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Climate change litigation is a global phenomenon. According to a database maintained by the Sabin Center for Climate Change Law, as of February 4, 2019 a total of 1,297 climate cases had been filed in courts or other tribunals worldwide. Of these, 1,009—78 percent—were from the United States, Australia was a distant second, with ninety-eight, followed by the United Kingdom with forty-seven. No other country had as many as twenty. The cases were filed in twenty-nine countries and six international tribunals, led by the Court of Justice of the European Union, which had forty-one.

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed.

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

The law is the principal mechanism by which society resolves disputes and implements policies. For more than forty years, I have worked to use the law to address environmental problems, initially by trying to stop projects that would increase pollution and harm communities. But there are limits to what the courts can do without explicit direction from legislatures. Climate change is a prime example. Some have seen litigation as a silver bullet, but at least so far that has not been the case. Elections matter more than lawsuits. Until and unless elections bring to power a president, a Congress, and local officials who will take the necessary measures, litigation is needed to inhibit those who will try to move backwards, spur on those with good intentions, help implement the policies set by wise Congresses past, and continue the quest for redress for victims. Well-crafted laws can also lead the way to solutions.