PROTECTING AMERICA FROM ITSELF: CAN THE EMERGING PRINCIPLE OF NON-REGRESSION HELP THE UNITED STATES RESOLVE THE EXISTENTIAL THREAT OF CLIMATE DISASTER?

The non-regression principle is a budding international jurisprudential precept holding that legal protections of public welfare and individual rights, once established, cannot be subjected to erosive rollbacks. Over the last decade, several international jurists began to apply the doctrine in the m...

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Bibliographic Details
Published in:Boston College law review 2023-01, Vol.64 (8), p.2089-2129
Main Author: Sullivan, Shane
Format: Article
Language:English
Subjects:
Agreements
Air pollution
Biden, Joseph R Jr
Carbon
Climate change
Earth
Emission standards
Emissions
Energy conservation
Energy industry
Energy policy
Environmental law
Environmental policy
Environmental protection
Environmental regulations
Greenhouse gases
Human rights
International law
Paris Agreement
Political activism
Presidents
Provisions
Regulation
Statutes
Supreme Court decisions
Supreme courts
Threats
Trump, Donald J
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Summary:The non-regression principle is a budding international jurisprudential precept holding that legal protections of public welfare and individual rights, once established, cannot be subjected to erosive rollbacks. Over the last decade, several international jurists began to apply the doctrine in the more specific context of environmental law. France has explicitly incorporated the principle by statute, while Brazil has similarly adopted it by Supreme Court decision. Implementation of environmental non-regression comes at a crucial time. The non-regression principle is a promising tool for achieving climate solutions and, given the existential threats posed by human climate disruption, implementing the principle, domestically and abroad, is of crucial importance. It is particularly critical the United States acts decisively-it is the second largest polluter on earth.An important question, then, is whether the non-regression principle could take root in the United States. This Note uses a potential methane pollution restriction as an example of how an anti-backsliding provision could realistically be made part of this nation's post-Paris Agreement efforts to limit climate change. Statutes like the Energy Policy and Conservation Act and Clean Air Act already contain limited restrictions on regression, known as anti-backsliding provisions. These are first steps, but wider implementation is necessary to achieve the goals of the 2015 Paris Agreement on climate change. Broad constitutional and regulatory adoption of the non-regression principle in the near term are likely politically impractical in the United States. A statute codifying environmental non-regression may have the necessary legal foundation to withstand political challenges in court and become a significant legal tool in achieving crucial climate and environmental protection.
ISSN:0161-6587
1930-661X