This Article, adapted from the Climate Science and Law for Judges Curriculum, examines the status and viability of judicial remedies in climate change litigation. It focuses on climate cases that are seeking science-based remedies specifically related to climate mitigation (actions to reduce greenhouse gas emissions or draw down atmospheric carbon) and climate-change adaptation (actions to reduce the negative impacts of climate disruption on human and natural communities). A wide variety of remedies are explored, including injunctive relief, writ of mandamus, declaratory relief, remand, vacatur, damages, civil penalties, accounting, and award of costs and attorney fees. The Article focuses on U.S. cases, both federal and state, with some reference to key decisions rendered in other countries for comparative purposes.

In June 2022, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court announced that on “major questions” the U.S. Congress must legislate with far more clarity and specificity than previously demanded. The Court held the U.S. Environmental Protection Agency (EPA) may regulate power plant carbon emissions in traditional ways, but the novel approach taken in the Clean Power Plan required clearer authorization than Congress had provided. Six weeks later, Congress enacted the Inflation Reduction Act (IRA). Designed in anticipation of the Court’s new demands, the IRA amends the Clean Air Act to provide a clear and contemporary statement that greenhouse gases are air pollutants and to direct EPA to issue new standards; and it provides large financial incentives to defray the cost of new regulations for power companies and their customers. In May 2023, EPA proposed new standards informed by both West Virginia and the IRA. This Article surveys the evolution of judicial review standards leading up to West Virginia and critically analyzes that decision; explains how the IRA rejuvenates the regulatory path for EPA to act on climate change; and reviews EPA’s new proposed carbon pollution standards for power plants.

The Inflation Reduction Act and Federal Buy Clean Initiative have each inspired states and municipalities to regulate embodied carbon (Scope 3) using “Buy Clean” policies and legislation. Reducing embodied carbon has become mainstream, and environmental product declarations (EPDs) have surfaced as the tool. Are EPDs alone enough? Is the compliance timeline sufficient? On February 1, 2023, the Environmental Law Institute hosted a panel of experts that provided an update on Buy Clean policy, green funding, the status of carbon emissions, and a primer on EPDs. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations.