Enforcing the Earth: Legal Challenges to Climate Change

Environmental advocacy is more relevant today than ever before. However, despite increasing amounts of protests, advocacy groups, and environmental degradation thanks to climate change and unsustainable development it seems like nothing ever changes. Why has progress been so slow? While I can’t give a full answer (without detailing environmental policy and law’s extensive history) I can offer a partial answer; the law is not always on the environment’s side. Legal challenges to environmental law, ranging from debates over whether  it's a state or federal responsibility to potential violations of the Bill of Rights to its diplomatic and global implications, often slow progress. Today we’ll briefly explore some common challenges to environmental policy, both on the domestic and international stage, to learn more about slowed progress and begin to unearth the law.

Companies and other entities are subjected to more than just the Environmental Protection Agency’s (EPA) regulations; they also have to be mindful of state regulations. Each has their own set of pros and cons. The EPA helps to establish a nationwide standard, to ensure all states are on an even playing field; reduces disparities between regions, reducing the likelihood of drastically differing local policy; and provides technical support using federal resources. However, state policy comes with its own array of advantages. State regulations are more niche, allowing for it to focus more on specific issues; and they can be passed faster, meaning action can be taken quicker. 

State and federal policies often work in conjunction with one another but there are exceptions. Nuclear waste management is strictly delegated to the EPA, and the EPA also has ultimate say over environmental policy. Ultimate jurisdiction isn’t untouchable though. In 2022, shortly after the Supreme Court ruled against affirmative action, the conservative-dominated Court ruled that the EPA could not place state limits on emissions under the Clean Air Act of 1970. The Court ruled that such authority is vested to Congress not the EPA. This highlights how the EPA’s authority can be limited by other sectors of the federal government. Furthermore, the EPA tends to delegate the enforcement of its laws to state agencies. This gives states freedom to decide how to implement policy and as such how they'll meet those requirements. Individual states have varying political agendas which might range from environmental policy being the forefront of state affairs or a forgotten subject state legislatures push aside in favor of others. This can lead to disparities in funding, enforcement, and policy that create vastly different green-rankings such as water quality in Hawaii (ranked 1 by WalletHub) and West Virginia (rank 48). This is where environmental policy tends to circle back around to the EPA and the cycle repeats.

Let’s expand on proper implementation and enforcement for a bit. We’ve already discussed disparities among states, but what about differences between countries? After all, climate change and the environmental crisis are global issues, whether the harshest effects are noticeable in your community or not. For the greater part of four decades the environmental law has dramatically expanded: as of 2017, 176 countries have environmental framework laws. Despite growth in laws implementation hasn’t seen much improvement and the main culprit seems to be the same issues that have plagued international politics since globalization began: making effective policy that fits everyone’s needs and resources. 

While the UN and other international bodies can work to facilitate agreements they can’t really force individual countries to enforce them. Countries tend to like their sovereignty, which is understandable. Imagine if the UN told Congress it absolutely had to make a new law, provide the funding, and pass it? I don’t think that would work out for the UN. That’s why most international bodies rely on voluntary agreements. Even then there has to be motivation to enforce the agreement’s terms knowing full well it could cost millions of federal funds while other countries might not even comply with the agreement. Why sink millions into a project when other states might never do the same? To remove this issue international agencies would have to find methods to ensure all signatories of environmental treaties or agreements actively enforce its demands. A considerably difficult feat while countries hesitate to surrender their own sovereignty. Once again we’re left with a repeating cycle.

It’s important to understand you shouldn’t take this blog as the end all be all of the problems with environmental law. This is only a brief overview of two problems amongst an extensive list of them. However, I believe that if we can recognize the issues we can focus our energy on finding methods to overcome them. These problems have no easy solution, but that does not mean they’re impossible to overcome. We have the power to persuade politicians and soon enough we’ll have a hand in the very votes that elect the officials making those decisions. Change is not impossible, and to beat climate change’s legal challenges we’ll have to push for solutions.