When societies in distress are faced with nuanced and pernicious social ills, they often respond by falling into a default posture of criminalization and incarceration. In answer to the drug epidemic, escalating homelessness, and acute mental health crises, governments- and the United States especially-seek solutions in the tried-and-true tools with which they are most familiar: police, prosecution, and prison. The result is a political philosophy that revolves around the prison, a "carceral logic" that pervades policy domains and transcends party affiliation. Climate change, which presents uniquely severe and complex problems for society, supplies a new operative arena for carceral logic. This Note urges those who subscribe to the ideals of environmental justice to take notice of this development and recognize a simple truth: carceral logic is not goodfor environmentalism. While some may consider the prosecution ofpolluters or the construction of "green"prisons to be essential elements ofprogress, the overuse of carceral machinery invites more harm than it solves. In the modern era of worsening climate conditions, policing and prosecutorial practices have stifled environmental activism and suppressed the movements of climate refugees. Dilapidated prisons expose their populations to toxins and natural disasters, and mass incarceration disenfranchises overincarcerated communities by depriving them of the resources needed to resist the creep ofmanagedpollution. The result is a fundamental and growing tension between the operations of carceral logic and the aspirations of environmental justice. Moving forward, the environmental justice movement ought to formally embrace decarceral ends and advocate for reduced reliance on the tools of the carceral state.
As climate lawsuits asserting rights-based claims have expanded in the United States over the last decade and a half, many scholars have analyzed their likelihood of success on the merits. Some have further considered the extrajudicial impacts of such cases on society more broadly. Yet a full-blown investigation into the advantages and disadvantages of this litigation approach in the context of the larger social movement to prevent climate change is absent from the academic literature. Assuming these cases have been filed in strategic effort to contribute to that movement, their strategic aspect has been undertheorized. This Article seeks to fill that gap by exploring the full range of potential impacts and risks presented by U.S. rights-based climate cases, collectively referred to here as "strategic climate rights litigation." Theoretical analysis clarifies strategic litigation's potential to achieve impacts in four separate categories: direct changes to the law through (1) preliminary and (2) final judicial pronouncements; and indirect effects on society more broadly both (3) before and (4) after a case's ultimate conclusion. Then, comparative analysis reveals that judicial conservatism and restricted enforcement capabilities limit strategic climate rights litigation's ability to contribute to large-scale-socialprogress through Category 1and Category2 courtroom rulings that directly alter the law. Ultimately, this Article argues that even when climate rights cases result in favorable courtroom decisions, their largest contribution to the broader climate movement derives from their Category 3 and Category 4 impacts on society that increase awareness, reframe narratives, and galvanize action. Shifts in the law resulting from Category 1 and Category 2 impacts are playing an important but more modest role in promoting and entrenching climate progress. All four categories of impacts are more likely to continue contributing to the wider climate movement if ongoing and future strategic climate rights litigation intentionally mitigates key risks that threaten to undermine its larger goals.
This Article explains why U.S. electric utilities are overinvesting in small, local transmission projects and underinvesting in high-voltage regional and interregional lines that would reduce congestion, improve reliability, and support state and federal decarbonization goals. The first problem is that state and federal policies create financial incentives for utilities to avoid investing in regional and interregional projects, as small lines are often exempt from rules that otherwise require competitive procurements, protect the market power of vertically integrated utilities' generation assets, and are subject to little, if any, regulatory review. The second problem is that federal regulations put utilities in a position to direct investment towards projects that protect their own interests but do not promote the general welfare. Utilities influence investment decisions both by developing the criteria to determine whether certain projects-especially reliability projects-should be constructed, and by using their governance rights to shape regional transmission policy. The result is a regulatory environment that outsources-perhaps inadvertently-responsibility for transmission planning to utilities that have both the incentive and the ability to channel investment towards projects that avoid competition, protect their generators' market power, and evade regulatory oversight. We conclude by proposing solutions that state and federal regulators could implement under current legal authority and others that would require new legislation.
This article explores the confluence oftwo seemingly contrasting models ofclimate advocacy that are, in fact, one-claims for climate regulation based on (1) governmental public trust obligations to protect the atmosphere, and (2) environmental rights held directly by members of the public. The analysis explores how climate litigants are increasingly asserting a mix of public trust principles, which assert sovereign responsibility to protect atmospheric resources for the benefit of the public, and public environmental rights to atmospheric stability that require sovereign vindication-often in the absence of more robust legal footing for climate governance. Seldom acknowledged is the fact that either formulation implies the same basic partnership between environmental rights and sovereign obligations. Legal rights and duties are always differentsides of the same coin: if a citizen has a right, then the state has an implicit duty to respect it. By the same token, if the state has an obligation to its citizens, those citizens have a right to the benefit of that obligation, and potentially to hold the state accountable. In this regard, the modern public trust doctrine, which obligates protection for the environmental values of trust resources, can itselfbe understood as a doctrine of environmental rights-perhaps even the original common law statement of environmental rights. Moreover, both trust and rights approaches showcase common themes, opportunities, and hurdles. Each offers new levers ofpublic participation, tools for speech amplification, and opportunities to reverse regulatory capture, but each is vulnerable to problems associated with vagueness, redressability, and the constitutional separation ofpowers. An emerging cohort of public trust and environmental rights litigation bears these observations out, both domestically and internationally. The article catalogs the recent wave of climate litigation relying on "trust-rights" theories domestically and internationally, including Urgenda Foundation v. Netherlands and Juliana v. United States. It reports on the state of the youth climate litigation movement while also showing how the two lines of reasoning function as reciprocal mirror-images of one another, blending the same advantages of heightened political participation with the same challenges for judicial review. The success of trust-rights causes of action in some contexts, especially in American states with explicit constitutional public trust or environmental rights provisions, has prompted American climate activists to seek to instantiate these principles more firmly into state constitutionallaw. Part I frames the turn to trust-rights advocacy as an attempt to buttress the weak federal foundations of environmental law. Part II reviews the scholarly foundations of these theories. Part III traces key climate litigation embracing these strategies internationally and domestically, focusing on Dutch, Nepali, German, Indian, and Canadian claims before turning to the checkered track record of these claims in the United States. It describes how the early U.S. atmospheric trust movement has given way to a newer generation of climate advocacy premising claims on state constitutions and considers the possibility ofa state plaintiff raising related federal claims. Part IV considers the serious challenges these approaches imply, including constitutional concerns about the separation ofpowers and strategic concerns about impact litigation. Despite these serious critiques, it concludes that these strategies cannot be casually dismissed because they represent a safety valve to address failures of the political process. These strategies also signal a potential generational divide with which the environmental movement must contend.
Over the last decade, homeowners insurance markets nationwide have experienced unprecedented instability due to climate change. These disruptions, which are likely to accelerate in the coming years, risk destabilizing real estate markets, triggering financial instability, and undermining the nation's resilience to climate change. Despite these massive stakes, federal and state reforms to date have largely failed to result in more accessible and affordable homeowners insurance coverage that promotes climate change resilience. This Article offers a new way forward, arguing that today's markets that pre-dated the 2010 passage of the Affordable Care Act (ACA), also known as Obamacare. For that reason, Obamacare offers a compelling initial template for reforming homeowners insurance markets in a time of climate change. This template begins with the principle that the federal government should play a major role in regulating homeowners insurance markets due to their national importance. However, rather than completely displacing existing state insurance regulation, federal reform should embrace a cooperative federalism model patterned on the ACA. This model would rely on federal law to establish key rules for selling, underwriting, pricing, and subsidizing homeowners insurance, while allowing states to implement and customize these rules to their local markets. Substantively, it would require homeowners insurers to offer coverage that meets comprehensive federal minimum standards and to avoid discrimination that does not plausibly promote social goals like climate change resilience. At the same time, Obamacare-based reform to homeowners insurance markets would dispense with heavy-handed state regulation of insurers' rates, instead relying on managed competition among private insurers via state-run insurance exchanges. It would also rely on progressive subsidies to ensure that coverage remained affordable for low-income purchasers. While these reforms would, of course, need to be adapted to the homeowners insurance setting, Obamacare ultimately offers a powerful and underappreciated model for ensuring that homeowners insurance markets equitably promote climate change resilience in the decades to come.
