Remaking the World to Save it: Applying U.S. Environmental Laws to Climate Engineering Projects

Abstract

Given the high levels of greenhouse gases already in the atmosphere and the likelihood of growing emissions in the future, even aggressive limits on greenhouse gas emissions might ultimately fail to prevent dangerous climate disruptions. To prepare for this risk, some scientists have started to explore techniques that directly influence or control global and regional climatic systems to offset climate change effects. As climate engineering research expands, U.S. environmental law could become an important first forum for efforts to control nascent climate engineering technologies. Federal and state agencies should start now to map out regulatory strategies and guidance for potential requests to authorize climate engineering experiments or to control objectionable projects. Climate engineering will also offer an unprecedented test of the scope of federal judicial power and the institutional competence of U.S. courts to review environmental projects designed to have a literally global impact. Prior climate change tort actions have tested the ability of courts to ascribe responsibility or assign liabilities to individual parties for damages caused by widely dispersed global activities. Climate engineering presents the mirror image of climate change public nuisance actions: rather than affixing responsibility for a share of a global phenomenon, lawsuits against climate engineering projects can pursue a clearly identifiable small number of parties who expressly and intentionally attempt to create global climate effects. Federal courts in particular may need to review key doctrines (including standing, political question, redressability and proximate causation) to account for a potential role as the domestic court system of first resort for legal challenges to global environmental remediation projects.