America Is Living in a Climate-Denial Fantasy

Last month, the world’s highest court issued a long-awaited opinion on how international law should regard climate harm. The International Court of Justice concluded, unanimously, that states have binding legal obligations to act to protect the climate system, and failure to do so—by continuing to produce, consume, and subsidize fossil fuels—may “constitute an internationally wrongful act.” In other words, curbing greenhouse-gas emissions is not merely voluntary in the eyes of the court; failure to do so is illegal.

A week later, the U.S. government proffered an entirely opposite picture of legal responsibility. It announced a plan to rescind one of the most important legal underpinnings of the federal effort to combat climate change. The Environmental Protection Agency’s endangerment finding for greenhouse gases, from 2009, says quite simply that these emissions endanger the public and qualify as harmful pollution; they can therefore be regulated under the Clean Air Act. This finding is the legal basis for power-plant rules, tailpipe-emissions regulations, and almost every other action the executive branch has taken to curb the release of carbon dioxide and methane. And the U.S. EPA would now like to throw it out.

The United States and the rest of the planet are now in “completely separate worlds” in terms of legal understanding of climate responsibility, the human-rights attorney Lotte Leicht, who works as the advocacy director of the nonprofit Climate Rights International, told me. “I think almost nothing could have painted a starker picture,” Nikki Reisch, an attorney and the Climate and Energy Program director at the Center for International Environmental Law, agrees.

The ICJ opinion was the first time the world court has expressly addressed climate obligations under international law, and it did so with unusual clarity. It removed what Leicht described to me as a legal fog that the world has existed in for decades by rebuking two of the main arguments that high-emitting countries and companies have made to avoid liability. The first is that the climate crisis is simply too big and complex to attribute to any particular entity, rendering individual accountability impractical and unfair. “The court made clear that that is not an excuse that holds up anymore,” Leicht said. Thanks in part to attribution science, a particular country or company’s contribution to the climate crisis can be assessed, and the fact that many entities are at fault is not an excuse to evade individual liability.

The second argument—that only special climate accords, such as the Kyoto Protocol and the Paris Agreement, could dictate their climate obligations, and that even then those pacts were by and large voluntary—was also struck down. In its opinion, the court wrote that climate action is not, in fact, voluntary at all: Instead, because climate change threatens lives, degrades health, and deprives people of their home, both domestically and across borders, climate agreements are legally binding, and states can be sued for failure to uphold them.

In fact, according to the court, even if a state is not party to a climate treaty, or if a treaty agreement is too weak to prevent the climate harm that country is enacting, that state is still legally liable, thanks to customary law—well-established fundamental legal principles that all countries must comply with, such as the general duty to protect basic human rights.

An advisory opinion such as this one is not in itself legally binding. But the international laws it is meant to interpret are. In some countries, including the Netherlands and Kenya, international law is incorporated into domestic law at the point of ratification. In others, it can take precedence over domestic law; elsewhere, it may become domestic law through an act of legislature. Reisch told me that she expects this opinion to be used to support climate lawsuits against countries and companies going forward, and to justify new legislation in statehouses and local governments. Leicht, who is also the chair of the Council of the European Center for Constitutional Human Rights, told me the opinion would figure in one of her own cases: She is representing four residents of Pari, a tiny Indonesian island, who are suing Holcim, a major Swiss cement company, arguing that its outsize share of greenhouse gases is contributing to Pari’s disappearance.

The U.S., famously, does not make much of international laws. In prior international climate negotiations, America has tried to minimize its responsibility as the largest cumulative emitter of greenhouse gases. Margaret Taylor, the U.S. legal adviser to the State Department under Joe Biden, presented commentary at the ICJ in December in which she argued that current human-rights laws do not provide for a right to a healthy environment, nor should countries be financially responsible for past emissions, both of which the ICJ ultimately disagreed with in this new opinion. The State Department has said it’s reviewing the opinion; whether or not the country acts on it, it does open the U.S. to new climate lawsuits and will strengthen those already under way, including two separate suits brought by youth in Montana and California, arguing that the Trump administration’s actions on the environment threaten their rights. (The State Department did not reply to a request for comment.)

The Trump administration, meanwhile, seems ready to simply ignore, if not outright reject, any responsibility the U.S. might have for climate change. Its intent to roll back the endangerment finding is at odds with recent domestic legal opinion. After the EPA announced its intentions, various legal experts spoke, almost in chorus, about the slim chance this plan had of making it through the likely court challenges. Jonathan Adler, a conservative legal scholar and professor at William and Mary Law School, said in a column that he agreed with it on policy grounds but called the move legally “foolish”—the Bush administration tried a similar strategy in 2007, only to have the Supreme Court affirm that greenhouse gases qualify as air pollutants. The EPA, in an emailed response to questions, acknowledged the 2007 decision, but noted that it “did not require EPA to make an endangerment finding and did not review the logic or conclusions of the 2009 Endangerment Finding because it hadn’t been issued yet.” It also added, hopefully, that there have been two more recent decisions in which the Supreme Court pulled back aspects of the EPA’s ability to regulate greenhouse gases.

By attempting to abdicate any legal responsibility to provide for a healthy environment, the U.S. is running in the opposite direction as the global legal community. Last month, prior to the release of the ICJ opinion, the Inter-American Court of Human Rights also declared that the climate crisis qualifies as a human-rights violation, triggering rights-based obligations for countries and companies in that region. And last year, the International Tribunal for the Law of the Sea issued an advisory opinion qualifying greenhouse gases as marine pollution, triggering similar legal obligations for countries to mitigate them. This trend, Leicht reminded me, will likely outlive the current American political moment.

I found myself struck by the clarity of the final paragraph in the ICJ’s opinion, which reminds lawyers that climate change is bigger even than the law. “A complete solution to this daunting, and self-inflicted, problem requires the contribution of all fields of human knowledge, whether law, science, economics or any other,” the court wrote. “Above all, a lasting and satisfactory solution requires human will and wisdom—at the individual, social and political levels—to change our habits, comforts and current way of life in order to secure a future for ourselves and those who are yet to come.”

Indeed, rights apply not just to the people who exist now, but to future generations. As the U.S.’s climate liability comes into sharper focus, so does the fact of its growing burden on that group. The question is how long the country will disavow that charge.

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