Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJan 24, 2022
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Nos. 20-1530, 20-1531, 20-1778, 20-1780
IN THE
Supreme Court of the United States
WEST VIRGINIA, ET AL.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF CLIMATE SCIENTISTS MICHAEL
OPPENHEIMER, NOAH DIFFENBAUGH,
CHRISTOPHER FIELD, STEPHEN PACALA,
DANIEL SCHRAG, AND SUSAN SOLOMON AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
FELICIA H. ELLSWORTH
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
THOMAS G. SPRANKLING
Counsel of Record
ALLISON BINGXUE QUE
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real
Palo Alto, CA 94306
(650) 858-6000
thomas.sprankling
@wilmerhale.com
ADDITIONAL CAPTIONS LISTED ON INSIDE COVER
THE NORTH AMERICAN COAL CORPORATION,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
WESTMORELAND MINING HOLDINGS LLC,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
NORTH DAKOTA,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................... iii
INTEREST OF AMICI CURIAE................................... 1
SUMMARY OF ARGUMENT........................................... 4
ARGUMENT........................................................................ 7
I.
IT IS UNEQUIVOCAL THAT HUMAN
ACTIVITY
IS
THE
CAUSE
OF
UNPRECEDENTED GLOBAL WARMING ...................... 7
A. The Greenhouse Effect Controls The
Earth’s Temperature, Which Has Been
Rising At An Unprecedented Rate .................... 7
B. The Only Convincing Explanation For
The Rapid Rise In Global Temperature
Is That Human Activity Has Altered
The
Makeup
Of
The
Earth’s
Atmosphere.......................................................... 10
II. CLIMATE CHANGE ALREADY AFFECTS
EVERY
AMERICAN
AND—WITHOUT
ACTION—ITS IMPACT ON DAILY LIFE IS
EXPECTED TO GROW IN DRAMATIC AND
NOT FULLY PREDICTABLE WAYS ............................ 15
1.
Climate Change Has Already Had
Notable Effects Across The
Country ......................................................... 15
2.
Absent Action, More Severe
Consequences Are Expected ..................... 26
III. THE UNITED STATES STILL HAS THE
OPPORTUNITY TO HELP MITIGATE THE
EFFECTS OF CLIMATE CHANGE ............................... 32
ii
TABLE OF CONTENTS—Continued
Page
CONCLUSION ................................................................. 33
iii
TABLE OF AUTHORITIES
CASES
Page(s)
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ............................................... 4, 6, 7
OTHER AUTHORITIES
Chuck, Elizabeth, How climate change primed
Colorado for a rare December wildfire,
NBC News (updated Jan. 2, 2022),
https://tinyurl.com/4n9rfjfs ....................................... 23
Climate Change, Part I: House Committee
Hearing Before the Subcommittee on
Environment (Apr. 9, 2019) (Testimony of
Dr.
Michael
Oppenheimer),
https://
tinyurl.com/2rxv2pfh ....................................... 7, 12, 13
Climate Change Science: Hearing Before the
House Committee on Science, Space, and
Technology (Mar. 12, 2021) (Testimony of
Dr. Michael Oppenheimer), https://tiny
url.com/3b5jftfj ............................................... 17, 18, 27
Congressional Research Service, Wildfire
Statistics
(updated
Oct.
4,
2021),
https://tinyurl.com/2p857kth..................................... 23
Crozier, Lisa G., et al., Climate change
threatens Chinook salmon throughout
their life cycle, 4 Comms. Biology 1 (2021),
https://tinyurl.com/2p92tsm5 .................................... 25
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Davenport, Frances V. & Noah S. Diffenbaugh,
et
al.,
Contribution
of
historical
precipitation change to US flood damages,
118 PNAS 1 (2021), https://tinyurl.com/
25d3szt5 ....................................................................... 19
Destin, Dale C.S., et al., National Oceanic &
Atmospheric Administration, The Argo
Revolution (updated July 9, 2021),
https://tinyurl.com/2x7d85d3 .................................... 11
Diffenbaugh, Noah S., et al., Quantifying the
influence
of
global
warming
on
unprecedented extreme climate events,
114 PNAS 4881 (2017), https://tinyurl.com/
n3dd85ak ...................................................................... 16
Diffenbaugh, Noah S. & Christopher B. Field,
et al., Atmospheric variability contributes
to increasing wildfire weather but not as
much as global warming, 118 PNAS 1
(2021), https://tinyurl.com/46nrucfp......................... 22
EPA, Climate Change Indicators: Heat Waves
(updated Apr. 2021), https://tinyurl.com/
ye23jv82 ....................................................................... 16
EPA, Climate Change Indicators: U.S. and
Global Temperature (updated Apr. 2021),
https://tinyurl.com/4jtcknad ..................................... 11
EPA,
Multi-Modal
Framework
for
Quantitative Sectoral Impacts Analysis:
A Technical Report for the Fourth
National Climate Assessment (May 2017),
https://tinyurl.com/2p8fnrw3 .................................... 25
v
TABLE OF AUTHORITIES—Continued
Page(s)
Fischels, Josie, PHOTOS: The RecordBreaking Heat Wave That’s Scorching The
Pacific Northwest, NPR (June 29, 2021),
https://tinyurl.com/3pncwwxt................................... 17
Freedman, Andrew, Climate scientists grapple
with wildfire disaster in their backyard,
Axios (Jan. 3, 2022), https://tinyurl.com/
2p8zbyux ...................................................................... 23
Global Carbon Project, Global Carbon Budget
(Nov. 4, 2021), https://tinyurl.com/9zh44cd8........... 32
Gray, Ellen, Global Climate Change Impact on
Crops Expected Within 10 Years, NASA
Study Finds, NASA (Nov. 2, 2021),
https://tinyurl.com/285m2rvh ................................... 28
Intergovernmental Panel on Climate Change,
Sixth Assessment Report, Headline
Statements (Aug. 2021), tinyurl.com/
5n878suk ........................................................................ 4
Intergovernmental Panel on Climate Change,
Climate Change and Land, Summary for
Policymakers (2020), https://tinyurl.com/
2p9deevt....................................................................... 28
Intergovernmental Panel on Climate Change,
Second Assessment: Climate Change 1995
(1996), https://tinyurl.com/yckv5mtb....................... 13
Intergovernmental Panel on Climate Change,
Third Assessment: Climate Change 2001
(first published 2001), https://tinyurl.com/
32su34ku ...................................................................... 13
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Intergovernmental Panel on Climate Change,
Fourth Assessment: Climate Change 2007,
Summary for Policymakers (first published
2007), https://tinyurl.com/2p8dn2ze ......................... 13
Intergovernmental Panel on Climate Change,
Fifth Assessment: Climate Change 2014,
Summary for Policymakers (first published
2013), https://tinyurl.com/2p8djehj .......................... 13
Intergovernmental Panel on Climate Change,
Sixth Assessment: Climate Change 2021,
Summary
for
Policymakers
(2021),
https://tinyurl.com/y45v8mjj ........................... passim
Intergovernmental Panel on Climate Change,
Special Report on the Ocean and
Cryosphere in a Changing Climate, Summary for Policymakers (2019), https://
tinyurl.com/mswryzap ......................................... 11, 18
Januta, Andrea, Pacific Northwest heat wave
‘virtually impossible’ without climate
change-research, Reuters (July 8, 2021),
https://tinyurl.com/dbpec3cj ..................................... 17
Johnson, Gregory C. & John M. Lyman,
Warming trends increasingly dominate
global ocean, 10 Nature Climate Change
757 (2020) ..................................................................... 11
Lin, Ning, et al., Hurricane Sandy’s flood
frequency increasing from year 1800 to
2100,
113
PNAS
12071
(2016),
https://tinyurl.com/29kvz2c7 ..................................... 20
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Lindsey, Rebecca & Luann Dahlman,
Climate Change: Global Temperature
(updated Aug. 12, 2021), https://tiny
url.com/2xw9nfzn........................................................ 10
Lyman, John M., et al., Robust warming of the
global upper ocean, 465 Nature 334 (2010) ............. 11
Maffly, Brian, Feds tighten Colorado River
flow
at
Glen
Canyon
Dam
as
ever-shrinking Lake Powell nears critical
level, Salt Lake Tribune (Jan. 7, 2022),
https://tinyurl.com/3pry3nmr ................................... 22
Mann, Michael E., et al., Record Temperature
Streak Bears Anthropogenic Footprint,
44 Geophys. Res. Lett. 7936 (2017) .......................... 10
Meiners, Joan, Scientists see silver lining in
fed’s latest efforts to avoid ‘dead pool’ at
Lake Powell, St. George Spectrum & Daily
News
(updated
Jan.
12,
2022)
https://tinyurl.com/3c5eck93 ..................................... 22
Mora, Camilo, et al., Global risk of deadly heat,
7 Nature Climate Change 501 (2017) ....................... 28
NASA Earth Observatory, Colorado Faces
Winter Urban Firestorm (Dec. 30, 2021),
https://tinyurl.com/a5xe5bpr .................................... 23
NASA Earth Observatory, Effects of Changing
the Carbon Cycle (June 16, 2011),
https://tinyurl.com/yckmw4a5 .................................... 8
viii
TABLE OF AUTHORITIES—Continued
Page(s)
National
Oceanic
&
Atmospheric
Administration, Charts–Climate Change:
Atmospheric Carbon Dioxide, tinyurl.com/
3rr7xmeu (visited Jan. 24, 2022)................................. 9
National
Oceanic
&
Atmospheric
Administration,
Service
Assessment:
August-September 2017 Hurricane Harvey
(June 2018), https://tinyurl.com/nhaa5eha .............. 21
National
Oceanic
&
Atmospheric
Administration, U.S. saw its 4th-warmest
year on record, fueled by a record-warm
December (Jan. 10, 2022), https://tiny
url.com/2p8tt93x ........................................................... 8
National Wildlife Federation, A Hunter’s &
Angler’s Guide to Climate Change:
Challenges, Opportunities & Solutions
(Oct. 2021), https://tinyurl.com/mrxd98uk .............. 24
Oppenheimer, Michael, et al., Sea Level Rise
and Implications for Low-Lying Islands,
Coasts, and Communities in IPCC Special
Report on the Ocean and Cryosphere in a
Changing Climate (2019), https://tiny
url.com/473nunx2........................................................ 27
Panetta, Anne M., et al., Climate Warming
Drives Local Extinction: Evidence from
Observation and Experimentation, 4 Sci.
Adv. 1 (2018), https://tinyurl.com/vc3pjs33 ............ 24
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Philip, Sjoukje Y., et al., Rapid attribution
analysis of the extraordinary heatwave on
the Pacific Coast of the US and Canada
June 2021 World Weather Attribution
(July 7, 2021), https://tinyurl.com/y29dnrvp........... 17
Schwartz, John, More Than a Third of Heat
Deaths Are Tied to Climate Change, Study
Says, N.Y Times (May 31, 2021),
https://tinyurl.com/yck4pjvm ................................... 18
Swain, Daniel, The Deadly Dynamics of Colorado’s Marshall Fire, Outside (Jan. 11,
2022), https://tinyurl.com/pe3wsjjw......................... 23
Trenberth, Kevin, et al., Hurricane Harvey
Links to Ocean Heat Content and Climate
Change Adaption, 6 Earth’s Future 730
(2018), https://tinyurl.com/bdxn2vee ....................... 20
U.S. Department of Defense, Climate Risk
Analysis (Oct. 2021), https://tinyurl.com/
yckkh5d5 ...................................................................... 30
U.S. Department of Defense, The National
Security Implications of Climate-Related
Risks and a Changing Climate (May 2015),
https://tinyurl.com/2p8ssywm .................................. 30
U.S. Global Change Research Program,
Climate Change Impacts in the United
States (2009), https://tinyurl.com/2e7dc9d2 ............ 14
U.S. Global Change Research Program,
Climate Change Impacts in the United
States (2014), https://tinyurl.com/3mj4m7ef ........... 15
x
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Global Change Research Program,
Climate Change Impacts On The
United States, Report Overview (2000),
https://tinyurl.com/5e3z3tka ..................................... 14
U.S. Global Change Research Program,
Climate Science Special Report: Fourth
National Climate Assessment, Volume I
(2017), tinyurl.com/yc5kb6bt ........................... passim
U.S. Global Change Research Program,
Impacts, Risks, and Adaptation in the
United States: Fourth National Climate
Assessment, Volume II (2018), https://tiny
url.com/ymhr5dcb .............................................. passim
U.S. Global Change Research Program,
Legal
Mandate,
tinyurl.com/2s3akhrx
(visited Jan. 24, 2022) ................................................. 12
Vicedo-Cabrera, A.M., et al., The burden of
heat-related mortality attributable to recent human-induced climate change,
11 Nature Climate Change 492 (2021) .................... 18
Wiens, John J., Climate-Related Local Extinctions are Already Widespread Among
Plant and Animal Species, 14 PLOS
Biology 1 (2016), https://tinyurl.com/
nhf2cptc ........................................................................ 24
Winter, Jonathan M., et al., Anthropogenic Impacts on the Exceptional Precipitation of
2018 in the Mid-Atlantic United States, 101
Bull. Am. Meteorological Soc’y 5 (2020),
https://tinyurl.com/2exx26wk ................................... 19
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Zhuang, Yizhou, et al., Quantifying contributions of natural variability and anthropogenic forcings on increased fire weather
risk over the western United States,
118 PNAS 1 (2021), https://tinyurl.com/
yc4marbz ...................................................................... 22
INTEREST OF AMICI CURIAE
Amici curiae are individual climate scientists who
have dedicated their careers to studying changes to the
Earth’s climate that have been caused by human activities and the broader effects of those changes.1
Amicus Michael Oppenheimer is the Albert G. Milbank Professor of Geosciences and International Affairs at Princeton University.2 He is a long-time participant in the Intergovernmental Panel on Climate
Change (“IPCC”), which won the Nobel Peace Prize in
2007. He served most recently as a coordinating lead
author on IPCC’s Special Report on the Ocean and
Cryosphere in a Changing Climate (2019), and serves
as a Review Editor of its Sixth Assessment Report. He
has authored over 200 articles published in academic
journals and co-authored two books, Dead Heat: The
Race against the Greenhouse Effect, and Discerning
Experts: The Practices of Scientific Assessment for
Environmental Policy. He is a Heinz Award winner
and a Fellow of the American Association for the Advancement of Science.
Amicus Noah S. Diffenbaugh is the Kara J Foundation Professor and Kimmelman Family Senior Fellow
at Stanford University. He has served as a lead author
for the IPCC. He is also an elected Fellow of the
1
No counsel for a party authored this brief in whole or in part,
and no entity or person other than amici curiae and their counsel
made a monetary contribution intended to fund the preparation or
submission of this brief. Counsel for all parties have consented to
the filing of this brief.
2
Professor Oppenheimer and his colleagues are appearing in
their individual capacities. University affiliations are listed for
identification purposes only.
2
American Geophysical Union, which has bestowed upon
him the James R. Holton Award and the William Kaula
Award. He has been recognized as a Kavli Fellow by
the U.S. National Academy of Sciences.
Amicus Christopher B. Field is the Melvin and
Joan Lane Professor for Interdisciplinary Environmental Studies at Stanford University and the Perry L.
McCarty Director of the Stanford Woods Institute for
the Environment. He co-chaired IPCC’s Working
Group II from 2008 to 2015, where he led the effort to
draft materials on climate change impacts and adaption.
He is a member of the U.S. National Academy of Sciences and the American Academy of Arts and Sciences,
and a fellow of the American Association for the Advancement of Science, the American Geophysical Union, and the Ecological Society of America. He has received the Max Planck Research Award, and the Roger
Revelle Medal.
Amicus Stephen W. Pacala is the Frederick D. Petrie Professor in Ecology and Evolutionary Biology at
Princeton University. He has chaired three expert
committees for the National Academies of Sciences,
Engineering and Medicine related to renewable energy,
carbon emissions and mitigation, and the transition to a
net-zero carbon economy. He has received numerous
honors, including the Weldon Memorial Prize from Oxford University; the Presidential Award from the
American Society of Naturalists; an appointment as a
Lifetime Fellow of the Ecological Society of America;
and the Robert H. MacArthur Award from the Ecological Society of America. He has been elected as a member of the National Academy of Sciences, the American
Association for the Advancement of Science, and the
American Academy of Arts and Sciences.
3
Amicus Daniel P. Schrag is the Sturgis Hooper
Professor of Geology and Professor of Environmental
Science and Engineering at Harvard University and
the Director of the Harvard University Center for the
Environment. He is the author or co-author of over 180
journal articles, including research on new technological approaches to mitigating future climate change. He
was the recipient of the James B. Macelwane Medal
from the American Geophysical Union and was named
a MacArthur Foundation Fellow in 2000. He has been
elected as a member of the American Academy of Arts
and Sciences and the American Association for the Advancement of Science.
Amicus Susan Solomon is the Lee and Geraldine
Martin Professor of Environmental Studies at Massachusetts Institute of Technology. She is particularly
well known for having pioneered the theory explaining
why the ozone hole occurs in Antarctica and obtaining
some of the first chemical measurements that helped to
establish the chlorofluorocarbons as its cause. She has
authored several influential scientific papers in climate
science, including one on the irreversibility of the climate change problem. Among her many awards, she
has received the National Medal of Science (the highest
scientific honor in the US), as well as the Grande
Medaille (the highest award of the French Academy of
Sciences). She is a member of the National Academy of
Sciences, the French Academy of Sciences, the Royal
Society, the Pontifical Academy of Sciences, and the
Acadameia Europaea. She also co-led IPCC’s Working
Group I. Time magazine named Professor Solomon as
one of the 100 most influential people in the world in
2008.
The question presented in this case is of great importance to amici because it has the potential to curtail
4
the United States’ ability to combat climate change at
the federal level at a critical time. It is extremely likely
that humanity’s greenhouse gas emissions have already
fundamentally altered the Earth’s atmosphere, raising
global surface temperature levels by about 2 degrees
Fahrenheit since the late 19th century. While Americans have already felt, and will continue to feel, the impacts of climate change, regulatory action by EPA can
still mitigate future danger—assuming EPA retains
broad authority to act.
SUMMARY OF ARGUMENT
A decade ago, this Court recognized that EPA had
found “‘compelling’ evidence” that humanity’s greenhouse gas (e.g., carbon dioxide) emissions have changed
the Earth’s climate. See American Elec. Power Co. v.
Connecticut, 564 U.S. 410, 417 (2011). At the time, the
“dangers of greenhouse gas emissions” were projected
to include “heat-related deaths; coastal inundation and
erosion”; “more frequent and intense hurricanes, floods,
and other ‘extreme weather events’”; and “drought due
to reductions in mountain snowpack and shifting precipitation patterns.” Id.
The perilous future identified in American Electric
has begun to emerge. Since that ruling, the scientific
community has only grown more certain that humanity’s actions have rapidly increased the Earth’s temperature. It is now “unequivocal that human influence has
warmed the atmosphere, ocean, and land.” Intergovernmental Panel on Climate Change, Sixth Assessment
Report, Headline Statements at 1 (Aug. 2021) (“IPCC
Sixth Assessment”).3
And there is “[e]xtensive
3
Available at tinyurl.com/5n878suk.
5
evidence[] … that human activities, especially emissions of greenhouse gases, are the dominant cause” of
global warming since the 1950s. See U.S. Global
Change Research Program, Climate Science Special
Report: Fourth National Climate Assessment, Volume
I at 10 (2017) (“Fourth National Climate Assessment,
Vol. I”).4 Global surface temperature has already risen
about 2 degrees Fahrenheit when compared to the late
19th century.5 It is not too late to limit further warming and if greenhouse gas emissions can be significantly
reduced, additional warming may amount to less than 2
degrees (i.e., a total warming of less than 4 degrees
since the late 19th century). In the absence of sustained efforts to reduce greenhouse gas emissions,
however, the total increase in temperature could surpass 10 degrees—leading to physical and ecological impacts that would be irreversible for thousands of years,
if ever.
To put those numbers into perspective, the current
2 degree increase in temperature already has had notable effects across the country. Summer heatwaves and
other periods of unusually warm weather have become
more frequent and more intense, leading to balmy Decembers on the Atlantic Seaboard and temperatures in
the Pacific Northwest during the summer of 2021 that
were hot enough to melt power cables and buckle
roads. Climate change has increased total rainfall and
extreme flooding from storms like Hurricane Harvey,
causing losses of human life and destroying billions of
dollars of property in Texas and Louisiana. And rising
4
5
Available at tinyurl.com/yc5kb6bt.
Unless otherwise stated, all references to temperature are
measured in Fahrenheit.
6
temperatures have set the stage for a prolonged
drought in the American west, increasing devastation
from wildfires in environments as different as Montana
forestland and the suburbs of Boulder, Colorado.
If the world remains on a path of high and rising
greenhouse gas emissions, and the global temperature
increases by 10 degrees or more, the impact on the
American way of life is expected to be far worse. Absent large expenditures on measures to defend the
coast, children born this year could see portions of
coastal cities like New Orleans, Miami, and Annapolis
disappear under a rising ocean. Such large increases in
temperature, and accompanying increases in frequency
or intensity of extreme weather events and drought
could also have severe impacts on the United States’
food security, economy, and national defense. These
impacts would continue or accelerate already existing
trends, but a dramatic increase in temperature raises
the possibility of black swan events that have severe
consequences but are difficult to predict—for example,
destabilization of parts of the Antarctic or Greenland
ice sheets leading to rates of sea level rise several times
current estimates.
These projections are not a counsel of despair. It is
still possible to mitigate the human and economic costs
of climate change—as particularly relevant here, if
greenhouse gas emissions from existing power plants
and other sources can be reduced. But such mitigation
will require significant coordination at the federal level.
And this Court has recognized that EPA is the nation’s
“primary regulator of greenhouse gas emissions,” the
entity with “the scientific, economic, and technological
resources [necessary to] cop[e] with issues of this order.” American Elec. Power, 564 U.S. at 428. Because
the D.C. Circuit’s ruling below recognizes EPA’s
7
obligation to develop the rules necessary to reduce
greenhouse emissions, we respectfully submit that the
decision should be affirmed.
ARGUMENT
I.
IT IS UNEQUIVOCAL THAT HUMAN ACTIVITY IS THE
CAUSE OF UNPRECEDENTED GLOBAL WARMING
A. The Greenhouse Effect Controls The Earth’s
Temperature, Which Has Been Rising At An
Unprecedented Rate
The basic physics of the greenhouse effect are wellestablished. The Earth’s atmosphere contains not just
nitrogen and the oxygen we breathe, but also greenhouse gases like water vapor, carbon dioxide, methane,
and nitrous oxide. Fourth National Climate Assessment, Vol. I at 74-80. As this Court has summarized,
“greenhouse gases are so named because they ‘trap …
heat that would otherwise escape from the [Earth’s]
atmosphere.’” American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 416 (2011). The resulting
“‘greenhouse effect … helps keep the Earth warm
enough for life.’” Id.
Indeed, much of the difference in surface temperature between the Earth, Venus (whose surface is hot
enough to melt lead), and icy Mars can be explained by
their respective greenhouse gas levels. See Climate
Change, Part I: H. Comm. Hearing Before the Subcomm. on Environment at 3 (Apr. 9, 2019) (Testimony
of Dr. Michael Oppenheimer) (“Oppenheimer 2019 Testimony”).6 Without greenhouse gases, for example, the
Earth’s average surface temperature would sink as low
6
Available at tinyurl.com/2rxv2pfh.
8
as 0 degrees. NASA Earth Observatory, Effects of
Changing the Carbon Cycle (June 16, 2011).7
It is similarly well-established that the Earth is
warming at an unprecedented rate. See IPCC Sixth
Assessment, Summary for Policymakers at 88; see also
Fourth National Climate Assessment, Vol. I at 10
(“This period is now the warmest in the history of modern civilization.”). It can be stated with high confidence
that the Earth’s surface temperature has risen more
quickly since 1970 than it has in any other 50-year period since the days of Julius Caesar. Id. As a result, “the
six warmest years on record have all occurred since
2012,” including 2021. See National Oceanic & Atmospheric Admin., U.S. saw its 4th-warmest year on record, fueled by a record-warm December (Jan. 10, 2022).9
For Maine and New Hampshire, 2021 was “their second
warmest year on record” and one of the five warmest
for 19 other “states across the Northeast, Great Lakes,
Plains, and West.” Id.
We can state with high confidence that as temperatures have risen, the concentrations in the Earth’s atmosphere of the greenhouse gases (carbon dioxide, methane, and nitrous oxide) have also increased and now
are higher than they have been in hundreds of thousands of years. IPCC Sixth Assessment, Summary for
Policymakers at 8. Carbon dioxide alone makes up a
higher percentage of the atmosphere than it has in millions of years. Id. As the National Oceanic and Atmospheric Administration charts below demonstrate, the
7
8
9
Available at https://tinyurl.com/yckmw4a5.
Available at https://tinyurl.com/y45v8mjj.
https://tinyurl.com/2p8tt93x.
9
concentration of carbon dioxide in the atmosphere has
skyrocketed in the last sixty years—as is apparent by
comparison with the prior 800,000 years.10
10
Both charts can be found at tinyurl.com/3rr7xmeu (visited
Jan. 24, 2022). The charts’ reference to “parts per million” or
“ppm” refers to how many parts of carbon dioxide are in one million parts of air. For example, if carbon dioxide is measured at 416
ppm, there are 416 particles of carbon dioxide for every million
particles of air.
10
B. The Only Convincing Explanation For The
Rapid Rise In Global Temperature Is That
Human Activity Has Altered The Makeup Of
The Earth’s Atmosphere
The observation of both a rapidly heating Earth
and the skyrocketing levels of carbon dioxide in the
modern era is not coincidental. Rather, the evidence is
now “unequivocal that human influence has warmed the
atmosphere, ocean, and land” and that “[w]idespread
and rapid changes in the atmosphere, ocean, … and biosphere have occurred.” IPCC Sixth Assessment,
Summary for Policymakers at 4. Indeed, “[g]reenhouse
gas emissions from human activities are the only factors that can account for the observed warming over
the last century; there are no credible alternative human or natural explanations.” U.S. Global Change Research Program, Impacts, Risks, and Adaptation in the
United States: Fourth National Climate Assessment,
Volume II at 39-40 (2018) (“Fourth National Climate
Assessment, Vol. II”)11; see also, e.g., Mann et al., Record Temperature Streak Bears Anthropogenic Footprint, 44 Geophys. Res. Lett. 7936, 7936 (2017) (“th[e]
sequence of record-breaking temperatures [between
2014-2016] had a negligible (<.003%) likelihood of occurrence in the absence of … warming” caused by human
activity).
Specifically, the average surface temperatures both
globally and in the United States have increased by
about 2 degrees since the late 19th century, with the
majority of that increase occurring in the last 35 years.
See Lindsey & Dahlman, Climate Change: Global
11
Available at https://tinyurl.com/ymhr5dcb.
11
Temperature (updated Aug. 12, 2021);12 EPA, Climate
Change Indicators: U.S. and Global Temperature (figs.
1-2) (updated Apr. 2021);13 Fourth National Climate
Assessment, Vol. I at 14. With “significant reductions
in the emissions of greenhouse gases,” it may be possible to limit that rise to less than 4 degrees. Fourth National Climate Assessment, Vol. I at 35. Without such
reductions, the average global temperature increase
could reach anywhere from 4 to 10 degrees by late in
this century, depending on actual emissions. IPCC
Sixth Assessment, Summary for Policymakers at 14.
Another demonstration of the connection between
the rise in greenhouse gas concentrations in the atmosphere and global warming is a set of new observations
from robotic thermometers (called “floats”) across the
world’s oceans that are measuring heat absorption by
the ocean at a global scale with unprecedented precision. See Destin, National Oceanic & Atmospheric Admin., The Argo Revolution (updated July 9, 2021).14
These floats show that the deep ocean is slowly warming across the globe, and such warming is a predictable
consequence of rising atmospheric greenhouse gas levels. Johnson & Lyman, Warming trends increasingly
dominate global ocean, 10 Nature Climate Change 757,
757, 760 (2020); Lyman et al., Robust warming of the
global upper ocean, 465 Nature 334, 334, 336 (2010);
IPCC, Special Report on the Ocean and Cryosphere in
a Changing Climate, Summary for Policymakers at 7, 9
(2019) (“IPCC Ocean and Cryosphere”).15 Indeed, such
12
13
14
15
https://tinyurl.com/2xw9nfzn.
Available at https://tinyurl.com/4jtcknad.
https://tinyurl.com/2x7d85d3.
Available at https://tinyurl.com/mswryzap.
12
sustained warming of the deep ocean cannot be explained by any process other than the rise of greenhouse gases.
As one of us has summarized, “the broad outlines of
[this] problem bearing high risk for humans and society” have been clear for over thirty years, “even if many
important details remained to be fleshed out.” Oppenheimer 2019 Testimony at 3. By the late 1980s, it was
known that (1) “atmospheric carbon dioxide … was increasing and the only plausible explanation was fossil
fuel combustion along with a lesser contribution from
deforestation,” (2) “climate models projected a significant warming due to the increasing greenhouse effect,”
and (3) “it was … understood that the warming could
bring Earth to temperatures not experienced in several
million years by the end of the 21st century.” Id. at 5.
These findings led the United Nations—and later the
United States, under the leadership of President
George H.W. Bush—to create organizations dedicated
to the study of climate change. Id. at 5-6 (discussing
the founding of the Intergovernmental Panel on Climate Change); see also U.S. Global Change Research
Program, Legal Mandate.16
Since its inception, the IPCC has released six full
assessments of the basic science of climate change, the
most recent of which is cited throughout this brief.
Each report has provided increasingly strong evidence
that human activity is responsible for the changes in
the global climate:
•
16
The Second Assessment, published in 1996, concluded that “The balance of evidence suggests a
discernable human influence on global climate.”
tinyurl.com/2s3akhrx (visited Jan. 24, 2022).
13
Oppenheimer 2019 Testimony at 6 (quoting
IPCC, Second Assessment: Climate Change
1995 (1996) at 2217).
•
The Third Assessment, published in 2001, found
that “There is new and stronger evidence that
most of the warming observed over the last 50
years is attributable to human activities.” Id.
(quoting IPCC, Third Assessment: Climate
Change 2001 at 5 (first published 2001)18).
•
The Fourth Assessment, published in 2007,
“strengthened this finding further: ‘Most of the
observed increase in global average temperatures since the mid-20th century is very likely
due to the observed increase in [human] greenhouse gas concentrations.’” Id. (quoting IPCC,
Fourth Assessment: Climate Change 2007,
Summary for Policymakers at 5 (first published
2007)19).
•
The Fifth Assessment, published in 2013, stated
that “‘[i]t is extremely likely that more than half
of the observed increase in global average surface temperature from 1951 to 2010 was caused
by [humanity’s] increase in greenhouse gas concentrations and other’ human activity.” Id.
(quoting IPCC, Fifth Assessment: Climate
Change 2014, Summary for Policymakers at 5
(first published 2013)20).
17
18
19
20
Available at https://tinyurl.com/yckv5mtb.
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Available at https://tinyurl.com/2p8djehj.
14
•
And, as noted, the Sixth Assessment—
published in August 2021—concluded that the
evidence “unequivocal[ly]” shows that human
activity has led to climate change. See supra
p. 4.
The U.S. Global Change Research Program’s reports—
which are jointly authored by thirteen federal agencies
pursuant to the Global Change Research Act of 1990—
have followed a similar trajectory as the IPCC’s.
•
The first National Assessment, published in
2000, acknowledged that “[h]umans are asserting a major and growing influence on some of the
key factors that govern climate” and that “[t]he
intensity and pattern of temperature changes
within the atmosphere implicates human activities as a cause.” See U.S. Global Change Research Program, Climate Change Impacts On
The United States, Report Overview at 12-13.21
•
The second National Assessment, published in
2009, stated that “[t]he global warming observed
over the past 50 years is due primarily to human-induced emissions of heat-trapping gases.”
See U.S. Global Change Research Program,
Climate Change Impacts in the United States at
9 (emphasis added).22
•
The third National Assessment, published in
2014, found that “observations unequivocally
show that … the warming of the past 50 years is
primarily due to human-induced emissions of
heat-trapping gases.”
U.S. Global Change
21
22
Available at https://tinyurl.com/5e3z3tka.
Available at https://tinyurl.com/2e7dc9d2.
15
Research Program, Climate Change Impact in
the United States at 5 (emphasis added).23
•
And, as noted, the fourth National Assessment,
first published in 2017, noted that there is “no
convincing alternative explanation” for the global increase in temperature beyond human activity. Fourth National Climate Assessment, Vol. I
at 10; supra pp. 4-5.
In sum, after decades of study, both the global and
American scientific communities have arrived at the
same, unequivocal conclusion: Human activity—in particular, the emission of greenhouse gases—has increased the Earth’s temperature. See, e.g., Fourth National Climate Assessment, Vol. II at 36 (“[T]he evidence of human-caused climate change is overwhelming
and continues to strengthen.”).
II. CLIMATE CHANGE ALREADY AFFECTS EVERY AMERICAN AND—WITHOUT ACTION—ITS IMPACT ON DAILY
LIFE IS EXPECTED TO GROW IN DRAMATIC AND NOT
FULLY PREDICTABLE WAYS
1. Climate Change Has Already Had Notable
Effects Across The Country
There is “a direct connection” between the 2 degree
global temperature rise that has already taken place
and “the resulting changes that affect Americans’ lives,
communities, and livelihoods, now, and in the future.”
Fourth National Climate Assessment, Vol. II at 36; see
also id. at 55 (changes caused by warming “increasingly
threaten the health and well-being of the American
people”). Between 2015 and April 2018 alone, for
23
Available at https://tinyurl.com/3mj4m7ef.
16
example, “the United States … experienced 44 billiondollar weather and climate disasters …, incurring costs
of nearly $400 billion.” Id. at 66-68. Indeed, warmer
temperatures in the United States have already been
associated with a number of interrelated long-term climate trends, short-term weather events, and resulting
impacts, such as (1) extreme heat and heatwaves, (2)
rising sea levels, and accompanying coastal flooding, (3)
increases in the frequency and intensity of storms producing heavy precipitation, including hurricanes and
typhoons, (4) more intense and longer droughts, (5)
wildfires, and (6) habitat degradation increasing risk of
local extinctions and biodiversity loss.
a. Extreme Heat and Heatwaves: Temperatures
across the United States have “increased rapidly” since
the 1970s and in recent years, “twice as many hightemperature records have been set as low-temperature
records.” Fourth National Climate Assessment, Vol. I
at 186, 190-192; see also supra p. 8. Heatwaves (i.e., “6day periods with a maximum temperature above the
90th percentile”) have similarly increased in most places in the country. Fourth National Climate Assessment, Vol. I at 191. By the federal government’s estimate, the frequency has increased from 2 heatwaves
per year in the 1960s to 6 per year in the 2010s. See
EPA, Climate Change Indicators: Heat Waves (updated Apr. 2021).24 This is no coincidence, as historical
warming has made the hottest days of the year both
more likely and hotter between 1961 and 2010. Diffenbaugh et al., Quantifying the influence of global warming on unprecedented extreme climate events, 114 Proceedings Nat’l Academy Sci. U.S.A. (“PNAS”) 4881,
24
Available at https://tinyurl.com/ye23jv82.
17
4882 (2017).25 To take one recent example, an early
study suggests that last summer’s heatwave in the Pacific Northwest—where temperatures rose 40 degrees
above average, hot enough to melt power cables and
make asphalt buckle—was “virtually impossible without human-induced climate change.” See Philip et al.,
Rapid attribution analysis of the extraordinary heatwave on the Pacific Coast of the US and Canada June
2021, World Weather Attribution (July 7, 2021);26 see
also Januta, Pacific Northwest heat wave ‘virtually
impossible’ without climate change-research, Reuters
(July 8, 2021);27 see also Fischels, PHOTOS: The Record-Breaking Heat Wave That’s Scorching The Pacific
Northwest, NPR (June 29, 2021).28
The increasing temperature is especially troubling
because “[e]xtreme heat is the leading cause of climaterelated death in the” United States. See Climate
Change Science: Hearing Before the H. Comm. on Science, Space, and Technology at 14 (Mar. 12, 2021) (Testimony of Dr. Michael Oppenheimer) (“Oppenheimer
2021 Testimony”).29 In particular, “[h]igh temperatures
in the summer are linked directly to an increased risk
of illness and death, particularly among older adults,
pregnant women, and children.” Fourth National Climate Assessment, Vol. II at 55. From 1991 to 2018,
37% of heat-related summer deaths worldwide were
attributable to human-caused climate change. Vicedo25
26
27
28
29
Available at https://tinyurl.com/n3dd85ak.
Available at https://tinyurl.com/y29dnrvp.
https://tinyurl.com/dbpec3cj.
https://tinyurl.com/3pncwwxt.
Available at https://tinyurl.com/3b5jftfj.
18
Cabrera et al., The burden of heat-related mortality attributable to recent human-induced climate change, 11
Nature Climate Change 492, 492 (2021); see also
Schwartz, More Than a Third of Heat Deaths Are Tied
to Climate Change, Study Says, N.Y. Times (May 31,
2021).30
b. Sea Levels And Flooding: It can be stated with
high confidence that global sea levels have risen faster
since 1900 than over any prior century in 3000 years.
See IPCC Sixth Assessment, Summary for Policymakers at 8. Rising sea levels are directly linked to climate
change. Most of the heat trapped by greenhouse gases
has been absorbed by the oceans, which have reacted to
this heat as most liquids do—by expanding and taking
up greater volume. Id. at 11; Oppenheimer 2021 Testimony at 5-6. At the same time, the ice sheets located
around the Earth’s poles and mountain glaciers alike
have begun to melt at an increasing rate—that meltwater eventually ends up in the ocean. See IPCC Sixth
Assessment, Summary for Policymakers at 11; Oppenheimer 2021 Testimony at 5-6.
Ocean levels rose 2.5 times faster between 20062015 (about 14 inches per century) than they did between 1901 and 1990 (about 6 inches per century).
IPCC Ocean and Cryosphere, Summary for Policymakers at 10; Oppenheimer 2021 Testimony at 6. Rising
sea levels have increased coastal flooding at high tide as
much as “5- to 10-fold” over the norm in the 1960s in
cities like Miami, Wilmington, North Carolina, and
Charleston, South Carolina. Fourth National Climate
Assessment, Vol. II at 99, 757. Similarly, areas of Norfolk, Virginia are now 4 times more likely to flood than
30
https://tinyurl.com/yck4pjvm.
19
they were in the 1960s. Id. at 758. And between 1932
and 2016, Louisiana lost 2006 square miles of land due
in part to high rates of sea level rise. Id. at 775. That is
the equivalent of one football field-sized piece of land
disappearing every 34 to 100 minutes. Id.
c. Storms and Hurricanes: Heavy rain and snow
storms across most of the United States “have increased in both intensity and frequency since 1901.”
Fourth National Climate Assessment, Vol. II at 152.
This result is consistent with higher temperatures leading to “higher levels of water vapor in the atmosphere,
which in turn lead to more frequent and intense precipitation extremes.” Id. at 88. Storm-caused flooding inflicts billions of dollars in damage annually in the United States, and research suggests that intensifying
storms have been responsible for about a third of those
costs in recent years. Davenport & Diffenbaugh et al.,
Contribution of historical precipitation change to US
flood damages, 118 PNAS 1, 3 (2021).31 For example,
the exceptionally heavy precipitation and flooding
events that occurred in the mid-Atlantic states including Pennsylvania, New Jersey, Maryland, and Washington, D.C. in 2018 were made 1.1 to 2.3 times more
likely by human-caused climate change. Winter et al.,
Anthropogenic Impacts on the Exceptional Precipitation of 2018 in the Mid-Atlantic United States, 101 Bull.
Am. Meteorological Soc’y 5, 5 (2020).32
Notably, the increase in intense rainstorms has
combined with sea level rise to make hurricane season
in the Atlantic Ocean more dangerous. Fourth National Climate Assessment, Vol. I at 27. While climate
31
32
Available at https://tinyurl.com/25d3szt5.
Available at https://tinyurl.com/2exx26wk.
20
change may not necessarily increase the total number
of hurricanes, hurricanes’ precipitation totals are expected to rise. Unusually high precipitation totals have
been observed and directly linked to climate change in
some recent hurricanes. For example, one study estimated that as much as 38% of the total rainfall from
Hurricane Harvey—a storm that made landfall in Texas and Louisiana in 2017—was caused by “humaninduced climate change”; another study estimated that
human activity made “the event itself three times more
likely.” Fourth National Climate Assessment, Vol. II
at 95. And higher sea levels in combination with storm
surge have further increased the risk of coastal flooding. Trenberth et al., Hurricane Harvey Links to
Ocean Heat Content and Climate Change Adaption, 6
Earth’s Future 730, 741-742 (2018) (using Hurricane
Harvey to demonstrate how human-induced climate
change causes higher sea temperature, intensifies
storms, and increases flooding rains);33 Lin et al., Hurricane Sandy’s flood frequency increasing from year
1800 to 2100, 113 PNAS 12071, 12071-12073 (2016) (the
frequency of Hurricane Sandy-like extreme flood
events has increased significantly over the past two
centuries due to the compound effects of sea level rise
and storm surge).34
The results were catastrophic. The 2017 Atlantic
hurricane season, for example, caused more than 250
deaths and $250 billion in damage. Fourth National
Climate Assessment, Vol. II at 66. Hurricane Harvey’s
rainfall in Houston was about 30 inches and higher
amounts fell at some locations nearby, with its total
33
34
Available at https://tinyurl.com/bdxn2vee.
Available at https://tinyurl.com/29kvz2c7.
21
rainfall “likely exceed[ing] that of any known historical
storm in the continental United States.” Id. at 66, 9596. It killed 68 people and inflicted $125 billion in damage, National Oceanic & Atmospheric Admin., Service
Assessment: August-September 2017 Hurricane Harvey iv (June 2018);35 it also “knocked out power to
300,000 customers in Texas,” including hospitals and
water treatment facilities, Fourth National Climate
Assessment, Vol. II at 643.
d. Droughts: Rising global temperatures can “play
a critical role in increasing the rate of drought onset,
overall drought intensity, and drought impact through
altered water availability and demand,” Fourth National Climate Assessment, Vol. II at 399; and it can be
said with medium confidence that “human-induced climate change” has made droughts worse by increasing
the rate at which water evaporates into the atmosphere, IPCC Sixth Assessment, Summary for Policymakers at 8; see also id. at 24 (as temperatures increase
in the future, “the level of confidence in and the magnitude of the change in droughts … increase”).
Drought conditions in recent years have caused billions of dollars in damage in the western half of the
United States. Fourth National Climate Assessment,
Vol. II at 67. For example, the Northern Great Plains
region—which encompasses states like Idaho and
North Dakota—endured a severe drought in 2017 that
damaged wheat crops and forced ranchers to sell off
their cattle because they were unable to feed them. Id.
Even today, Lake Powell—the nation’s second-largest
reservoir, which supplies drinking water to 40 million
people in states like Utah and Arizona—is at just 27%
35
Available at https://tinyurl.com/nhaa5eha.
22
of capacity. See Maffly, Feds tighten Colorado River
flow at Glen Canyon Dam as ever-shrinking Lake
Powell nears critical level, Salt Lake Tribune (Jan. 7,
2022);36 Meiners, Scientists see silver lining in fed’s latest efforts to avoid ‘dead pool’ at Lake Powell, St.
George Spectrum & Daily News (updated Jan. 12,
2022).37
e. Wildfires: Climate change can also play a
role in wildfires, as higher temperatures dry out vegetation and make forests more likely to burn. Fourth
National Climate Assessment, Vol. I at 243. Extreme
wildfires are increasing in the western United States
and human-caused warming has contributed to at least
two-thirds of that increase. Zhuang et al., Quantifying
contributions of natural variability and anthropogenic
forcings on increased fire weather risk over the western
United States, 118 PNAS 1, 7 (2021);38 see also Diffenbaugh & Field, et al., Atmospheric variability contributes to increasing wildfire weather but not as much as
global warming, 118 PNAS 1, 1 (2021) (Commentary).39
Specifically, “[h]uman-caused climate change is estimated to have doubled the area of forest burned in
the western United States from 1984 to 2015.” Fourth
National Climate Assessment, Vol. II at 521. During
the summer of 2015 alone, “over 10.1 million acres—an
area larger than the entire state of Maryland—burned
across the United States.” Id. at 67-68. The scope of
the wildfires in that year was unprecedented since
36
37
38
39
https://tinyurl.com/3pry3nmr.
https://tinyurl.com/3c5eck93.
Available at https://tinyurl.com/yc4marbz.
Available at https://tinyurl.com/46nrucfp.
23
recordkeeping began in 1960, burning over 5 million
acres in Alaska and 1 million in Montana. Id. In both
2017 and 2020, more than 10 million acres across the
United States were burned each year. Congressional
Res. Serv., Wildfire Statistics (updated Oct. 4, 2021).40
As a more recent example, just last month, the
suburbs of Boulder County, Colorado were hit by the
most destructive wildfire in state history—one that
damaged or destroyed roughly 1,000 homes, see NASA
Earth Observatory, Colorado Faces Winter Urban
Firestorm (Dec. 30, 2021).41 The six months prior to the
fire were the warmest on record in the region, which
was experiencing extremely dry conditions. Swain, The
Deadly Dynamics of Colorado’s Marshall Fire, Outside (Jan. 11, 2022).42 Although climate change did not
start the fire, in the words of one local researcher, it
“led to a perfectly built stack of fuels in the fireplace,
ready and waiting to be burned.” Freedman, Climate
scientists grapple with wildfire disaster in their backyard, Axios (Jan. 3, 2022);43 see also Chuck, How climate change primed Colorado for a rare December
wildfire, NBC News (updated Jan. 2, 2022).44
f. Loss of Biodiversity: Increases in temperature
affect not just the land and seas, but the creatures that
inhabit them. A hotter world “aid[s] the spread of invasive species” to new locations, while forcing other
species to “shift[] their ranges … and [make] changes in
40
41
42
43
44
Available at https://tinyurl.com/2p857kth.
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https://tinyurl.com/pe3wsjjw.
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https://tinyurl.com/4n9rfjfs.
24
the timing of important biological events.” Fourth National Climate Assessment, Vol. II at 53. For example,
tree-killing bark beetles have been able to dramatically
expand their ranges in both the eastern and western
United States. Id. at 250, 649, 1115. And in the Mississippi River Basin—the home of over 300 fish species, as
well as waterfowl, turkey, moose, and alligator—more
frequent hot days and milder winters have begun to
disrupt the wildlife’s mating and migration patterns.
See National Wildlife Federation, A Hunter’s & Angler’s Guide to Climate Change: Challenges, Opportunities & Solutions 8-9 (Oct. 2021).45
In some cases, climate change has thinned species’
populations and contributed to local extinction. See
Wiens, Climate-Related Local Extinctions are Already
Widespread Among Plant and Animal Species, 14
PLOS Biology 1, 1 (2016) (“[C]limate-related local extinctions have already occurred in … 47% of the 976
species surveyed” and “will presumably become much
more prevalent as global warming increases”);46 Panetta et al., Climate Warming Drives Local Extinction:
Evidence from Observation and Experimentation, 4
Sci. Adv. 1, 1 (2018) (finding that “local warming is driving local extinction”).47 The Midwest, for instance, may
soon lose iconic trees like the paper birch and the black
ash. Fourth National Climate Assessment, Vol. II at
873, 886.
The loss of biodiversity is not limited to the land.
Oceans are getting warmer, see supra pp. 11-12, 18, and
45
46
47
Available at https://tinyurl.com/mrxd98uk.
Available at https://tinyurl.com/nhf2cptc.
Available at https://tinyurl.com/vc3pjs33.
25
“[i]t is virtually certain that human-caused [carbondioxide] emissions are the main driver” of ocean acidification, IPCC Sixth Assessment, Summary for Policymakers at 5. Acidification has caused a marked decrease in carbonate ions—the building blocks of coral
and sea shells, Fourth National Climate Assessment,
Vol. II at 357. The United States’ major coral reefs are
thus both dying (from the increased water temperatures, among other contributors to decline) and unable
to rebuild (due to acidification). Id. at 359, 368. If no
action is taken to reduce greenhouse gas emissions, the
percentage of live coral in Hawaii will decline from 38%
in 2010 to 11% in 2050; in southern Florida, live coral
will vanish almost entirely. See EPA, Multi-Modal
Framework for Quantitative Sectoral Impacts Analysis: A Technical Report for the Fourth National Climate Assessment 171-172 (May 2017).48 Further north,
the shellfish that live in the Gulf of Maine are also vulnerable to warming and ocean acidification, reducing
the ability of Mainers to catch or raise shellfish like lobsters, scallops, blue crabs, and oysters. Fourth National Climate Assessment, Vol. II at 687. And on the
other side of the country, salmon populations have been
declining for decades and even facing extinction as a
result of a warming climate. Crozier et al., Climate
change threatens Chinook salmon throughout their life
cycle, 4 Comms. Biology 1, 3, 5 (2021).49
48
49
Available at https://tinyurl.com/2p8fnrw3.
Available at https://tinyurl.com/2p92tsm5.
26
2. Absent Action, More Severe Consequences Are Expected
Under any realistic emissions scenario, global surface temperature will continue to increase until at least
2050. IPCC Sixth Assessment, Summary for Policymakers at 14. If greenhouse gas emissions can be significantly reduced, additional warming may be limited
to less than 2 degrees, or a total warming of less than 4
degrees since the late 19 century. Id. In the absence of
sustained efforts to reduce greenhouse-gas emissions,
the total increase in temperature could surpass 10 degrees. Id.
With “every additional increment[al]” change in
temperature, “changes in extremes continue to become
larger,” meaning “increases in the frequency and intensity of hot extremes, … heavy precipitation, … agricultural and ecological droughts; an increase in the proportion of intense tropical cyclones; and reductions in Arctic sea ice, snow cover and permafrost.” IPCC Sixth
Assessment, Summary for Policymakers at 15. Failing
to reduce greenhouse gas emissions will “impose substantial damages on the U.S. economy, human health,
and the environment.” Fourth National Climate Assessment, Vol. II at 1347. It will also lead to physical
and ecological impacts that would be irreversible for
thousands of years—if ever. IPCC Sixth Assessment,
Summary for Policymakers at 21 (noting that changes
to ocean temperature and acidification—as well as to
permafrost at the Earth’s poles—“are irreversible for
centuries to millennia”).
Because listing all potential harms that could occur
in the next thirty to eighty years as a result of climate
change would require hundreds of pages, see, e.g.,
27
Fourth National Climate Assessment, Vol. II at 721308, we have included representative examples below.
a. Coastal Cities And Landmarks Flooded: Under
even a low emissions scenario, oceans will rise approximately 7-13 inches by midcentury and approximately
11-23 inches in eighty years. Oppenheimer 2021 Testimony at 7; Oppenheimer, et al., Sea Level Rise and Implications for Low-Lying Islands, Coasts, and Communities 321, 327, in IPCC Special Report on the
Ocean and Cryosphere in a Changing Climate.50 To
put that amount of sea level rise in practical terms, by
2050, water levels during storms and very high tides
that were only seen once a century are expected every
year in places like Savannah, Jacksonville, Miami, and
San Diego. Oppenheimer 2021 Testimony at 9. The
Northeast also faces flooding, particularly in the historic districts of cities like Annapolis, Maryland and Newport, Rhode Island, as well as portions of Washington
D.C. near the tidal basin. See Fourth National Climate
Assessment, Vol. II at 695-696 (noting that the “historic
districts” in coastal cities and towns—like Annapolis
and Newport, Rhode Island—already “face the threat
of rising sea levels”). Without reductions in greenhouse
gas emissions, ocean levels would go even higher, as
much as approximately 9-16 inches by midcentury and
approximately 24-43 inches by 2100. Oppenheimer 2021
Testimony at 7; Oppenheimer, Sea Level Rise and Implications for Low-Lying Islands, Coasts, and Communities 327.
b. Food Security At Risk: In numerous parts of the
world, “[c]limate change has already affected food security due to warming, changing precipitation patterns,
50
Available at https://tinyurl.com/473nunx2.
28
and greater frequency of some extreme events.” IPCC,
Climate Change and Land, Summary for Policymakers
at 10 (2020).51 In the United States, “increases are expected in the incidence of drought and elevated growing-season temperatures,” which will decrease the
“[a]verage yields of many commodity crops (for example, corn, soybean, [and] rice”) and “specialty crops”
like fruits and vegetables. Fourth National Climate
Assessment, Vol. II at 399-400; see also Gray, Global
Climate Change Impact on Crops Expected Within 10
Years, NASA Study Finds, NASA (Nov. 2, 2021) (under a high emissions scenario, corn yields are projected
to decline 24% by 2030).52
The Midwest’s agricultural sector will be hit particularly hard and is “projected to be the largest contributing factor to declines in the productivity of U.S.
agriculture.” Fourth National Climate Assessment,
Vol. II at 875. Indeed, “[p]rojected changes in precipitation, coupled with rising extreme temperatures before mid-century, will reduce Midwest agricultural
productivity to levels of the 1980s” (assuming no major
technological advances). Id. at 873.
c. Heat-Related Health Issues Spread: Rising heat
will pose an increasing threat to human health. For example, if no action is taken to reduce greenhouse gas
emissions, “almost three-quarters of the world’s population” will be exposed to deadly levels of heat and humidity for at least 20 days a year by 2100. Mora et al.,
Global risk of deadly heat, 7 Nature Climate Change
501, 505 (2017).
51
52
Available at https://tinyurl.com/2p9deevt.
https://tinyurl.com/285m2rvh.
29
In North America, climate change is projected to
shift the “geographic range and distribution of diseasecarrying insects and pests,” meaning that “more people” “could [be] expos[ed] … to ticks that carry Lyme
disease and mosquitos that transmit viruses such as
West Nile, … dengue, and Zika.” Fourth National
Climate Assessment, Vol. II at 57, 545. Incidences of
West Nile in particular “are projected to more than
double by 2050[,]” “resulting in $1 billion per year in
hospitalization costs and premature deaths under a
higher [emissions] scenario.” Id. at 552. Moreover,
“[i]ncreasing water temperatures associated with climate change are projected” to increase the number of
“harmful algae and coastal pathogens” in fresh water.
Id. at 545.
In the Great Lakes, for example,
“[i]ncreased water temperatures and nutrient inputs
contribute to algal blooms, including harmful cyanobacterial algae that are toxic to people, pets and many native species.” Id. at 895.
d. Damage to National Economy: If greenhouse
gas emissions are not reduced, the United States is projected to lose more than two billion labor hours a year
by 2090 due to increasing temperatures, “costing an estimated $160 billion in lost wages.” Fourth Climate
Assessment, Vol. II at 50. Other harms wrought by
climate change, including to coastal property, air quality, roads, and inland flooding, are expected to lead to
over $200 billion in additional damage on an annual basis. Id. at 1358. For consumers, energy and water
costs may skyrocket—particularly in the southern
United States—as the demand for air conditioning increases and the competition for water between individuals, farmers, and power plants continues to grow. See,
e.g., id. at 777-778.
30
e. National Security At Risk: Rising temperatures
and intensifying storms due to climate change also implicate the United States’ national security. The Department of Defense has recognized for well over a
decade that “[g]lobal climate change will have wideranging implications for U.S. national security interests.” See U.S. Department of Defense, The National
Security Implications of Climate-Related Risks and a
Changing Climate 2-3 (May 2015);53 see also U.S. Department of Defense, Climate Risk Analysis 4 (Oct.
2021) (“Climate change touches most of what th[e] Department does, and this threat will continue to have
worsening implications for U.S. national security.”).54
For example, national security is directly “impacted by
damage to U.S. military assets such as roads, runways,
and waterfront infrastructure from extreme weather
and climate-related events.” Fourth National Climate
Assessment, Vol. II at 59. More broadly, “changes in
climate increase risks … by affecting factors that can
exacerbate conflict and displacement outside of U.S.
borders, such as food and water insecurity and commodity price shocks.” Id. Indeed, “in worst-case scenarios[,] climate-change related impacts could … contribute to mass migration events or political crises, civil
unrest, shifts in the regional balance of power, or even
state failure.” U.S. Department of Defense, Climate
Risk Analysis at 8.
f. Some of the Most Extreme Outcomes Are Unpredictable: It can be stated with high confidence that
the probability of (currently) “low-likelihood, highimpact outcomes increases with higher global warming
levels.” IPCC Sixth Assessment, Summary for Policy53
54
Available at https://tinyurl.com/2p8ssywm.
Available at https://tinyurl.com/yckkh5d5.
31
makers at 27; accord Fourth National Climate Assessment, Vol. II at 66 (similar).
For instance,
“[h]uman influence has likely increased the chance of”
multiple climate-change-related impacts occurring at
the same time, like “concurrent heatwaves and
droughts,” IPCC Sixth Assessment, Summary for Policymakers at 9 (emphasis omitted), or “extreme rainfall
combined with coastal flooding,” Fourth National Climate Assessment, Vol. II at 44-45. The “physical and
socioeconomic impacts” of such “compound extreme
events can be greater than the sum of the parts.” Id. at
91. In the heatwave/drought example, demand for water would go up as supply goes down; in the extreme
rainfall/coastal flooding example, ground that is already
water-logged from the rain might absorb far less flood
waters than normal.
Higher temperatures—and their accompanying effects—also increase the likelihood of “large-scale shifts
in the climate system” (i.e., “tipping points”). Fourth
National Climate Assessment, Vol. II at 66; see also
IPCC Sixth Assessment, Summary for Policymakers at
27 (“with higher global warming levels,” “[a]brupt responses and tipping points of the climate system …
cannot be ruled out”). For example, it can be projected
with high confidence that—over the next eighty
years—water from increased rainfall and melting ice
will weaken the Atlantic ocean currents that move
warm water north and cold water south. IPCC Sixth
Assessment, Summary for Policymakers at 27; see also
Fourth National Climate Assessment, Vol. I at 418.
While it can be said with medium confidence that the
currents will not collapse during this century, “[i]f such
a collapse were to occur, it would very likely cause abrupt shifts in regional weather patterns and water
cycles”—e.g., shifting rain events further south and
32
away from Europe, IPCC Sixth Assessment, Summary
for Policymakers at 27 (emphasis omitted)—and could
cause sea levels in the northeastern United States to
rise as much as 1.6 feet, Fourth National Climate Assessment, Vol. I at 418. As another example, warming
temperatures in the Arctic could release substantial
amounts of carbon dioxide and methane trapped in the
permafrost and the ocean floor, “driv[ing] continued
warming even if human-caused emissions stopped altogether.” Id. at 418-419.
III. THE UNITED STATES STILL HAS THE OPPORTUNITY TO
HELP MITIGATE THE EFFECTS OF CLIMATE CHANGE
While we cannot avoid all negative effects from
climate change, it is not too late to limit the harm. Indeed, “[m]any climate change impacts and associated
economic damages in the United States can be substantially reduced over the course of the 21st century”
through reducing greenhouse gas emissions. U.S.
Fourth National Assessment, Vol. II at 1347. Practically speaking, this means that “[d]ecisions made today
determine risk exposure for current and future generations” and “the severity of future impacts will depend
largely on actions taken to reduce greenhouse gas
emissions and to adapt to the changes that will occur.”
Id. at 34.
As the nation with the second-highest emissions of
carbon dioxide from fossil fuel combustion in the world
(and higher than the largest emitter, China, on a per
capita basis), Global Carbon Project, Global Carbon
Budget at 19-20 (Nov. 4, 2021),55 the policies that the
United States sets into place can make a substantial
difference in the conditions that future generations will
55
Available at https://tinyurl.com/9zh44cd8.
33
face. See IPCC Sixth Assessment, Summary for Policymakers at 27-29 (noting “with high confidence … that
there is a near-linear relationship” between carbon dioxide emissions and global warming). Substantially reducing emissions could “avoid[] thousands to tens of
thousands of deaths per year from extreme temperatures,” and “hundreds to thousands of deaths per year
from poor air quality.” Fourth National Assessment,
Vol. II at 1359. And if global warming can be limited to
less than a total of 4 degrees, the ultimate economic
costs of climate change this century could be less than
1/4 of what they would be under a high emissions scenario. Fourth National Assessment, Vol. II at 1360.
This Court should exercise caution before unduly limiting EPA’s ability to enact rules that help protect the
future for today’s and tomorrow’s children.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
FELICIA H. ELLSWORTH
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
JANUARY 2022
THOMAS G. SPRANKLING
Counsel of Record
ALLISON BINGXUE QUE
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real
Palo Alto, CA 94306
(650) 858-6000
thomas.sprankling
@wilmerhale.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.