Law, Society and Climate Change

 In the wake of Hurricane Sandy, there has been a significant increase and focus on an issue, that for decades, has been a subject of controversy and divide – climate change.  Since the 1970’s, climate change and climate research has been the backbone of monumental environmental legislation, political and legal tensions and caused a push, both foreign and domestic, to act on this process that could have detrimental effects on the global society.  This paper will consist of peer-reviewed information about how societal factors, as well as legal factors play a role in the action, and inaction, of climate change.   Each of the four main legal theories – positivism, realism, natural law and formalism – all offer a different viewpoint on the legal and political influences of climate change legislation.  By using these legal theories and applying them to Massachusetts v. EPA (arguably the most important case yet as it relates to climate change), one will have a better understanding of how these theories can not only play a role in the courts, but also in the mindset of everyday peoples and politicians.

In 2007, the United States Supreme Court announced their 5-4 decision in Massachusetts v. EPA.  This suit was brought against the Environmental Protection Agency not only by Massachusetts, but also eleven other states and a number of organizations, municipalities and political territories.  In addition to the Environmental Protection Agency, defendants also included ten states, a number of automobile organizations and pro fossil fuel firms.  With this decision, the Supreme Court would now make it mandatory for the EPA to regulate carbon dioxide as a greenhouse gas, but more importantly as a pollutant (549 U.S. 497, 127 S.Ct. 1438).  The Supreme Court Justices – J. Scalia, J. Stevens, J. Kennedy, J. Souter, J. Thomas, J. Ginsburg, J. Breyer and J. Alito – each with there own preferred legal theory to interpret the law, contributed in different ways to each opinion (Horwitz, 1975).  With certain Justice’s more vocal about their preferred legal theory (for example, Justice Scalia is known to be a Formalist), each brought forth specific and important interpretations of the requirements of the Environmental Protection Agency and how they should, or should not, handle carbon dioxide.

Aside from the judiciary opinions having to do with climate change and Massachusetts v. EPA, there is also a very important political aspect that influences its mission and implementation.  When the Environmental Protection Agency was created under the Nixon Administration in 1970, Congress “has ordered the EPA to protect Massachusetts (among others) by prescribing standards applicable to the ‘emission of any air pollutant from any class or classes of motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may be anticipated to endanger public health or welfare.’” (Percival, 2009).  Congress granted the EPA specific powers, none more important than to protect the health and wellbeing of humans.  In addition, Congress’ specific language that they include in bills or legislation creating a federal agency are imperative to the obligations of the agency, but also to the interpretations by any judiciary that may follow the agency’s creation. 

Before one can understand the judicial and legal factors of climate change, the social factors must be well understood.  At this point in our nation’s history, one could argue that the polarization in our nation is at an all time high.  Climate change is no exception, and this divide between “believers” and “non-believer” has been apparent for decades.  Skepticism may arise from any number of sources, but there is a strong belief that a large source of skepticism is politically driven.  When climate change science was first heavily studied in the mid to late 20^th century, there was a strong consensus among citizens, but more importantly, politicians, that action must be taken.  There was a strong sense of unification when it came to environmentalism and environmental concerns.  For the next few decades (from the 1970’s to 1990) there were many monumental environmental regulations and agencies that were created – Environmental Protection Agency, Clean Air Act, Clean Water Act, National Environmental Policy Act, etc – and were highly accepted among Congress and the United States.  The tides changed with the Reagan Administration and into President George H. W. Bush’s Administration.  In this period of time, these two presidents were strongly opposed to environmental regulation, specifically regulations placed on fossil fuel production and regulations that could “hinder” economic progression.  In fact, The Jewish Policy Center (a think-tank aimed at Jewish Republicans) states, “Federal regulation was widely viewed as a substantial factor in the slow economic growth of the decade [under the Reagan Administration]” and goes on to say, “his [President Reagan] administration aimed to bring regulatory activity back into a proper economic balance” (Hayward, 2009). 

It was this era that stemmed the political and national polarization in environmental issues, specifically climate change.  As presidents and politicians began to separate themselves from one another, with some, taking a hostile stance against climate change, so did their constituents.  From the 1990’s to the present, polarization has increased exponentially.  Democratic Presidents (Clinton and Obama) tend to favor environmental regulations, and Republican Presidents (Bush, Sr. and Bush, Jr.) tend to oppose environmental regulations.  These trends are mirror images of the trends among Democrats and Republican Americans over the past 20 years.  Fortunately (or unfortunately, depending on how you look at it), with recent environmental disasters – such as Hurricane Sandy, Hurricane Katrina, horrific droughts, sea level rise, forest fires, etc – there has been an increase in those who not only believe that climate change is real, but that human factors are a leading cause.  Many of these same people are calling for government action to combat climate change; consequently, due to the political gridlock in our government, that seems to be a dream among the hopeful. 

Legal theories, such as the ones that will be discussed in this paper, not only can be used by justices or judges, but also by ordinary people.  Whether they know it or not, how a person interprets an issue or expresses his or her beliefs can most likely be matched up with one kind of legal theory.  There seems to be some sort of wiggle room, though; this idea is strictly circumstantial.  A person’s view is usually based on the outcome that they desire.  For example, in a matter concerning climate change action by the EPA, an activist in support of the law that the EPA must regulate all pollutants would most likely take a liberal, contextual legal theory approach.  On the other hand, someone opposed to this action would look to the conservative, text-based approach.  This can be easily switched if the case were one in which those (the public) who took a text-based approach in Massachusetts v. EPA were presented with a case that they did favor – they would then, most likely, favor a broader, contextual approach in an effort to seek the outcome that they want.  Of course, this really only applies to the public.  Our justices and judges do not have the ability to pick and choose which side of the argument they want – they can only interpret the law for what it is and only what it is.  But what really is the law?  It is this question that draws the main issue in our judicial system and is the reason that main legal theories – positivism, realism, formalism and natural law – were created. 

Perhaps the most prominent and well-known legal positivist is legal philosopher, H.L.A. Hart.  Hart created a guideline system for legal positivists to follow that established two categories to determine what law is and how to interpret the same.  He first believes that law consists of two parts, primary and secondary rules; these rules are very straight forward – primary being “do” and “do not do” laws, and secondary being law making laws (for example the U.S. Constitution) (Koulish, 9/18/2012).  Next, he divides law into two parts: core and penumbra.  Core law needs no interpretation; “Do not litter” and “Do not dump hazardous waste into streams” are both examples of core law (Koulish, 9/18/2012).  Then there is penumbra, which is a little more in depth.  Penumbra law are ambiguous and are “resolved by judicial interpretation and look for ought statements” (Koulish, 9/18/2012). 

In general, legal positivism is not favored among those who are environmental activists, specifically those that are advocates of environmental protection, some even going so far as to call it the “the so-called tool of tyrants” (Nicholson, 1982).   This theory has, in many cases, gone against the ideals of environmentalism.  Many environmentalists, at least in modern times, believe that morality must be fully considered when interpreting environmental law, a factor that some, such as Joseph Raz – a world renowned legal positivist scholar -, believe (Himma, 2001).  When interpreting law, some believe a judge must consider the possible future effects of perhaps, a decision on whether or not to overturn a decision such as Massachusetts v. EPA, and the implications that the non-regulation of carbon dioxide could have on climate change.  Consequently, others have a different view towards legal positivism and environmental law.  Ming-Sun Kuo, an international environmental law scholar states, in the context of international environmental law, “given the absence of agreement on content-based criteria and of an agreed political theory, it is doubtful whether any approach to law other than legal positivism can provide a baseline acceptability for determining what is law” (Kuo, 2012). 

As it relates to Massachusetts v. EPA, a legal positivist would have ruled in favor of mandatory EPA regulation.  The language of the law clearly states that Congress empowered and expects the EPA to protect citizens from air pollutants that may be emitted by any sort of vehicle (Massachusetts v. EPA, 2007).  Being that carbon dioxide is a pollutant, as made clear by the science community, the EPA must regulate carbon dioxide.  One benefit to the legal positivist theory in this case is the fact that a legal positivist would separate the politics from the law itself.  The political lobbying by fossil fuel corporations, that unfortunately have an influence on our elected leaders, would not influence a legal positivist.  By eliminating that factor, a legal positivist can more easily interpret the law as Congress intended. 

Oliver Wendell Holmes, at one time a Justice on the Supreme Court of the United States, was the focal point of legal realism.  Environmentalists would greatly prefer legal realism to legal positivism, if anything, for one specific reason: legal realism looks at the time and space of law, because it depends on the current state of society and current circumstance, thus taking the larger context of the issue into consideration when interpreting law (Koulish, 9/25/2012).  By using the current state of society, trends in the way society is moving, and common opinions, this theory is much more favorable among environmentalists.  At a time when climate change is among us, and already affecting many nations and peoples, a legal realist would take into consideration that there are strong environmental movements taking place in the United States and around the world where people are advocating for government action, stricter regulations and reductions in fossil fuel usage, when interpreting a related environmental law.  While some theories are criticized for considering morality, legal realism does not, but seems to find common ground.  At one point in time, legal realists were heavily criticized for how they interpreted the law.  Michael Green, a scholar at the William & Mary School of Law, states, “realists' rejection of legal rules was an attack on the idea of political obligation and the duty to obey the law.” (Green, 2005).  Legal realists do not believe that morality is relevant to understanding law, nor do they believe that conforming to political “obligations” is necessary, they will instead argue that interpreting current societal circumstances are relevant and very important when studying and interpreting law.  A legal realist would most likely vote in favor of a law, such as Massachusetts v. EPA, strictly because there was, and still is, a strong environmentalist push for the regulation of fossil fuels and carbon dioxide, due to its significant impact on climate change.  In addition, the fact that climate change was one of the main reasons for this law suit would probably be enough of a reason for a legal realist to rule in favor of this case; climate change is a serious threat to man kind and given that legal realists look at contextual matters, regulating carbon dioxide as a pollutant would answer societal trends, but more importantly would answer the question of whether or not this “threat” is one that our government should begin to consider. 

Legal formalism, as viewed through an environmentalists’ perspective, is an adversary.  This legal theory is very text-based and offers no consideration to morality, nor any outside factor other than the law itself.  This negative view towards legal formalism is partly due to a famous formalist that currently sits on the United States Supreme Court – Justice Anthony Scalia (Horwitz, 1975).  Justice Scalia is notorious for his narrow-minded, anti-environmental opinions that favor conservative ideologies and a text-based approach to interpreting laws.  Legal formalists will tell you that this system is autonomous and separates itself from politics and society, but a non-legal formalist can debunk argument by suggesting that Justice Scalia, in many ways, uses his conservative values in his work.  These conservative values include deregulation, anti-environmental opinions, increased fossil fuel usage, etc.  In Massachusetts v. EPA, Justice Scalia presented the dissenting opinion and believed that the court had no jurisdiction to answer the question presented in the case: Should the EPA regulate carbon dioxide? (Massachusetts v. EPA, 2007). 

Morton Horwitz, an expert on legal formalism, describes legal formalism as a theory that is catered to support the “men of commerce and industry” since its creation in the 1800’s (Horwitz, 1975).  This same rationale still holds true today and is believed by many in the legal theorist field, politics and the public.  Today, men of commerce and industry would be stereotyped as conservatives; this is how much of modern society views these types of people and in many cases these men (there are now women that fall under this label) justify being labeled as this.  As it relates to environmentalism, an environmentalist would specifically point out fossil fuel executives and anti-environmental regulation politicians as the “men of commerce and industry”.  These men would look to legal formalism as favorable to their interests.  Justice Scalia is a great example because he has voted against almost every pro-environment case, and voted in favor of almost every anti-environment case, that has come to the Supreme Court.  Just as Justice Scalia voted against Massachusetts v. EPA, a strong argument can be made that any legal formalist judge would have done the same.  The strong implications of carbon dioxide regulation, to a conservative, is very much against their values and to them, would hurt industry and economic growth.  While this is a stereotype, due to the action, and inaction, of prominent legal formalists, many people give the formalist label to anyone that associates themselves with anti-environmental ideologies that many show in their judicial obligations.

The last of the four main legal theories is the polar opposite of legal formalism.  Natural law embodies the belief that law must be moral in order for it to be law.  Famed natural law theorist Lon Fuller formulated a system to distinguish that a law was actually law by running it through 8 points.  If it cleared these requirements then it is, in fact, law.  More importantly is the idea that natural law encompasses the theory that law is determined by nature and human nature – how things are supposed to be in society, not how others want things to be in society.  Natural law has been associated with common law, which has been mostly eradicated since modern laws typically have replaced and made common laws irrelevant.  This is a common misconception that Peter Byrne, a lawyer and professor at Georgetown Law School, discusses in his piece “Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Climate Change”.  He writes that since common law utilizes older cases for precedent, they are “blissfully ignorant of the types of environmental harms” (Byrne, 2010). 

This legal theory is, arguably, one of the most relatable to environmentalists and the climate change movement.  A judge using natural law in the case Massachusetts v. EPA would look at the moral grounds of the argument and the natural and human impacts of climate change.  By doing this, they would come to the conclusion that it would be morally and naturally imperative for the EPA to regulate carbon dioxide in an attempt to curb carbon dioxide emissions.  The impacts that climate change will have on our society would be enough evidence for a natural law theorist to understand that regulations are what is supposed to happen, but more importantly, what needs to happen for the betterment of society. 

With the current obstacles that humans face, environmentally speaking, of all legal theories, natural law may be the most important and could have monumental impacts on our society. Judith Koons, a professor at Loyola University New Orleans College of Law, calls for Earth Jurisprudence, which she describes as, “a developing field that rethinks law and governance from an Earth-centered perspective”, and believes that Earth Jurisprudence has the ability “to guide the transformation of law and governance for the well-being of humanity and the Earth community.” (Koons, 2012).  With this type of thought process, Earth Jurisprudence seems to evolve natural law ideologies from legal theories into a fully functional system with the ability to sustain an entire society. 

These legal theories have been in practice for decades now, each being applied to the thousands of cases that are brought to our courts each day.              Whether it be the application of law to facts that positivists use, the circumstantial and real life applications that realists use, the text-based and conservative approach of formalism or the use of morality and human nature in natural law, all of these legal theories, in their own way, play an imperative role in our legal system.  Each has their uses and flaws and some are favored over others, but nonetheless, whether loved or hated, the combination of these legal theories through their uses in cases throughout our history are what makes our society what it is. 

But our society faces new challenges.  As our climates continue to change with each passing day, there is a sense of built up frustration amongst environmentalists, scientists, legal theorists, scholars and even politicians.  The want and need for climate change action is higher now than ever before in our nation’s history.  Many look to those in the legal field - whether it be lawyers, politicians or judges - for guidance and some sort of signal that action is coming.  Unfortunately, at least for now, that hope is being lost due to political gridlock in Washington. 

Society is becoming more aware of the adverse affects that climate change could have on it and our families, and there is a general consensus that something needs to be done.  There is no doubt that in the coming years, the legal theories discussed in this paper will be used in cases concerning climate change, carbon emissions, sea level rise, food crises, fossil fuel shortages, and socio-economic suits that may eventually be presented in court.  Whenever that day comes, the legal theories used by judges and lawmakers and the environmental legal actions taken now, will ultimately determine the state of our society and climate in the future. 

Bibliography

Byrne, Peter J. ."Rising Seas and Common Law Baselines: A Comment on Regulatory

Takings Discourse Concerning Climate Change" (2010). Georgetown Law Faculty Publications and Other Works. Paper 338.

Green, Michael S. .“Legal Realism as Theory of Law”. 46 Wm. & Mary L. Rev. 1915

(2005). <http://scholarship.law.wm.edu/wmlr/vol46/iss6/2>

Hayward, Steven F. ."Ronald Reagan and the Environment - inFocus Quarterly Journal." Jewish

Policy Center. N.p., n.d. Web. 2 Dec. 2012. <http://www.jewishpolicycenter.org/1409/ronald-reagan-environment>.

Himma, Kenneth. "Legal Positivism”. Internet Encyclopedia of Philosophy. N.p. . 17 Apr. 2001.

Web. 3 Dec. 2012. <http://www.iep.utm.edu/legalpos/>.

Horwitz, Morton J. .“The Rise of Legal Formalism”. The American Journal of Legal History.

Vol. 19. No. 4 (Oct., 1975). pp. 251-264.

Koons, Judith E. .“At the Tipping Point: Defining an Earth Jurisprudence for Social and

Ecological Justice”. (2012). Loyola Law Review. 58 Loy. L. Rev. 349.

Koulish, Robert. "Hart-Fuller Debate." GVPT331: Law and Society. University of Maryland –

College Park. Susquehanna Hall, College Park. 18 Sept. 2012. Class lecture.

Koulish, Robert. "O.W. Holmes and Legal Realism." GVPT331: Law and Society. University of

Maryland - College Park. Susquehanna Hall, College Park. 25 Sept. 2012. Class lecture.

Kuo, Ming-Sung. “Inter-Public Legality or Post-Public Legitimacy? Global Governance

and the Curious Case of Global Administrative Law as a New Paradigm of Law”. International Journal of Constitutional Law. (2012). Warwick School of Law Research Paper No. 2012/07. 29 Feb. 2012.

Massachusetts v. E.P.A. 549 U.S. 497, 127 S.Ct. 1438. Supreme Court of the United States.

2007. Westlaw Academic. Web. 14 November 2012.

Nicholson, Francis J. .“Juridical Positivism and Human Rights By Mieczyslaw Maneli”. 5 B.C.

Int'l & Comp. L. Rev. 489 (1982). 1 Aug. 1982. <http://lawdigitalcommons.bc.edu/iclr/vol5/iss2/8>

Percival, Robert, Christopher Schroeder, Alan Miller, and James Leape. “Environmental

Regulations: Law, Science and Policy”. New York: Aspen Publishers, 2009. Print.