Climate Science and the Energy Transition in Climate Litigation Seminar

On August 29, The Environmental Law Institute and its Climate Judiciary Project teamed up with The George Washington University, acting through the Environmental & Energy Management Institute (EEMI) and GW Law School, to present a compelling and sobering seminar on “Climate Science and the Energy Transition.” The program was designed to address how science and technology related to climate change are reflected in the law and courts. 

The morning session paired a discussion of cases addressing climate change with a discussion of the science of climate change. 

Randall Abate, Assistant Dean for Environmental Law Studies and Professorial Lecturer in Law at GW Law, traced the principal lines of arguments underlying major cases that have sought judicial remedies related to climate change, including injunctive relief, regulatory action, and compensation from those that emit greenhouse gasses to those harmed. Although U.S. courts have granted little relief since the 2007 decision in Massachusetts v. EPA, in which the U.S. Supreme Court affirmed EPA’s ability to regulate carbon dioxide emissions from new motor vehicles as a pollutant under the Act, progress is being made as legal theories are tested and refined. Those theories involve atmospheric trust litigation theories in state courts and climate adaptation cost recovery cases against the fossil fuel industry in state courts.

Rachael Jonassen, EMMI’s Director for Climate Change and Associate Research Professor for GW’s College of Professional Studies’ Sustainable Urban Planning Program, gave a sobering assessment in her talk on the Basics of Climate Change Science. Her careful delineation of the latest understandings of climate science, including the important limitations of the ocean as a carbon sink and the cycles of ice cap melting triggered by past accumulations of gases that cannot be readily reversed, starkly outlined the present precarious situation of the planet and the limitations on what can be accomplished even with vigorous mitigation. Thus, adaptation measures, as well as mitigation, are essential.

The afternoon session opened on an optimistic note, as Scott Sklar discussed clean energy technologies. Professor Sklar is President of Stella Group, Ltd., a faculty member at GW’s College of Professional Studies’ Sustainable Urban Planning Program, Energy Director for EEMI, and Director of GW’s Solar Institute. Based on his decades of experience in developing clean energy systems on seven continents (including Antarctica), he identified numerous measures that could be used to maintain human health and well-being using sustainable energy, such as wind, solar, community solar, storage, microgrids, and fuel cells. 

The optimism deflated again, however, as Donna M. Attanasio, Assistant Dean for Energy Law and Professorial Lecturer in Law at GW Law, walked through the many legal obstacles that slow deployment of clean energy resources. These include the split between federal and state jurisdiction over energy, which can lead to a lack of synchronization between one jurisdiction’s policies and another jurisdiction’s law; resistance from incumbent market participants; and the challenge of fitting new technologies or new applications of technology, such as multi-user microgrids, into existing laws. She noted in closing, however, that recently, federal legislation, including the Infrastructure Bill and the Inflation Reduction Act, holds promise for addressing some of the issues. She pointed in particular to elements such as attention to equity and new employment opportunities in communities that have relied on fossil-fuel industries, which are important to garnering public support for clean energy.