Tuesday, November 6, 2018
Rebecca Bratspies is Professor of Law at the CUNY School of Law and the founding director of the Center for Urban Environmental Reform.
This is the second in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Now is the moment!
The choreographer George Balanchine is famous for telling his dancers
“why are you holding back? What are you saving for—for another time? There are no other times. There is only now. Right now.”
While dance and environmental law are generally not considered the most closely aligned fields, I have been thinking about Balanchine’s word’s lately as I try to respond to the current administration’s approach to climate change, and to environmental law more generally.
On October 6, 2018, the Intergovernmental Panel on Climate Change issued a report titled Global Warming of 1.5°C. This report underscores the vital importance of ‘now” that Balanchine was trying to convey to his dancers. The report emphasized that the world is not yet committed to catastrophe—it is still possible to keep anthropogenic climate change below 1.5°C of warming. However, there is only a small window of time in which we can change our trajectory and limit the damages of climate change. Thus, the IPCC unambiguously states that the need for immediate action is urgent and that averting catastrophe will require “rapid and far-reaching transitions” that “are unprecedented in terms of scale.” There are no other times. There is only now. Right now!
The United States national government seems set on preventing any such transition. Announcing with great fanfare that the United States would withdraw from the Paris Agreement, the Trump Administration is on the wrong side of history. Climate deniers occupy key executive branch positions. As a result, the government alternates between bolstering the coal industry, undoing laws preventing methane and HFC emissions, and reducing fuel efficiency standards. Indeed, the Trump administration recently used the prediction that disastrous warming was inevitable as a reason to allow increased carbon emissions from vehicles. Noting that the proposed rollback was “projected to result in only very minor increases in global CO2 concentrations and associated impacts”the administration rationalized that any such restrictions were too small to matter because climate change is a global issue. This was, of course, precisely the argument rejected in Massachusetts v. EPA. In that case, EPA had argued that because greenhouse gas emissions caused widespread harm, there was no “realistic possibility. . .that the relief petitioners seek would mitigate global climate change and remedy their injuries.” The US Supreme Court flatly rejected this contention noting that “the United states transportation sector emits an enormous quality of carbon dioxide” and that restricting these emissions would be an incremental step that might reduce the risk to some extent.
Yet, even as the federal government backslides, large portions of the country are forging ahead. All eyes are on the cities, states, businesses and other organs of civil society that have pledged to take action on their own. The 3600 member strong “We’re Still In” coalition, for example, has taken up the task of achieving with the United States’ Nationally-Determined Commitment to the Paris Agreement without federal leadership. Hundreds of subnational and private actors have submitted pledged to reduce their carbon emissions. These commitments put us on track to come close to achieving our Paris obligations. And, technology is rapidly leaving carbon behind. Even in the US, renewables and electric cars are burgeoning, prompting the Climate Action Tracker to revise the United States’ projected emissions downward despite federal intransigence. “There are no other times. There is only now. Right now!”
Moreover, the rest of the world seems committed to a greener future. A Dutch appeals court just ordered the Netherlands to rachet up its climate ambitions. A host of similar lawsuits around the globe are pushing other countries to do the same. These lawsuits are changing the public narrative. Together with the IPCC report emphasizing that we are not yet committed to 1.5 C, the message is being heard: “There are no other times. There is only now. Right now!”
Perhaps the greatest signal that we may be experiencing a sea change is the emerging consensus on the human right to a healthy environment. On October 25, 2018, the UN Special Rapporteur for Human Rights and the Environment addressed the United Nations General Assembly for the first time. While the United States did not attend, many other countries did. Costa Rica, Switzerland, and Slovenia spoke strongly in favor of officially recognizing a human right to a healthy environment. Russia prefaced its remarks by stating that the Russian Federation recognized the right to a healthy environment. France has proposed its Global Compact for the Environment, which it describes as a “common road map for transforming our world.”
Together these developments suggest that there is a moment open for action. The United States midterm elections may give us a hint of how the federal government will move forward from here. Yet, regardless of federal action or inaction, we can seize the chance, we can remake our world. Now is the time to think big, to think beyond the narrowing limits of existing environmental law to what a truly sustainable society would entail. There are no other times. There is only now. Right now!