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Fossil Fuel Abolition: Legal and Social Issues

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Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2016 Fossil Fuel Abolition: Legal and Social Issues Karl S. Coplan Elisabeth Haub School of Law Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Energy and Utilities Law Commons, Environmental Law Commons, Law and Economics Commons, and the Natural Resources Law Commons Recommended Citation Karl S. Coplan, Fossil Fuel Abolition: Legal and Social Issues, 41 Colum. J. Envtl. L. 223 (2016), http://digitalcommons.pace.edu/lawfaculty/1022/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. FOSSIL FUEL ABOLITION: LEGAL AND SOCIAL ISSUES Karl S. Coplan* I. Introduction ......................................................................... 225 II. The Scope of the Problem .................................................... 227 III. The Case for Fossil Fuel Abolition .................................... 230 A. The Ethical Case: Avoiding Harm ................................. 230 B. The Practical Case: Scientific Necessity ............................ 238 C. The Pragmatic Case: Realpolitik and Simplicity .......... 240 1. Wicked and Super Wicked Problems ........................... 241 2. Cultural Cognition Challenges for a Law-Based Response to Climate Change ....................................... 244 IV. Effectuating the Ban ........................................................... 246 A. Existing Statutory Authority .......................................... 247 1. Clean Air Act Section 211: Prohibition of Motor Vehicle Fuels ................................................................. 248 2. Clean Air Act Title I National Ambient Air Quality Standards ...................................................................... 249 B. New Legislation ............................................................... 253 1. Statutory Bans .............................................................. 254 a. Constitutional Authority .......................................... 255 i. Commerce Authority .............................................. 255 ii. Treaty Power ........................................................... 259 b. Constitutional Objections ......................................... 262 i. Takings .................................................................... 262 ii. Fundamental Rights ............................................... 264 c. Exceptions and Bypass Provisions ........................... 269 *Professor of Law, Pace University School of Law and Co-Director, Pace Environmental Litigation Clinic; B.A., Middlebury College, J.D., Columbia University School of Law. I would like to thank my colleagues at Pace University School of Law, as well as the participants in the 2014 Vermont Colloquium on Environmental Law Scholarship for valuable feedback on an early draft of this Article. I also would like to thank my research assistants, Cayleigh Eckhardt, Pace Law School class of 2015, and Daniel Patrick, Pace Law School class of 2016 for their tireless efforts chasing down sources. 223 224 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Vol. 41:2 C. Achieving a Fossil Fuel Ban Through Constitutional Amendment ...................................................................... 269 V. Meeting the Social-Political Challenge of a Fossil Fuel Ban: The New Abolitionism Meets the Old Abolitionism ......................................................................... 270 A. Can Law Change Culture? .............................................. 275 B. Climate Activism in the United States: The Civil Rights Model .................................................................... 278 C. The Possible Climate Activism Analogues: Law Driven Social Change Paradigms in the United States ................................................................................ 279 1. Civil Rights and Racial Equality Movement ............... 280 2. Prohibition .................................................................... 285 a. Casting Industry as Villains ..................................... 285 b. Evolution from Moderation to Prohibition, and from State-Level Response to Federal ..................... 288 c. Political Tactics ......................................................... 289 d. Pre-Commitment Strategy ........................................ 290 e. Anti-Libertarianism .................................................. 291 f. Assault on a Ubiquitous Consumer Product ............ 293 g. Failure to Internalize the Social Change Goals ...... 293 h. Moral Underpinnings of the Movement ................... 294 3. Abolition ........................................................................ 296 a. Cultural Acceptance of Slavery and Fossil Fuels .... 298 b. Relation to Mercantilism and Need for International Solution ............................................... 298 c. Evolution from Abolition to Emancipation .............. 299 d. Rhetorical Parallels in the Climate and Slavery Debates ...................................................................... 300 e. Social Movement Parallels ....................................... 301 i. Mass Petition Drives and Gatherings ................... 302 ii. Lawsuits .................................................................. 303 iii. Lobbying and Legislative Efforts ........................... 304 iv. Direct Action and Civil Disobedience .................... 304 v. Values-Oriented Social Justice Issues Framing ... 304 vi. Group Identification and Product Boycotts ........... 305 VI. Conclusion ............................................................................ 310 2016 Fossil Fuel Abolition 225 I. INTRODUCTION The scientific community agrees that release of over 565 gigatons of carbon dioxide equivalents into the atmosphere through 2050 would cause global warming in excess of the maximum tolerable level.1 The Fifth Assessment Report of the Intergovernmental Panel on Climate Change (“IPCC”) is even more pessimistic with regard to the maximum tolerable level.2 We have already burned through 570 gigatons of carbon dioxide equivalent (“CO2e”)—out of one teraton available— leaving only 430 gigatons of burnable carbon remaining.3 Ever. Currently, attempts to reduce the greenhouse gas (“GHG”) emissions rate—both domestically and globally—have focused on gradual reductions to achieve a sustainable rate by 2050. To date, these efforts have proven completely unsuccessful: carbon emissions global rates continue to increase.4 Although the IPCC has concluded that global greenhouse gas emissions must be cut between fifty and eighty percent by 2050,5 neither the now-lapsed Kyoto Protocol nor the most recent voluntary national commitments have come close.6 There is no realistic prospect that sustainable global controls on greenhouse gas emissions will be adopted in the next decade. Instead, the global community is on track to surpass the one teraton available in the next fifteen to twenty years.7 At that point, the only way to avoid climate catastrophe will be the cessation of emissions: the global abolition of fossil fuels. Abolition will be necessary, even though proven fossil fuel reserves of 8 approximately two teratons of CO2e will still be in the ground. 1. See discussion infra Part II. 2. See id.; see also IPCC, CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY, TOP LEVEL FINDINGS FROM THE WORKING GROUP II AR5 SUMMARY FOR POLICY MAKERS, https://www.ipcc.ch/report/ar5/wg2/docs/WGIIAR5_SPM_Top_Level_ Findings.pdf [https://perma.cc/B8XL-5ZGB] [hereinafter IPCC TOP LEVEL FINDINGS]. 3. See discussion infra Part II. 4. See Alex Pashley, C02 Levels Make Largest Recorded Annual Leap, NOAA Data Shows, GUARDIAN (Mar. 10, 2016, 11:34 AM), http://www.theguardian.com/ environment/ 2016/mar/10/co2-levels-make-largest-recorded-annual-leap-noaa-data- shows [https://perma.cc/N8QG-LQMZ]. 5. See IPCC TOP LEVEL FINDINGS, supra note 2. 6. See Max Paris, Kyoto Climate Change Treaty Sputters to a Sorry End, CBC NEWS (Dec. 31, 2012), http://www.cbc.ca/news/politics/kyoto-climate-change-treaty-sputters- to-a-sorry-end-1.1184986 [https://perma.cc/QUX8-UFXR]. 7. See discussion infra Part II. 8. See id. 226 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Vol. 41:2 Climate change’s scientific logic mandates that abolition will be necessary. Although the climate activism movement has only recently explicitly adopted this goal, the inexorable math of the climate problem has made this result apparent for years. Political commentators have observed that abolition is the logical endpoint of the climate conundrum and have begun to speculate about the economic dislocations involved under the mantle of “The New Abolitionism.” In 2008, Al Gore—one of the most prominent political advocates with regard to climate change—argued that fossil fuel use needed to be terminated within a decade.9 The Group of Seven (“G7”) has called to end fossil fuel use by 2100.10 Even the Saudi Arabian Minister of Petroleum and Mineral Resources has been quoted as envisioning an end to fossil fuels by mid-century.11 This Article will examine the practical, ethical, legal, and socio-political implications of fossil fuel abolition. First, the Article will consider the practical, ethical, and legal arguments in favor of fossil fuel abolition. Then, the Article will examine possible
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