this goal. New Jersey is also working on increasing renewable energy, especially wind. Executive Orders require that the state develop 3,500 megawatts of offshore wind power by 2030, direct the Board of Public Utilities and the Department of Environmental Protection to develop an Offshore Wind Strategic Plan, and create the Wind Innovation and New Development Institute to serve as a regional hub for the state’s wind industry. State legislation also sets a RPS that requires power companies to generate 35% of their power from renewable energy by 2025 and 50% by 2030. In October 2019 an Executive Order established a statewide climate change resiliency strategy to plan for climate change impacts 17 .

5.C. New York

In March 2019, New York Governor Andrew Cuomo signed into law a $175 billion budget, which provides for congestion pricing – the first of its kind within the U.S.– requiring drivers in parts of New York City to pay a toll, the proceeds from which will be used to improve the subway and address other transportation needs 18 . New York also passed the Climate Leadership and Community Protection Act, which became law in July 2019 19 . The Act sets an ambitious statewide objective of achieving “net zero” carbon emissions by 2050, in addition to setting the binding and enforceable goals of reaching 85% reduction of emissions by 2050, with a midterm goal of 40% by 2030. By 2040, the state’s goal is to achieve 100 percent clean electricity 20 . Also notable is a focus on environmental justice concerns, with a 22-member climate action council which will craft a scoping plan on these issues.

 Recognizing the need for investments in environmental justice communities, the Governor committed the state to providing free community solar energy to 10,000 low-income residents.

In March 2018, the Governor committed $1.4 billion to 26 renewable projects, which include 22 solar farms, three wind farms, and one hydroelectric project. The state will invest $200 million in energy storage. New York is also focusing on increasing energy efficiency and has announced that it would increase its current 2025 energy efficiency goal by 50% and provide $36 million in incentives for localities, homebuilders, residents and business to make investments in increasing energy efficiency.

The actions in these three states are all focused on expanding renewable energy, addressing energy supply as well as demand, and incorporating considerations of environmental justice. Their actions offer a detailed glimpse into what bottom-up actions at the subnational level can entail and their important role in addressing climate change.

6. Municipal Initiatives

Cities have also become major actors in addressing climate change. Cites such as New York, Los Angeles, and Chicago have been leaders through organizations such as C40 and Climate Mayors. In June 2017, the U.S. Conference of Mayors, which represents thousands of cities with populations exceeding 300,000, adopted several resolutions, including one that explicitly recognized the importance of the Paris Agreement, the Clean Power Plan, and federal action to support clean transportation alternatives and the need to provide cities with the tools to combat climate change and prepare for its impacts on communities. The Conference also adopted resolutions encouraging utilities, the federal government, and others to help accelerate the electrification of the transportation sector and encouraging cities to pursue a transition to 100% clean, renewable energy by 2035. These are important steps, but they must be implemented.

 Individual cities are making commitments to promote clean energy. To cite but two examples, Orlando, Florida is transitioning its municipal fleet to 100% advanced fuel vehicles with a target date of 2030, and Disneyworld (located there) is bringing a 50 MW solar project online to power two of its four theme parks. San Francisco, California became the first major U.S. city aiming to run fully on renewable energy, with a goal of doing so by 2030.

Cities in other countries are also taking important measures to address climate change. At the 2018 U.N. Climate Action Summit, C40 announced that 27 of its member cities had peaked in their carbon emissions, and since that time, emissions have declined. In October 2017, twelve cities—including London, Los Angeles, Mexico City, and Paris—pledged to procure only zero-emission buses for municipal transit fleets beginning in 2025 21 .

While these initiatives and commitments are important, they alone are not sufficient. Other jurisdictions across the U.S., the federal government, and the world as a whole must do more to avoid reaching tipping points that trigger catastrophic climate change impacts. Recent studies have shown that while 68 countries have stated their intention to enhance ambition in their Paris Agreement NDCs, this only represents 8% of emissions worldwide 22 . More action needs to be taken at every level – federal, state, community, and individual – to ensure that we do not surpass Earth’s critical thresholds. The next sections discuss other important players in our kaleidoscopic world – the private sector and individuals.

7. Private Sector Commitments

Some actors in the private sector are making important commitments to address climate change. Companies and business coalitions have been moving forward with pledges to reduce emissions and invest in climate solutions. They are driven by compelling scientific reports, consumer and employee demands, shareholder resolutions, divestment campaigns, reputational and litigation risks, and more. The Business Roundtable, whose members are exclusively chief executive officers in charge of major U.S. companies, issued a statement in which they committed to lead their companies “for the benefit of all stakeholders – customers, employees, suppliers, communities, and shareholders.”  This includes protecting the environment by embracing sustainable business practices.

The involvement of the private sector is global. Climate Week at the U.N. in September 2019 yielded dozens of new commitments from companies and organizations around the world. For example, 130 banks from 49 countries within the United Nations Environment Programme’s finance initiative – representing over $47 trillion in assets – released the Principles for Responsible Banking to accelerate “the banking industry’s contribution to achieving society’s goals as expressed in the Sustainable Development Goals and the Paris Climate Agreement” 23 . Amazon announced its “Climate Pledge,” committing to honor the objectives of the Paris Agreement with its own twist – meeting the goals laid out in 2040, rather than the Agreement’s 2050 target and calling on other companies to do the same. Former New York Mayor Michael Bloomberg started America’s Pledge, which will track efforts by U.S. states, cities, and businesses to reduce GHGs.

8. Youth Movements and Civil Society Initiatives

Youth have led the way in catalyzing social movements to convince governments and others to combat climate change. Youth climate movements began to appear after the Rio Conference on Environment and Development in 1992 and were largely organized along geographical lines. Since 2005, most have been under the larger umbrella organization of the International Youth Climate Movement (IYCM) with regional membership from all around the world. These movements or networks may combine smaller scale local movements under a national or regional umbrella. Umbrella organizations of NGOs beyond youth also exist, such as the Climate Action Network International with over 1,100 nongovernmental organizations in 120 countries.

In the last few years, youth have created many more movements to combat climate change, which are not geographically linked. Such movements include the Sunrise Movement, Fridays For Future, Extinction Rebellion, Earth Uprising, and Youth Climate Leaders. Some, such as the Sunrise Movement in the U.S., are focused on national actions. Others, such as Youth Climate Leaders, aim to be global organizations. Some are highly global and highly decentralized and do not require an individual to engage with an institution before taking action in the name of the movement. Such movements include Fridays For Future. There is also some overlap between these movements. For example, ambassadors of Earth Uprising are also avid protesters within the Fridays For Future movement. The movements may also support each other, as illustrated by Greta Thunberg’s social media posts supporting Extinction Rebellion actions.

Since this article focuses on subnational actions in the U.S., we consider first the Sunrise Movement, which began in 2017 and has substantial national momentum. Sunrise tries to stimulate political engagement to get authorities to act and to convince the U.S. Congress to adopt the Green New Deal, calling for a rapid transition to 100% renewable energy. The Green New Deal integrates consideration of racial and socio-economic inequities with demands for increased measures to fight climate change and for community and workforce investment. The movement has seen some success in that the Green New Deal resolution has been introduced in Congress, and some candidates for national political office are embracing its principles, though more detail would be required to enact it into policy.

Next we consider two international youth movements that depend upon local individual actions. Greta Thunberg, a Swede, began her movement in August 2018 when she protested outside the Swedish Parliament for three weeks. She continued these protests on Fridays after school started, sharing her protests on Instagram and Twitter, which led to the hashtags #FridaysForFuture and #Climatestrike. Using social media, she gained momentum with other youth around the world. In September 2019, Thunberg addressed the U.N. Climate Action Summit to great applause. Following her speech, she gained millions of new followers on both Twitter and Instagram. The movement has its costs, though, for it has generated backlash on social media against children and teenage girls.

Extinction Rebellion, a movement that began in the United Kingdom in October 2018, describes itself as an “international movement that uses non-violent civil disobedience in an attempt to halt mass extinction and minimize the risk of social collapse.” Its approach contrasts with traditional tools like petitions or efforts to reach out to political representatives. The movement, using social media of Instagram and Twitter, advocates decentralized action, claiming that anyone who follows its core principles and values can act in its name.

While these movements are similar in trying to effect political change, they differ in significant ways, including in their rhetoric. Most of the earlier movements self-identified geographically, used little social media (mostly nonexistent then) and were rather centralized, with sometimes layers of institutional organization. Recent movements use social media to reach people, advocate individual decentralized actions, and may use strident rhetoric. This strategy enables them to gain global momentum quickly, to reach far more people, and to stimulate wider action.

9. Actions in Courts and UN complaint bodies

Civil society is increasingly bringing complaints before judicial or semi-judicial bodies to press for action on climate change. Some efforts target international tribunals or complaint bodies. Greta Thunberg and fifteen other youth have petitioned the U.N. Committee on the Rights of the Child under the Third Optional Protocol (Article 5) to protest governmental failures to address the climate crisis. The petition alleges that the lack of action by Argentina, Brazil, France, Germany and Turkey will cause youth to suffer consequences in violation of the provisions of the Convention on the Rights of the Child (Articles 3, 6, 24, 30). The petition provides many details of expected harm and also considers applicable principles of international law, including the precautionary principle and the principle of intergenerational equity. While the issue of standing to bring the petition must be addressed, the initiative is important because it presages potentially further petitions to international bodies.

Youth and others are also increasingly turning to national courts to try to force governments to do more to combat climate change or to target fossil fuel companies as sources of the climate problem. In the United States, 21 young people brought suit against the U.S. Government in Juliana v. United States alleging that the Government is knowingly neglecting to prevent future catastrophic effects from climate change in violation of the plaintiffs’ constitutional due process rights in life, liberty and property. They have invoked the public trust doctrine and extended it to the atmosphere. The District Court and the Federal Appeals Courts have refused to dismiss the case, but due to procedural challenges the case has yet to proceed to trial. Similar lawsuits have been launched in other U.S. states.

Cases are also being pursued in other countries. In the Netherlands, the Urgenda Foundation sued the Dutch Government for failing to take adequate measures to reduce GHG emissions. The District Court in The Hague ordered the Government to reduce annual GHG emissions by at least 25% at the end of 2020 compared with the 1990 emissions level in order to reduce the risk of dangerous climate change. The Court concluded that the principle of fairness required the State to ensure that the costs of climate change are distributed reasonably between present and future generations. On 20 December 2019, the Netherlands Supreme Court upheld the decision. In Pakistan, in Leghari v. Federation of Pakistan, the Lahore High Court Green Bench agreed that the failure of the Government to address climate change violated plaintiff’s constitutional rights to life and dignity. It created a Climate Change Commission to monitor progress in implementing the country’s National Climate Change Policy. The case is especially important for recognizing fundamental rights as a basis to challenge national government inaction on climate change and invoking the intergenerational equity and precautionary principles.

While these cases are perhaps among the most well-known, youth and others have brought climate change cases in at least 28 countries, covering North and South America, Europe, Asia and the Pacific Region 24 . In January 2019 the municipality of Grande-Synthe in France filed a suit before the Conseil d’État against the French government for failing to take appropriate measures to combat climate change and requested that it be ordered to take appropriate actions to reduce GHG emissions. Notre Affaire à Tous and three other non-profits filed a similar suit in March 2019 before the Administrative Court of Paris. These cases reflect a growing trend to use the courts as a way to get governments to address climate change.

Public prosecutors, nongovernmental organizations, and individuals are also turning to the courts to try to hold fossil fuel companies responsible for their failure to acknowledge publicly and address the dangers of fossil fuels in contributing to climate change. In New York, the Attorney General sought to prosecute Exxon Mobil under New York’s Martin Act against shareholder fraud,  alleging that the company misled investors and shareholders about the actual costs and risks of climate change and hence the assessment of the company’s attractiveness as an investment. On 10 December 2019, the New York Supreme Court rejected the claim on the basis that the Attorney General had failed to establish a violation by a preponderance of evidence. Massachusetts has filed a civil suit against Exxon Mobil alleging misrepresentation and failure to disclose climate change risks to the business and seeking injunctive relief and punitive damages. Several Exxon Mobil shareholders in Texas and New Jersey have initiated suits in federal court against directors of the corporation, alleging violation of federal securities law, breach of fiduciary duty, waste of corporate assets, and unjust enrichment. In Maryland, the Mayor of Baltimore and the Baltimore City Council have filed a complaint in state court against 26 oil and gas companies alleging that they contributed to climate change by producing and selling fossil fuels and by deceiving the public about the products’ danger in violation of several state laws.

Lawsuits against companies for contributing to climate change are being litigated in other countries as well, as for example the suit by a Peruvian farmer against a German electricity company for contributing to climate change leading to glacial melting and floods.

The use of court litigation to hold government and companies accountable for climate change is increasing. This trend reflects a sense of urgency in using all available levers and approaches to address climate change. The key question is what difference all the initiatives described above will make in limiting GHG emissions sufficiently to keep the global temperature from rapidly rising and risking the stability of our climate system. The answer is still unclear. Monitoring and assessing these efforts and their effects will be essential.

10. Reflections on Bottom-up Initiatives in the Kaleidoscopic World

The mitigation of climate change is a global public good. Climate change has profound implications for people today and for future generations. It is inherently long-term and intergenerational. Our actions to address climate change take place in the context of the new kaleidoscopic world, with rapid change, many actors (both public and private), and different kinds of legal instruments. The problems of climate change must be addressed locally, regionally, and internationally. Individuals must become involved. While all the actors must be accountable for their actions (or inactions), the complexity of the kaleidoscopic world makes accountability more challenging.

In the new kaleidoscopic world, national governments must act to reduce GHG emissions. However, top-down measures by themselves are unlikely to be sufficient even if States meet their current national determined contributions.

Bottom-up approaches that engage other actors beyond governments are essential. They enable national governments to meet their commitments and provide avenues to go beyond them.

In this more fluid context, legal instruments must go beyond formal international agreements and national legislation. Arrangements between subnational entities, nonbinding legal instruments, and individualized voluntary commitments by all actors, public and private, are essential and likely to become increasingly common.

As we develop top-down and bottom-up measures to address climate change, equity issues arise. Climate change will have disparate and unequal effects on low-income and minority communities and individuals, who frequently live in vulnerable areas and have far fewer resources to adapt. Moreover, they have contributed least to emissions of greenhouse gases. This means we must address such intragenerational inequalities with fair and robust policies.      

Climate change intrinsically raises issues of intergenerational equity. Our actions today will profoundly influence the robustness and habitability of our planet for future generations and the costs they must bear to protect their inheritance. Youth know this. The problem is that future generations are not at the table for the decisions we take today. The kaleidoscopic world complicates efforts to give them a voice, because these decisions happen on multiple levels, with multiple actors, and on multiple issues. We need to devise ways to ensure that the interests of future generations are considered in these decisions 25 .           

Accountability is critical to ensuring that those who act, whether top-down or bottom-up, are answerable for the results of their action or inaction. Individuals must also be accountable. Accountability can be complicated. Who is accountable to whom, for what, when, and how? The lawsuits related to climate change and the youth and other movements working through direct engagement with policy makers are efforts to hold leaders accountable. These actions are vital in capturing attention and in catalyzing action at all levels of society.

Notes

  1. The authors thank Katherine McCormick and Olivia Le Menestrel for research assistance. This article was first published in Y. Aguila (ed.), « Le droit à l’épreuve de la crise écologique », Revue des Juristes de Sciences Po, January 2020.
  2. E. Brown Weiss, Establishing Norms in a Kaleidoscopic World, 396 Recueil des cours (2018).
  3. P. Kabat et al., United in Science: High-Level Synthesis Report of Latest Climate Science Information 5, (Sept. 2019).
  4. Intergovernmental Panel on Climate Change, Special Report on the Ocean and Cyrosphere in a Changing Climate (25 Sept. 2019).
  5. See V. Arroyo, “From Pittsburgh to Paris”, 31 Georgetown Environtmental Law Review, 433 (2019), for additional examples of state and local leadership.
  6. The President Donald Trump sent his official notice of withdrawal on 4 November 2019; withdrawal takes effect a year later.
  7. U.S. Climate All., Fighting for our future: Growing our economies and protecting our communities though climate leadership (2018).
  8. Home, We are still in: https://www.wearestillin.com/ (last visited 2 Oct. 2019).
  9. Regional States Announce Proposed Program Changes: Additional 30 percent Emissions Cap Decline by 2030, RGGI, INC (23 AUG. 2017), https://www.rggi.org/sites/default/files/Uploads/Program-Review/8-23-2017/Announcement_Proposed_Program_Changes.pdf.
  10. TCI’s Regional Policy Design Process 2019, Transportation & Climate initiative (1 Oct. 2019): https://www.transportationandclimate.org/.
  11. See, C40 Cities, https://www.c40.org/ (last visited 21 Oct. 2019).
  12. See About the Under2 Coalition, UNDER2, https://www.under2coalition.org (last visited 21 Oct. 2019).
  13. See, Powering Past Coal All.: https://poweringpastcoal.org/ (last visited 31 Oct. 2019).
  14. Appendix A: Solar Jobs by State, THE SOLAR FUND (2018): http://www.thesolarfoundation.org/wp-contents/uploads/2019/02/Appendix-A.pdf.
  15. Canada and California Sign Agreement to Work Together on Cleaner Transportation, CAL. AIR RESOURCES BOARD (26 June 2019): https://ww2.arb.ca.gov/news/canada-and-california-sign-agreement-work-together-cleaner-transportation.
  16. The State of Innovation: Building a Stronger and Fairer Economy in New Jersey, THE ST. OF N. J. (Oct. 2018): https://www.njeda.com/pdfs/StrongerAndFairerNewJerseyEconomyReport.aspx.
  17. Governor Murphy Signs Executive Order to Establish Statewide Climate Change Resilience Strategy, INSIDER NJ (Oct. 29, 2019) https://www.insidernj.com/press-release/governor-murphy-signs-executive-order-establish-statewide-climate-change-resilience-strategy/.
  18. FY 2020 Enacted Budget Financial Plan, N. Y. ST. of Opportunity (Mar. 2019): https://www.budget.ny.gov/pubs/archive/fy20/enac/fy20fp-en.pdf.
  19. New York Climate Leadership and Community Protection Act, S. 6599, 2019 Leg. Reg. Sess. (N. Y. 2019).
  20. Governor Cuomo Announces Formal Request for New York Exclusion from Federal Offshore Drilling Program, N. Y. ST. (9 Mar. 2018): https://www.governor.ny.gov/news/governor-cuomo-announces-formal-request-new-york-exclusion-federal-offshore-drilling-program.
  21. C40 Cities Clean Bus Declaration of Intent, C40 CITIES (2017): https://www.c40.org/networks/zero-emission-vehicles.
  22. 2020 NDC Tracker, Climate Watch: https://www.climatewatchdata.org (last visited 1 Nov. 2019).
  23. Principles for Responsible Banking, UNEP Fin. Initiative: https://www.unepfi.org/banking/bankingprinciples/ (last visited Nov. 5, 2019).
  24. J. Setzer & Rebecca Byrnes, Climate Chance Litigation: 2019 Snapchot (July 2019), http://www.lse.ac.uk/. See Climate Change Litigation Database, for a list of cases initiated by youth, http://climatecasechart.com (last visited Nov. 5, 2019).
  25. E. Brown Weiss, Intergenerational Equity in a Kaleidoscopic World, 49 ENVTL. L. & POL’Y 3 (2019); U.N. Secretary-General, Intergenerational Solidarity and the Needs of Future Generations: Report of the Secretary-General, UN Doc. A/68/322 (15 Aug. 2013).
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Edith Brown Weiss, Vicki Arroyo, Addressing Climate Change from the Bottom-Up in a Kaleidoscopic World, Aug 2021.

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