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Volume 63, Issue 5
TRANSCRIPT: Time to Wake Up on Climate Change

By Senator Sheldon Whitehouse | 63 Am. U. L. Rev. 1517 (2014)

Thank you for inviting me to speak at today’s Symposium, “Climate Power Play: Financial, Legislative, and Regulatory Moves Toward a New Energy Economy.” I come from Rhode Island, where we take our environment and our state nickname—the Ocean State —very seriously. This was perhaps best exemplified by an exchange between Senator Theodore Francis Green, a Rhode Island Senator of great longevity, and one of his Senate colleagues. Green had apparently done something to annoy a fellow Senator, who then turned to him and said, “Theodore, how big is that little state of yours anyway?” Green looked coolly back at him and said, “Well, that would depend wouldn’t it—high tide or low tide?”

My point here is that what’s happening out there, particularly in our oceans, means a lot for Rhode Island, and that makes it a real pleasure for me to be here with you to have this conversation about climate change. I am perhaps the most optimistic person in the Senate—perhaps the most optimistic person in Congress—about our ability to get something done on this issue. And let me take a few minutes here to take you through my case.

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No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision in Washington Environmental Council v. Bellon

By Bradford C. Mank | 63 Am. U. L. Rev. 1525 (2014)

In Washington Environmental Council v. Bellon, the U.S. Court of Appeals for the Ninth Circuit held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the U.S. Supreme Court held that a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied, but did not decide, that private parties might have less standing rights than states do when it declared that “[i]t is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual.” Four years later, in American Electric Power Co. v. Connecticut (“AEP”), the Supreme Court, by an equally divided four-to-four vote, affirmed a decision finding standing for both state and private plaintiffs in a tort suit seeking GHG reductions. The Court stated that “[f]our members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts.” Commentators have speculated that the four Justices who found that the AEP plaintiffs had standing may have agreed only that the state plaintiffs had standing.

Frostpaw Addressing Global Warming: Solving a Big Problem with Old Legal Tools and New Administrative Systems

By William J. Snape, III | 63 Am. U. L. Rev. 1587 (2014)

Climate change impacts the law on many levels and in many ways.  This Article asks a threshold question:  what legal structures will most effectively reduce growing levels of anthropogenic greenhouse pollution?  The answer is that an existing U.S. statute—the Clean Air Act—not only possesses clear commands to ratchet down greenhouse pollutants domestically, but also provides explicit authority to negotiate concomitant air pollution reduction with countries around the planet in a fair, transparent, and reciprocal fashion.  

NOTE: The March of the Ents: Using America's National Forests to Mitigate the Threat of Climate Change

By Joshua Axelrod | 63 Am. U. L. Rev. 1627 (2014)

In 2013, the Intergovernmental Panel on Climate Change (IPCC) began publishing Working Group contributions to the IPCC’s Fifth Assessment Report on the state of scientific knowledge regarding climate change. According to Working Group I, the need to significantly limit greenhouse gas (“GHG”) emissions has become imminent if international efforts to hold warming in check are to have any chance at success. Several months later, the IPCC’s Working Group II issued a more dire warning, finding consensus that while the impacts of climate change may remain “moderate” under a-one-to-two degree Celsius warming scenario, “[a]ggregate economic damages accelerate with increasing temperature.” At the same time, the risk of severe impacts to human health, food security, rural livelihoods, and biodiversity—especially in developing countries—increases as global average temperatures rise. As encapsulated by the New York Times, if GHG reductions are not achieved within a short timeframe, future generations may be faced with the expensive—and only theoretically possible—solution of mechanically removing GHGs from the atmosphere “to preserve the livability of the planet.”

NOTE: A Realistic Forecast for U.S. Climate Action

By Sam Crockett Neel | 63 Am. U. L. Rev. 1661 (2014)

United States Senator Sheldon Whitehouse, a Democrat from Rhode Island, has called himself “the most optimistic person in Congress” about Congress’s ability to tackle climate change. Senator Whitehouse was elected to the Senate in 2006, a year in which Democrats won control of both the Senate and the U.S. House of Representatives. Considering that the outgoing Republican chairman of the Senate Environment and Public Works Committee, Oklahoma Senator James Inhofe, stated that climate change was the “greatest hoax ever perpetrated on the American people,” and incoming Democratic chairwoman Barbara Boxer, a Democrat from California, made addressing climate change a top priority, environmentalists hoped that legislative action on climate change was in sight. The House of Representatives passed an Obama Administration-approved cap-and-trade bill, the “American Clean Energy and Security Act of 2009,” but the bill never moved in the Senate. Thus, over eight years later, including two years in which Democrats controlled the White House and both houses of Congress, Senator Whitehouse had to use the words “we can do this,” rather than “we did this,” when discussing climate change legislation that would cap carbon pollution. However, Senator Whitehouse remains optimistic despite Congress’s inability to pass meaningful legislation in the past eight years.