United States: Is Fossil Fuel Running On Empty? The Implications Of Climate Change Mitigation

In Short

The Situation: Proposed resolutions in Congress and an injunction request in a Ninth Circuit case both seek significant reductions in fossil fuel use throughout the economy.

The Result: In the near term, it is easy to predict that restrictions on the use of fossil fuel will not be adopted into federal law through legislative or judicial action. But these developments are a harbinger of more serious efforts that could be on the horizon.

Looking Ahead: The potential impact on business operations of a substantial, federally mandated reduction in fossil fuel use varies from company to company. It would be an existential threat to some and perhaps a catalyst for growth to others. In either case, the possibility cannot be ignored in business, political, and legal planning efforts.

The introduction of the Green New Deal resolution in Congress and a recent preliminary injunction request in a federal circuit court case are the latest challenges to how the United States currently uses and develops fossil fuels. It is easy to predict that none of the changes contemplated in the Green New Deal or in the injunction request are likely to become law in the near term because of the current political makeup in Washington and the current composition of the Supreme Court. But a future administration with different priorities and working in concert with a friendly Congress could be encouraged to seek laws and rules that would have the effect of reducing fossil fuel use in a very significant way.

The Green New Deal resolutions introduced in both houses of Congress last month propose that increases in global temperature can be kept below 1.5° C through a 40 percent to 60 percent reduction in greenhouse gas emissions by 2030 (compared to 2010 emission levels) and that net zero global greenhouse gas emissions can be achieved by 2050 (H. Res 109; S. Res 59; S. Joint Res. 8). The Green New Deal includes a broader goal of having 100 percent of the power demand in the United States supplied with renewable, zero-emission energy sources and of having greenhouse gas emissions eliminated from industry and transportation sectors "as much as technologically feasible." It calls for all buildings to be upgraded to maximum energy efficiency, including electrification, and proposes that the agricultural sector achieve reduced emissions through family and sustainable farming.

The Green New Deal also identifies various social goals that it proposes to promote at the same time climate change is addressed. For example, it calls for a 10-year national mobilization to provide millions of jobs, create prosperity, and counteract "systemic injustices" to "frontline and vulnerable communities." It seeks to ensure that "every business person is free from unfair competition and domination by domestic or international monopolies."

Meanwhile, in the Ninth Circuit a group of 21 youths and a former NASA scientist, who is purporting to represent future generations, are seeking an injunction to prohibit the federal government from authorizing: (i) coal mining on federal public lands; (ii) offshore oil and gas projects on the Outer Continental Shelf; and (iii) development of new fossil fuel infrastructure (Urgent Motion Under Circuit Rule 27-3(b) for Preliminary Injunction, Juliana v. U.S., Docket #21, Filed Feb. 7, 2019 (9th Cir. Case No. 18-36082)). The plaintiffs are asking the Court to act on the injunction request before March 20, 2019, when a Gulf of Mexico oil lease sale is scheduled. An assertion that climate change is a state-created danger that violates the Constitutional rights of the plaintiffs forms the basis for the motion.

The Juliana case is in the Ninth Circuit as an interlocutory appeal of an Oregon district court's denial of the government's motion to dismiss the case before trial. The district court was prepared to move forward with a trial on the state-created danger theory and on claims asserting government violations of the public trust doctrine and of a purported Constitutional right to a stable climate. The plaintiffs told the district court that if they succeeded on the merits at trial, they would ask for an order requiring the federal government to "prepare and implement a national remedial plan to stabilize the climate system." Once the Ninth Circuit took the appeal, the plaintiffs upped the ante with the injunction motion—a procedural step not taken in the lower court.

A judicially supervised, national remedial plan for climate change is not going to become the law of the land in the near term. A Pennsylvania district court has squarely rejected the same legal theories presented to the Ninth Circuit. In doing so, the Pennsylvania court stated its view that the Oregon district court "certainly contravened or ignored longstanding authority" by allowing the case to continue (Clean Air Council v. U.S., slip op., Case No. 17-4977 (E.D. Pa. Feb. 19, 2019)). The Department of Justice, not surprisingly, is highlighting the Pennsylvania decision in its Ninth Circuit briefing (Appellants' Opposition to Motion for Preliminary Injunction Pending Appeal, Juliana v. U.S., Docket #32, Filed Feb. 19, 2019 (9th Cir. Case No. 18-36082)). If the government loses in the Ninth Circuit, the Supreme Court will likely have the final say on whether these plaintiffs have standing to sue, whether the asserted Constitutional rights even exist in the context of climate change, and whether the claims raise political questions that are beyond the power of the courts to address. Indeed, the Supreme Court already commented that the claims seem remarkably broad when it put pretrial activity on hold for a short time in 2018 in response to a mandamus request to give the Ninth Circuit a chance to get involved. (For a complete summary of these proceedings in the Juliana case, see the Winter 2019 edition of The Climate Report.)

The Green New Deal and court actions, such as the request for an injunction against fossil fuel project approvals, would have been unthinkable 12 years ago when the Supreme Court decided that greenhouse gases could be regulated under the Clean Air Act (Massachusetts v. EPA, 549 U.S. 497 (2007)). The serious attention that the Green New Deal resolutions and the Ninth Circuit case have received is a sign of how far the discussion has progressed, even if an economy-wide reduction in fossil fuel use always was a long-term, but unspoken goal of those who are now seeking it.

The Green New Deal resolutions, combined with the recent injunction motion, crystallize the holy grail for those who approach climate change as an existential threat to their communities. Previously, they were content to seek incremental measures, such as reducing or eliminating coal-fired power generation, increasing motor vehicle fuel efficiency requirements, and encouraging investments in mass transit and electric vehicles. Now, they are openly seeking the wholesale elimination of fossil fuels from large sections of the economy.

It is easy to predict that this approach will not be adopted into federal law through legislative or judicial action in the near term. But it is a harbinger of serious efforts to achieve these outcomes that could be on the horizon given that the Green New Deal resolutions have received early support from a number of presidential candidates. Is an executive declaration of "national emergency" on climate change so far-fetched?

The potential impact on business operations of a successful effort to reduce fossil fuel use significantly varies from company to company. It would be an existential threat to some and perhaps a catalyst for growth to others. In either case, the possibility cannot be ignored in business, political, and legal planning efforts.


Three Key Takeaways

  1. Recent developments in climate change policy, such as the introduction of Green New Deal resolutions in Congress last month and a request for an injunction against federal fossil fuel project approvals, would have been unthinkable 12 years ago when the Supreme Court decided that greenhouse gases could be regulated under the Clean Air Act.
  2. Those who approach climate change as an existential threat to their communities are now seeking the wholesale elimination of fossil fuels from large sections of the economy in court and in Congress.
  3. It is easy to predict that these efforts will not be successful in the near term, but serious efforts to achieve these outcomes could be on the horizon and cannot be ignored in business, political, and legal planning efforts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions