...First, the role of climate science in the courts is changing fast. "Decisions in more recent cases have tended to explore climate science more thoroughly than in earlier cases." Increasingly, litigants are forcing federal agencies to incorporate climate science in decision-making — regardless of who's the boss. From 2006 to 2016, climate science was used in 192 cases involving the U.S. Clean Air Act, 118 cases for the National Environmental Policy Act and 106 cases involving the Endangered Species Act. During this interval, climate science was either central to the legal decision or played an important role in approximately half of all cases involving the Endangered Species Act or the National Environmental Policy Act. For example, in cases involving biodiversity and extinction, habitat changes caused by climate shifts became legally relevant. In cases dealing with environmental impact analysis, decisions were thrown out that were judged "arbitrary or capricious" for insufficiently considering climate science. For cases associated with energy policy, the role of climate change became part of infrastructure decisions. A second principal point made by the authorsis that novel legal theories are being introduced into jurisprudence. One example involves the nonprofit Our Children's Trust, which argues that "U.S. states are responsible for protecting children from the impacts of climate change." The courts are agreeing that babies being born today have a constitutional right to a livable planet. The final point is that litigation will increase. The floodgates have opened for a "rapidly building wave" of climate litigation. Under normal circumstances, I would abhor this development, because excessive litigation is a drain on our economy and a prolonged pain in the neck. But perhaps that's what's needed to get the executive and legislative branches of government moving seriously on the uber issue of our times...more
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