Tuesday, December 20, 2016

ELC Essay #13: Juliana v. United States and our Zero-Sum Climate System

By Melissa Powers

On November 10, 2016, federal district court Judge Ann Aiken issued an astonishing decision in the atmospheric trust climate case, Juliana v. United States. The decision holds that the plaintiffs in the case, who include children and young adults ranging from 9 to 21 years old, have a fundamental right “to a climate system capable of sustaining human life.” The decision further recognizes that the federal government has a public trust obligation to protect resources from the consequences of climate change, including ocean acidification and sea level rise. As a result of this decision, the plaintiffs will now be able to go to trial to prove, among other things,

that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.

If the plaintiffs succeed at trial—as I believe they should—the case should then proceed to the relief stage. Plaintiffs have asked the court to order the federal government to protect the plaintiffs’ fundamental rights and to ensure protection of the trust assets by developing a plan to reduce greenhouse gas emissions. Although resolution of the case could take years, and will almost certainly involve appeals to the Ninth Circuit and Supreme Court, the Juliana decision is already a landmark decision. In the context of this blog series, moreover, the Juliana decision illustrates how and when zero-sum framing is a useful environmental and moral device.

The essays in this blog series have done an excellent job of illustrating the ways in which zero-sum ideas have been used and misused in the arenas of conservation and environmental law. As Jessie Owley notes in her initial blog, the zero-sum concept arises out of economic theory but has been altered in legal, and especially political, dialogue to stand for the idea that environmental regulations often produce an “I win, you lose” outcome. Too often, this depiction of winners and losers creates an untenable regulatory dichotomy pitting jobs or the economy against the environment that often results in regulatory compromises that unnecessarily weaken environmental protections. As several of the blog authors, including Keith Hirokawa and John Dernbach, note, this representation of winners and losers is often false and incomplete. Indeed, economic prosperity and job growth usually accompany environmental preservation. While there may be situations in which a particular resource user’s goals will be stymied by a conservation law, many environmental laws create win-win, rather than win-lose, dynamics.

However, although environmental laws rarely create zero-sum dynamics, some environmental conditions truly are zero-sum. As J.B. Ruhl explains, the zero-sum economic theory refers to an economic state in which all win-win resource allocations have been made and any additional transactions will have to benefit one person at another’s expense. (Imagine, for example, you have 3 apples to share between 2 people, but one person only wants one apple. A 2-to-1 allocation would be win-win. Now imagine that a third person appears and wants the third apple, to the dismay of the person who had planned to eat 2. Allocating the third apple to the newcomer may be fair, but it will no longer be win-win, because the newcomer’s treat comes at the expense of another.) Once an economic system reaches that zero-sum stage, it is considered to be Pareto optimal, or economically efficient. Any further allocations will be considered suboptimal, because a person can win only if another loses. This does not mean that no further allocations should occur; it simply means that all the win-win transactions have been exhausted.

In the case of climate change and the acceptable levels of greenhouse concentrations in the atmosphere, we are well past the zero-sum threshold. Current atmospheric carbon dioxide (CO2) concentrations exceed 400 parts per million (ppm), but scientists tell us concentrations must drop to at least 350 ppm if we have a chance of avoiding uncontrolled catastrophic consequences of climate change. There is no way to create a win-win scenario that would allow additional emissions of greenhouse gases, because any new emission releases must be offset by emissions reductions from somewhere else. The science of climate change is truly zero-sum.

Strategies to address climate change, however, need not be—or at least not in a way that pits jobs, economic growth, and environmental protection against each other. Indeed, a number of the blogs in this series have identified multiple strategies that can produce win-win outcomes with the right amount of planning and proper design. Some of the strategies identified by Jim Salzman and David Takacs attempt to change potential zero-sum outcomes into win-win outcomes through compensation, regulatory flexibility, or ecosystem services models. Shalanda Baker and Inara Scott illustrate how strategic policies designed to transition our energy system away from fossil fuels can similarly avoid the zero-sum dynamic or at least ensure a just energy transition. To be sure, effective climate change mitigation will require us to abandon fossil fuels entirely, and those companies that insist upon continued exploitation of these resources will lose out in the end. However, with the proper amount of planning and thought, we can develop climate mitigation and adaptation strategies that will avoid creating too many winner-versus-loser scenarios. Thus, while climate change itself has reached a zero-sum state, climate change policies can create far more winners than losers.

The Juliana litigation seems to recognize and capitalize on this distinction between the science and the policies. The plaintiffs’ claims place climate science at the front and center of the litigation. In arguing for their fundamental rights and raising public trust claims, the plaintiffs have essentially asked the court to find, based on the science, that the atmosphere has reached a zero-sum state. Not only would a victory represent a significant advancement in climate law, it would alter the false narrative that the climate system can absorb continued increases in greenhouse gas emissions because future emissions decreases will at some point occur. For decades, the federal government has focused on piecemeal policies that aim to reduce some greenhouse gas emissions from some sources, while authorizing massive increases of greenhouse gases from others. Indeed, the “all-of-the-above” energy policy embraced by George W. Bush and Barack Obama is premised on this falsehood. If the plaintiffs win the liability phase of their litigation, they will have secured a ruling that essentially agrees that the climate system has reached a zero-sum state. Once we as a society recognize this reality, we will then be able to focus on developing nonzero-sum strategies to move us forward.


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