United States of America

Environmental Law and Climate Change

Introduction

The intricate interplay between climate change and environmental law frequently takes center stage in public discussions. Climate change is influencing areas of environmental law in ways that practitioners should remain aware of and focused on. Emphasizing this influence, a recent resolution from the House of Delegates for the American Bar Association urged “lawyers to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change, and to advise their clients of the risks and opportunities that climate change provides.”[1]

Initiatives aimed at environmental protection frequently coincide with clean energy and reduced emissions objectives. Although, such alignment is not always universal and efforts addressing the impacts of climate change may clash with statutory requirements, such as those in the Clean Air Act (CAA) and the Clean Water Act. For example, environmental groups may oppose the use of prescribed burns due to their negative effects on air quality, but such fires may be necessary to reduce the risk to the environment and the public from the ravages of wildfires.[2] Other times, the CAA and Clean Water Act are essential tools for lawyers seeking to protect the planet. This was certainly the case in Massachusetts v. EPA where the Supreme Court held that carbon dioxide must be regulated as a pollutant under the CAA.[3]

Traditionally, U.S. environmental law has focused on issues arising under, inter alia, the National Environmental Policy Act, the CAA, the Clean Water Act (CWA), and the Endangered Species Act (ESA). This section outlines each of these areas of the law and their relation to climate change. Ultimately, practitioners of environmental law should be aware of the significance of climate change because their field remains one of the principal areas of the law in which climate change is confronted directly. Demand for environmental lawyers with an understanding of how climate change contributes to their work is expected to grow in the coming years. Even now, demand for environmental lawyers at top firms is growing.[4]

• The Clean Air Act can be a powerful tool for addressing climate change because in the wake of the United States Supreme Court’s decision in Massachusetts v. EPA United States Environmental Protection Agency (EPA) is authorized to regulate greenhouse gas emissions, but this authority is increasingly coming under threat from a conservative-leaning Supreme Court.
• Addressing traditional pollutants from the consumption and burning of fossil fuels goes hand-in-hand with efforts to transition to clean energy sources.
• Threats to water sources from climate change are ever present and increasing and solutions to address water scarcity in the US are actively being developed by the EPA.
• Species in the U.S. and around the globe area are threatened by climate change. The U.S. government has shown an interest in adapting important legal protections like the Endangered Species Act (ESA) to respond to changing habitats and new threats to wildlife.
• Efforts to protect important natural resources and habitat may find a home under the ESA and though Biden Administration plans to protect 30% of the countries natural land, freshwater, and open spaces by 2030.
• State and local governments are central to environmental and climate efforts in the United States. This should be a focus of lawyers concerned with achieving Net Zero.
• Environmental justice and rights for the environment also go hand in hand with efforts to address the climate crisis and this moment poses a unique opportunity to advance a justice-based approach to the environment.

Clean Air

The Clean Air Act (CAA) and climate change are intimately linked. When enacted in 1970, one of the CAA’s primary focuses was to address criteria air pollutants (e.g., nitrogen oxides (NOx), sulfur dioxides (SO₂) from a diverse array of pollution sources which formed to cause visible smog in many United States’ cities and industrial centers.[5] Under the CAA, EPA is required to regulate the emission of pollutants that “endanger public health and welfare.”[6] At the inception of the CAA, greenhouse gases were not regulated by EPA. However, in Massachusetts v. EPA, the Supreme Court held that CO2 and other greenhouse gas emissions are pollutants regulated under the CAA and that the EPA was required to consider whether CO2 emissions endangered public health.[7]

In 2009, the EPA determined that greenhouse gas (GHG) emissions endangered public health and welfare, and that GHG emissions from new motor vehicles and new motor vehicle engines were contributing to air pollution that endangers public health and welfare.[8] Following this determination, the EPA began to develop regulations on GHG emissions from new motor vehicles and new motor vehicle engines, as well as stationary sources. This is just one example of how the CAA has evolved from its inception to encompass GHG emissions and contributes to the fight against climate change.

The Massachusetts v. EPA decision made the CAA a powerful tool for the regulation of greenhouse gas emissions.[9] This creates a clear overlap between the CAA and ongoing, more recent and innovative efforts to address climate change. Some interesting provisions from the CAA include Sections 111 and 115. Section 115 of the CAA enables the U.S. to work with other nations to address transboundary air pollution, and can be invoked when the state level emissions would endanger public health in other countries so long as those other countries have reciprocal agreements in place with the United States.[10] Some view this provision of the CAA as a path towards addressing international emissions reduction commitments under existing environmental law. Additionally, Section 111 of the CAA has been subject to much attention because it authorizes the EPA to regulate performance standards for stationary sources.[11] This means that it is particularly relevant to regulating emissions from power plants.

EPA’s efforts to regulate power plant emissions spanning three presidential administrations following Massachusetts v. EPA have faced repeated legal challenge. This led to the Supreme Court decision in West Virginia v. EPA which curtailed the agency’s ability to cap CO₂ emissions for power plants without a clear delegation of that authority from Congress.[12] This is part of a line of cases that have come before the Supreme Court that, some argue, indicate an unwillingness, on the part of the Supreme Court, to continue to apply the CAA as broadly as Massachusetts v. EPA once promised.[13] Congressional action may be necessary to further expand EPA’s authority to regulate GHG emissions and climate change under the CAA.

The CAA and associated EPA regulations can contribute to lessening effects of climate change. For instance, significant progress has been made in reducing sources of NOx and SO2, which have also resulted as a co-benefit in the significant reduction of pollutants that have significant global warming potential.[14]

Water

It will come as little surprise that climate change impacts water quality and water availability in the United States. For example, prolonged periods of extreme heat can cause abnormal ice melt and the depletion of existing water supplies, or extreme rains, which can cause flooding and contamination of water supplies.[15] This can have far ranging impacts on the volume of available freshwater sources. This has significant consequences for important species of flora and fauna as well as local communities that rely on those water sources.[16] As climate-related weather events intensify, the number of significant and complex threats to the quality of drinking water and the health of aquatic ecosystems will likely also increase. Like with so many issues, climate change promises to make already challenging water issues significantly more difficult.

In recent years, the EPA has developed a number of adaptation and mitigation policies designed to address climate change impacts on water resources. Some of these solutions are captured in the EPA’s “Green Infrastructure Program” which seeks to promote and integrate the use of green infrastructure into the EPA’s planning efforts to help implement projects that build climate resilience.[17] The Water Infrastructure Improvement Act[18] defines green infrastructure as “the range of measures that use plant or soil systems, permeable pavement or other permeable surfaces or substrates, stormwater harvest and reuse, or landscaping to store, infiltrate, or evapotranspirate stormwater and reduce flows to sewer systems or to surface waters.”[19]

In practice, the types of ways that green infrastructure has been used to address climate change impacts includes the use of bioretention strategies, which take advantage of water-tolerant vegetation to filter water before it enters a drain and soaks into the ground. Other strategies include the construction of blue roofs which are designed to retain water allowing it to evaporate after a storm or enter the water treatment infrastructure over a longer period of time without overwhelming treatment infrastructure,[20] and enhancing and expanding existing wetlands, or restoring wetlands in areas they once existed — can also be effective mitigation strategies for coping with increased water runoff due to climate change.[21] This last proposed solution, enhancing and expanding existing wetlands or restoring wetlands, is an important climate solution because wetlands are known to be particularly efficient carbon sinks, storing vast amounts of carbon and thereby helping to mitigate climate change.[22] Many of these solutions begin with assessing the climate vulnerability of a given area and then creating customized solutions to deal with threats to water quality. Lawyers will play a significant part of addressing and resolving these issues going forward. For example, lawyers may work with clients adapt to increasing threats to water quality resulting from climate change by evaluating funding opportunities provided in the Inflation Reduction Act, which among other things, includes investments in climate resiliency, replacing lead pipes, and addressing legacy pollution.[23]

Another consideration when discussing water centers on the financial costs associated with damage caused by extreme weather events. Extreme weather events have significant adverse costs for individuals, communities, and regional economies.[24]

As climate change intensifies, extreme weather events, such as hurricanes, coastal storms and wildfires, are expected to increase and, as they increase so too will the costs associated with the loss and damages attributable to these events.[25] In that regard, a recent study published in Nature estimated that the global costs of extreme weather attributable to climate change in the last twenty years was around $143 billion USD per year.[26] Examples of significant costs associated with extreme weather events include Hurricane Ian which hit Florida in September 2022. The damage caused by flooding and Hurricane Ian’s powerful winds was estimated to have cost between $18 and $35 billion.[27] Further, an extreme weather event in Vermont in July 2023.– known as the “Great Vermont Flood,” caused destructive and significant flash flooding which impacted communities and infrastructure in the area. A 2022 study by the University of Vermont estimated that in accounting for climate change Vermont may experience just over $5 billion in flood damages over the next century.[28] The damage caused by the “Great Vermont Flood” was estimated to have produced that much damage over two days.[29]

Lawyers dealing with environmental threats and handling matters associated with these scenarios will likely be a part of answering the question of who pays for these damages? Will it be insurance companies, or the uninsured? Will the government play a major role? What about other major sources responsible for related carbon emissions? Responding to the costs of climate change will be an important question in the fight to adapt to threats of an increasingly significant scale.

Clean Water Act

The Clean Water Act (CWA)[30] establishes the basic structure for regulating discharges of pollutants into waters of the United States. It does so by requiring the development of technology-based and water-quality standards. As outlined above, climate change poses a significant threat to access to water in the United States which, some may argue, warrants a need for the EPA to ensure that the nation’s waterways are effectively regulated. However, in light of recent decisions handed down by the US Supreme Court, there are a number of constraints on the types of waterways that the EPA has the authority to regulate under the CWA.

For example, in Sackett v. Environmental Protection Agency[31]the Court was asked to consider the outer limit of the definition of “waters of the United States” (“WOTUS”). In so doing, the Court narrowed the definition of WOTUS as it extends to protection of wetlands under the CWA. The CWA generally protects certain “navigable waters,” defined as WOTUS: these are typically waters like rivers and lakes that one could conceivably swim or boat in.[32] However, the Act provides that WOTUS also “include wetlands adjacent” to traditionally navigable waters.[33] This language opens the door to protection of some, but not all, wetlands. The question before the Court in Sackett was which wetlands should be captured as WOTUS.

In considering this question, the majority stated that the dictionary definition of the term “waters” restricts the scope of wetlands covered under the Act to those that have a “continuous surface connection” that makes them “indistinguishably part of” a traditional water body.[34] In applying this definition, the Court ruled that certain wetlands were not protected under the CWA.[35] While this case did not directly address climate change, it has implications on efforts for protecting existing wetlands which play an important role, as carbon sinks, in climate adaptation and resilience. In a 2017 study, it was found that wetlands in the U.S stored the equivalent of four years of U.S carbon emissions.[36] Future degradation of wetlands may lead to the release of this stored carbon back into the atmosphere.

The Court’s limitation as to which wetlands will ultimately be protected under the CWA indicates that further efforts to use the CWA in an expansive way to address climate change directly may be stifled. That said, there is no doubt that climate change will make water issues worse, increase pollution, and lead to more significant floods and droughts. While efforts to adapt to climate change are important, efforts to address climate change by fighting legal battles to protect wetlands and other sources of carbon sequestration are also an important part of protecting water supplies in the face of an increasingly dire climate crisis.

Biodiversity and the Endangered Species Act

The Endangered Species Act of 1973 (the “ESA”) is designed to protect endangered species from threats to the habitats upon which they rely. Legal practitioners, applying the ESA, have historically been concerned with threats posed by development that impedes access to, or impair the quality of, critical habitats. While these concerns still exist today, the risk of species extinction will significantly increase as the climate warms.[37]

Rising sea surface temperatures, increasing frequency of hurricanes, and a growing susceptibility to disease are all climate-related threats that continue to endanger sea life.[38] For example, increasing temperatures in the Arctic are jeopardizing Polar Bears (currently a threatened species under the ESA), given their reliance on Arctic sea ice for access to food and breeding sites.[39] On land, climate change is similarly having dramatic effects on habitat loss, threatening species that rely on specific ecosystems. Our changing climate has also made it easier for humans to access and further degrade ecosystems through various means, including logging and expansion of crop cultivation.[40] In addition to the tragic loss of species around the globe, increased human intervention poses a threat to ecosystem stability and can lead to many downstream consequences, from pest control to food system collapse.[41] Environmental lawyers who work with the ESA will likely see an uptick in listed species under the Act, as this biodiversity crisis continues to develop.[42]

Acknowledging the impacts that climate change is having on species and their habitats, the U.S. Fish Wildlife Service (the “Service”) revised the Regulations[43] concerning experimental populations of endangered species and threatened species under the Endangered Species Act.[44] The revised rule removed language that had  generally restricted the introduction of experimental populations to only the species’ “historical range” so as to allow for the introduction of populations into habitat outside of their historical range for conservation purposes.[45] In doing this, the Service directly referenced the effects of climate change and acknowledged that, due to the effects of climate change, it may become increasingly necessary and appropriate to establish experimental populations outside of their historical range if the species’ habitat has undergone, is undergoing, or is anticipated to undergo irreversible decline due to climate harms.[46]

The intersection between the ESA and climate change is also increasingly a topic of conversation in the court room. For example, in 2011, the United States Court of Appeals for the Ninth Circuit held that climate change impacts on habitat must be considered when deciding whether to list a species under the ESA.[47] However, scholarly opinions about the relevance of the ESA to climate change have been mixed – some commentators see the ESA as a powerful enforcement tool that can be used to regulate emissions which cause unlawful “take” of listed species; others feel the law is ill-equipped to tackle climate change impacts and not intended for such a broad purpose.[48] Regardless, courts and government agencies have begun to more regularly consider climate impacts as they implement and enforce the ESA. This has largely been done by (1) considering the effects of climate change in determining whether to list a species as threatened or endangered, and (2) determining whether activities that impact the climate can be regulated under the ESA in order to protect threatened species.[49] Historically, official actions by government regulators (including decisions about how to interpret and apply a key statute under their purview) have been given deference in the judicial review context. However, the current Supreme Court has demonstrated a disinterest in deference and a willingness to undo federal action in the climate space where it sees fit (see, e.g., West Virginia v. EPA, discussed above). Regardless, understanding the impacts of climate change will be important for practitioners navigating the ESA, given the inextricable link between the health of species and their habitats.

Protecting biodiversity—a stated objective of the ESA—is itself essential in the fight against climate change. For example, oceans and carbon sinks on land (e.g., forests and marshes) absorb about half of emissions attributable to human activity.[50] Preserving the health of these ecosystems, which also support critical species, will help to mitigate the impact of warming caused by climate change. In fact, by some estimates, about one-third of the greenhouse gas emissions reductions needed globally in the next decade could be achieved by improving nature’s ability to sequester carbon dioxide emissions.[51] The ESA has the potential to be used as a tool to protect those habitats, for all of the species that rely upon them (including us).

As noted above, certain legal scholars and stakeholders see the ESA as a tool to regulate emissions which are causing unauthorized “take” of listed species (pursuant to section 9 of the Act). Thus far, arguments have focused on the idea that the “take” provision should be extended to greenhouse gas-emitting activities that contribute to climate change and thereby harm species and their habitats. This approach has not gained much traction with EPA, since the U.S. government generally interprets the prohibition to apply only when take occurs directly and intentionally.[52] That said, these sorts of creative arguments will likely gain momentum as our ability to track and link emissions to species and habitat damage advances. As is the case in other areas of climate science, proving causation continues to be a major hurdle to attribution of unauthorized take liability under the ESA. However, this hurdle will likely be surmounted as science and climate attribution research advance.[53]

Beyond the ESA, other federal legislation—such as the Marine Protection, Research, and Sanctuaries Act [54] and the National Environmental Policy Act, which regulate marine dumping, work to promote harmony between people and the environment, and protect the health of the biosphere[55]—may become increasingly important tools for lawyers looking to protect the natural world by combatting climate change. Further, through his Executive Order on Tackling the Climate Crisis at Home and Abroad, President Biden has made climate change a central focus of his presidency. The Executive Order sets a goal of conserving at least 30 percent of U.S. lands and waters by 2030.[56]

State and Local Practice

While federal environmental statutes and regulations provide important tools for reducing greenhouse gas emissions, addressing threats to critical wastewater and drinking water infrastructure, and protecting critical habitat, no discussion of the field would be complete without also discussing the role state and local governments play in environmental protection. In fact, state and local environmental protection agencies combine for a significantly larger budget, and have many more staff, than the federal government.[57] For example, environmental protection offices in the State of New York and New York City come close to rivaling the size of the federal EPA.[58] Key services like sewage treatment and water supplies are run by state and local governments. Additionally, state governments may also adopt more aggressive policies regulating the environment than the federal government. For example, this has been the case with air emission standards in many jurisdictions.[59] For instance, in California, the Air Resources Board passed regulations that require all vehicles sold in the state to be electric, hydrogen-fueled or at least plug-in hybrid by the year 2035.[60] As the impacts of climate change intensify, local and state environmental law practitioners will play a key role in the evolving landscape and assisting agencies and organization with adapting to the these environmental changes. As the federal government undergoes administration changes by way of a presidential election, or via changes to the Judiciary and Legislative branches, state and local governments will be integral in maintaining and pushing forward progressive climate solutions.

Even cities and towns have taken leadership on certain environmental issues. For example, when President Trump temporarily withdrew the U.S. from the Paris Climate Change Agreement, many states and cities responded by independently committing to achieving the goals of that agreement.[61] For instance, in September 2017, the City of New York published its climate action plan which set out how New York City’s policies would be aligned with the Paris Climate Agreement.[62] While the federal government has failed to declare a climate emergency to date, over 130 cities and towns across the U.S., including New York, Chicago, and San Francisco, have already taken that step.[63] As a more specific example, while the U.S. is without a national carbon trading system, there are two localized systems operating among states on the East Coast and in California called the Regional Greenhouse Gas Initiative and the California AB-32 Cap-and-Trade Program, respectively.[64] As another example, when it comes to eliminating emissions from buildings, municipalities play a significant role in that transition. In December 2023, the Maryland Department of the Environment published Building Energy Performance Standards which sought to limit greenhouse gas emissions from identified buildings.[65]

Rights and personhood for nature

Granting legal personhood to nature would ensure that living elements of the environment have legal standing in our courts.[66] This would generate new opportunities to bring legal arguments before agencies and courts. Globally, legal actions seeking these rights have included fights over rights for the Atrato River in Columbia and personhood rights for the Whanganui river in New Zealand. There have also been pushes to enshrine rights for nature in the constitutions of Ecuador, Bolivia and Uganda.[67]

In the U.S. the recent legal victory in Held v. Montana is in alignment with some of these goals. In that case, 16 young people sued the state seeking recognition of their right to a healthy environment under the Montana constitution.[68] Our Children’s Trust, a nonprofit focused on these kinds of legal arguments supported the plaintiffs in the case and is currently involved with many similar efforts across the United States.[69] This legal victory has the potential to spur additional such cases creating a new avenue for protection of the environment through a rights-based framework. Legal victories here have a promising potential to drive new government action on climate change. Our Children’s Trust is also spearheading Juliana v. United States which is a national level case seeking similar rights.[70]

[1] See ‘Resolution 111‘ (American Bar Association House of Delegates Resolution, August 2019) <https://www.americanbar.org/content/dam/aba/directories/policy/annual-2019/111-annual-2019.pdf> accessed 13 May 2024.

[2] See Eleanor Cumming, ‘Environmental Law is Getting in the Way of Climate Action‘ (The Wired, 22 September 2021) <https://www.wired.com/story/environmental-law-climate-action-regulation-policy/> accessed 13 May 2024.

[3] Massachusetts v. EPA, 549 U.S. 497 (2007).

[4] Abigail Adcox, ‘Big Law Sees Growing Revenue in Environmental Law as Biden Administration Prioritizes Climate Action‘ (The National Law Journal, 17 April 2023) <https://www.law.com/nationallawjournal/2023/04/17/big-law-sees-growing-revenue-in-environmental-law-as-biden-administration-prioritizes-climate-action/?slreturn=20240413092706> accessed 13 May 2024.

[5] ‘Clean Air Act‘ 42 U.S.C. §§ 7401 et seq. Ch 85; see also ‘The Clean Air Act in a Nutshell: How It Works‘ (U.S. Environmental Protection Agency, 22 March 2013) <https://www.epa.gov/clean-air-act-overview/clean-air-act-nutshell-how-it-works> accessed 13 May 2024.

[6] Massachusetts v. E.P.A., 549 U.S. 497, 1 (2007).

[7] Ibid, 25.

[8] ‘Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Proposed Rule‘ (U.S. Environmental Protection Agency, 74 Fed. Reg. 18886, 24 April 2009).

[9] See Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

[10] ‘International air pollution‘ (42 U.S. Code § 7415).

[11] ‘Standards of performance for new stationary sources‘ (42 U.S. Code § 7411).

[12] West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).

[13] Nathan Richardson ‘The Rise and Fall of Clean Air Act Climate Policy‘(Resource, 15 June 2020) <https://www.resources.org/archives/rise-and-fall-clean-air-act-climate-policy/?gclid=EAIaIQobChMInO_nu5KWgQMVuhWzAB1Kqwj7EAAYASAAEgJ_bfD_BwE> accessed 13 May 2024.

[14] Lara Hansen & Christopher R.Pyke, ‘Climate Change and Federal Environmental Law‘ (Sustainable Development Law & Policy, Vol. 7:2,Winter 2007)

[15] ‘Global Warming and the Loss of Clean Water Act protections‘ (National Wildlife Federation) <https://www.nwf.org/~/media/PDFs/Water/Global%20Warming%20and%20the%20Loss%20of%20Clean%20Water%20Act%20Protections_Rulemaking.ashx> accessed 13 May 2024.

[16] Ibid.

[17] See s. 519 of the Clean Water Act which requires the EPA to promote the use of green infrastructure and to coordinate the integration of green infrastructure into the EPA’s permitting and enforcement actions, planning efforts, research, technical assistance, and funding guidance. For more general information also see ‘Green Infrastructure Program‘ (United States Environmental Protection Agency) <https://www.epa.gov/climate-change-water-sector/green-infrastructure-program> accessed 13 May 2024.

[18] See the Water Infrastructure Improvement Act (33 U.S.C 1251) which inserted the definition of “green infrastructure” into s. 502(27) into the Federal Water Pollution Control Act (33 U.S.C. 1362).

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] A carbon sink is anything that absorbs more carbon from the atmosphere than it releases. See e.g. A. Nahlik & M.S. Fennessy, ‘Carbon Storage in US wetlands‘ (Nature communications 7, 13835, 2016) and ‘Coastal Blue Carbon‘ (National Oceanic and Atmospheric Administration) <https://oceanservice.noaa.gov/ecosystems/coastal-blue-carbon/> accessed 13 May 2024.

[23] The IRA introduces several new grant programs that address air pollution, greenhouse gas emissions, and other legacy pollution, including, the Environmental and Climate Justice Block Grants, The Neighborhood Access and Equity Grants and Grants to Reduce Air Pollution at Ports.

[24] Rebecca Newman & Ilan Noy, ‘The global costs of extreme weather that are attributable to climate change‘ (Nature Communications 14, 6103, 2023).

[25] ‘Attributing extreme weather to climate change‘ (Carbon Brief) <https://www.carbonbrief.org/mapped-how-climate-change-affects-extreme-weather-around-the-world/> accessed 13 May 2024.

[26] Newman & Noy (2023).

[27] Brenda Richardson, ‘Total Flood And Wind Losses From Hurricane Ian Range From $41 Billion To $70 Billion‘ (Forbes, 06 October 2022) <https://www.forbes.com/sites/brendarichardson/2022/10/06/total-flood-and-wind-losses-from-hurricane-ian-range-from-41-billion-to-70-billion/?sh=4f68adab2a92> accessed 13 May 2024.

[28] Mary Kueser et al, ‘Vermont Flood Costs Could Exceed $5.2 Billion‘ (The University of Vermont Gund Institute for Environment, 10 January 2022) <https://www.uvm.edu/news/gund/vermont-flood-costs-could-exceed-52-billion> accessed 13 May 2024.

[29] Brian K Sullivan, ‘Floods in US Northeast Forecast to Bring $5 Billion in Damages‘ (Bloomberg UK, 11 July 2023) <https://www.bloomberg.com/news/articles/2023-07-11/floods-in-us-northeast-forecast-to-bring-5-billion-in-damages> accessed 13 May 2024.

[30] 33 U.S.C. §1251 et seq. (1972).

[31] Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).

[32] 33 U.S.C. §1251 et seq. (1972), s. 501.

[33] Ibid, §1344 (g).

[34] Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), [1].

[35] Ibid.

[36] Nahlik & Fennessy (2016).

[37] See e.g. ‘Fact Sheet – Biodiversity’ (IPCC Sixth Assessment Report, Working Group II, November 2022) <https://www.ipcc.ch/report/ar6/wg2/downloads/outreach/IPCC_AR6_WGII_FactSheet_Biodiversity.pdf> accessed 13 May 2024.

[38] Ibid.

[39] Constable, A.J., S. Harper, J. Dawson, K. Holsman, T. Mustonen, D. Piepenburg, and B. Rost, 2022: Cross-Chapter Paper 6: Polar Regions. In: Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the IPCC. <https://www.ipcc.ch/report/ar6/wg2/chapter/ccp6/> accessed 13 May 2024, p. 2327.

[40] Jedediah Brodie & James Watson, ‘Human responses to climate change will likely determine the fate of biodiversity‘ (Proceedings of the National Academy of Sciences of the United States of America, 15 February 2023)  <https://www.pnas.org/doi/10.1073/pnas.2205512120> accessed 13 May 2024.

[41] ‘What is the Biodiversity Crisis?‘ (Earth Justice, 04 April 2022) <https://earthjustice.org/feature/biodiversity-crisis> accessed 13 May 2024.

[42] ‘Fact Sheet – Biodiversity’ (IPCC Sixth Assessment Report, Working Group II, November 2022).

[43] Being the Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations 88 FR 42642.

[44] Endangered Species Act of 1973 (16 U.S.C. 1531-1544).

[45] ‘Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations‘ (Final Rule, 7 March 2023) < https://www.federalregister.gov/documents/2023/07/03/2023-13672/endangered-and-threatened-wildlife-and-plants-designation-of-experimental-populations> accessed 13 May 2024.

[46] See: ‘Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations‘ (Final Rule, 7 March 2023) < https://www.federalregister.gov/documents/2023/07/03/2023-13672/endangered-and-threatened-wildlife-and-plants-designation-of-experimental-populations> accessed 13 May 2024.  Also see: ‘Department of the Interior Proposes Expanding Conservation Technique as Climate Change Threatens Greater Species Extinction‘ (U.S. Department of the Interior, 06 June 2022) <https://www.doi.gov/pressreleases/department-interior-proposes-expanding-conservation-technique-climate-change-threatens> accessed 13 May 2024.

[47] See, e.g., Greater Yellowstone Coalition v. Servheen, 665 F.3d 1015 (9th Cir. 2011).

[48] Linda Tsang, ‘The Endangered Species Act and Climate Change: Selected Legal Issues‘ (Congressional Research Service, R45926, 20 September 2019) <https://sgp.fas.org/crs/misc/R45926.pdf> accessed 13 May 2024.

[49] Ibid.

[50] ‘Biodiversity – our strongest natural defense against climate change‘ (United Nations Climate Action) <https://www.un.org/en/climatechange/science/climate-issues/biodiversity> accessed 13 May 2024. 

[51] Ibid.

[52] Tsang (2019).

[53] Matthew Gerhart, ‘Climate Change and the Endangered Species Act: The Difficulty of Proving Causation‘ (Ecology Law Quarterly 36, no. 1, 2009); Rupert Stuart-Smith et al, ‘Filling the evidentiary gap in climate litigation‘ (Nature Climate Change 11, 2021).

[54] ‘Environmental Law: A Beginner’s Guide‘ (Library of Congress Research Guides) <https://guides.loc.gov/environmental-law/federal-laws> accessed 13 May 2024.

[55] Ibid.

[56] Helen O’Shea et al, ‘Biden Administration Lays Out 30×30 Vision to Conserve Nature‘ (Natural Resources Defense Council, 06 May 2021) <https://www.nrdc.org/bio/helen-oshea/biden-administration-lays-out-30×30-vision-conserve-nature> accessed 13 May 2024.

[57] Steve Cohen, ‘The State and Local Role in Protecting America’s Environment‘ (State of the Planet, Columbia Climate School 16 July 2018) <https://news.climate.columbia.edu/2018/07/16/state-local-role-protecting-americas-environment/> accessed 13 May 2024.

[58] Ibid.

[59] Paul Tanaka et al ‘Environmental Law and Practice in the United States: Overview‘ (Kirkland & Ellis, 21 May 2021) <https://www.kirkland.com/publications/article/2021/05/environmental-law-and-practice-in-the-united-state> accessed 13 May 2024.

[60] Gavin Newsom, ‘Executive Order N-79-20‘ (Governor of California, 23 September 2020).

[61] ‘State and Local Regulation of Climate Change‘ (The Regulatory Review, 19 February 2018) <https://www.theregreview.org/2018/02/19/state-local-regulation-climate-change/> accessed 13 May 2024.

[62] ‘1.5° Aligning New York City with the Paris Climate Agreement‘ (NYC Mayor’s office of Climate & Environmental Justice) <https://climate.cityofnewyork.us/reports/1-5-aligning-new-york-city-with-the-paris-climate-agreement/> accessed 13 May 2024. 

[63] Tanaka et al (2021).

[64] Ibid.

[65] ‘Maryland’s Climate Pollution Reduction Plan‘ (Maryland Secretary for the Environment, 28 December 2023) <https://mde.maryland.gov/programs/air/ClimateChange/Maryland%20Climate%20Reduction%20Plan/Maryland%27s%20Climate%20Pollution%20Reduction%20Plan%20-%20Final%20-%20Dec%2028%202023.pdf> accessed 13 May 2024.

[66] See e.g. Christopher D. Stone, ‘Should Trees Have Standing?: Law, Morality, and the Environment‘ (Oxford University Press, 2010, originally published 1972).

[67] ‘Environmental Law and Climate Change’ (Centre for Climate Engagement) <https://climatehughes.org/law-and-climate-atlas/environmental-law-and-climate-change/> accessed 13 May 2024.

[68] Meher Bhatia, ‘Held v. Montana Is a Historic Victory for Climate Action—but Also Human Rights‘ (The Nation, 16 August 2023) <https://www.thenation.com/article/archive/held-v-montana-human-rights-climate-change-lawsuit/> accessed 13 May 2024.

[69] Ibid.

[70] Ibid.