The Urgency of the Climate Crisis

Photo of Gregory H. Smith
Gregory H. Smith
Director & Chair, Administrative Law Department and Managing Director of State Capital Office
Photo of Viggo C. Fish
Viggo C. Fish
Counsel, Administrative Law Department
Published: New Hampshire Bar News
September 21, 2022

The importance of climate change – its causes and effects – have been the subject of serious public discussion for at least three decades. During that time our ability to measure and model climate change, and evaluate and predict its consequences, has produced an increasingly clearer understanding of the existential threat it presents to life as we know it on this planet. Although unacceptable, anthropogenic contributions to what looks increasingly like a “slow-motion train wreck” have been beyond serious question for years, the urgent necessity of a collective effort on an unprecedented scale is still questioned by too many who prefer to disregard the overwhelming scientific consensus that puts this necessity beyond dispute.

The Kyoto Protocols in 1992 set the nations of the world on the path of essential cooperation. Since then, 18 nations have met those Kyoto targets. However, the long term repetition of warnings has benumbed some to the enormity of this problem and its associated dire predictions.

In 2015, nearly every country, including the United States, joined the Paris Climate Accords. Since then greenhouse gas (GHG) emissions that cause global warming have increased significantly, although the rate of increase was lower between 2010 and 2019 than the previous decade. Consider that the global emissions of CO2 in 2021 were approximately 40 Gt (gigatons). A gigaton is 1 billion tons. On our current path, the worldwide total GHG emissions will be 50% greater, or 60 Gt per year. If we do no more to restrain the generation of CO2 and other GHGs that result primarily from combustion of fossil fuels and emissions by industry, transportation, forestry, agriculture and land use changes, we can expect increasingly devastating changes in the form of much more extreme weather events, highly destructive flooding and drought, crop failures including the destruction of food supply, rise in sea level that will inundate coastal zones, submerging major cities and causing mass migration of an estimated 140 million people, with concomitant violence, political instability and conflict. In fact, in December 2021 the US Department of Defense published its plan for dealing with these unacceptable threats to national security. Department of Defense Climate Risk Analysis, October 2021.

The average surface temperature of the earth has increased about 1°C since the beginning of the Industrial Revolution in 1850.  There is a worldwide scientific consensus supporting the conclusion that we must take steps immediately to prevent that increase rising above 1.5 – 2°C. If we continue to do as we have, global warming is projected to reach or overshoot 3.2°C resulting in catastrophic conditions for the natural environment, humanity and civilization.

In Massachusetts et al. v. Environmental Protection Agency, et al., 549, U.S. 497 (2007), the Court recognized that the federal Clean Air Act authorizes the US EPA to regulate carbon dioxide and other GHGs and that the scientific community and the federal government had “reached a ‘strong consensus’ that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century…” Somewhat ironically the Court, now presumed to be dominated by conservative justices, has gone out of its way to reject EPA’s use of a vital, widely accepted tool to protect human health and the environment from climate change by offering what amounts to an advisory ruling on the 2015 Clean Power Plan (CPP) regulations that never went into effect and are being replaced by the current administration. The Court injected itself into this highly technical subject delegated by Congress to an agency equipped to handle it, by issuing a stay immediately after the CPP adoption 7 years ago, and before a challenge to it had been heard by the lower courts, something the Court had never done before. The CPP will never be enforced, and is undergoing a fulsome revision by EPA. Yet, the Court, contrary to conservative principles, announced a new doctrine to alter the settled standard of administrative agency review that should have caused the Court to defer until the agency had an opportunity to complete its work on such an enormously important matter. But, despite the Court’s activism displacing the Congress and Executive Branch by making itself the decision maker on the existential threat of climate change, progress is being made.

We know what must be done about climate change and why, but an effective, action-producing consensus has been too slow to develop in our country and only now seems to be gaining traction. The Inflation Reduction Act signed by the President this month is by far the largest, most comprehensive effort ever adopted in this country to confront the perils of climate change. It will accelerate the transformation already underway in our economy from fossil fuel energy production to low and zero emission technologies, such as battery, solar and wind systems, and stimulate development of essential new technologies. It also amended the Clean Air Act granting additional authority to EPA to address the crisis.

In the face of this problem of unique scale and effect, requiring concerted action around the globe, it is understandable that the prospect is daunting to individual citizens left to wonder what they can do about it. Yet, in several ways this crisis is producing both recognition and reaction at the regional and local level. For too long land use planning has failed to account for climate change, and has allowed the proliferation of unconsidered, impervious surfaces exacerbating the risks. Now, regional land use planning, policy and its implementation, is adjusting. Adaptation requires that infrastructure be hardened against extreme flooding events, and that effort is underway. The New Hampshire Municipal Association is disseminating guidance for this challenge to New Hampshire’s 234 cities and towns.

It has been noted by others that the recent seven consecutive days in New Hampshire of temperatures over 100°F may be regarded 20 years from now as “the good old days”.

What will be the answer when those who follow us ask us or themselves what we did about the impending climate crisis before it was too late?