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Democracy Defense as Climate Change Law

February 2020

Citation: ELR 10115

Author: Craig Holt Segall

In 1990, when the Clean Air Act (CAA) was last substantially amended, atmospheric carbon dioxide levels stood at about 350 parts per million (ppm). Now they are close to 414 ppm, and the U.S. Congress has not amended the CAA despite broad public support for action.The law of democracy and the law of climate change are fundamentally intertwined: how politics and law will be able to adjust to the future turns on who decides the law, and so on the health of our democracy. So far, the prognosis is mixed: a vital protest movement, active state responses, and growing economic pressure for action are balanced against powerful political actors seeking stasis and a sclerotic jurisprudence that limits democratic responsiveness. This Comment discusses the ways inequities in climate change risk and in democratic representation mirror each other, addresses the U.S. Supreme Court’s inconsistent and unhelpful jurisprudence on democracy and agency action and how it tends to reinforce this crisis of democracy, suggests alternate theories of judicial action that would better reinforce democratic responsiveness, and reflects on a broadened conceptual framework for climate law—as a legal framework fundamentally concerned with preserving equity and democracy in the face of climate change, and as a foundation for climate action.

Craig Holt Segall is an attorney for the state of California, and previously worked for an environmental nonprofit organization.

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