Lauren E. Sancken, Andrea K. Rodgers, and Jennifer Marlow, The Injustice of 1.5°C–2°C: The Need for a Scientifically Based Standard of Fundamental Rights Protection in Constitutional Climate Change Cases, 40 Va. Env't L.J. 102 (2022), https://digitalcommons.law.uw.edu/faculty-articles/919
Virginia Environmental Law Journal
Climate change, Paris Agreement, Human rights, Temperature rise, Climate science
In 2015, signatories to the Paris Agreement agreed to the goal of keeping global temperature rise this century to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase even further to 1.5°C. Although the adoption of the Paris Agreement was in many ways a political triumph, seven years later many climate advocates are presenting the Paris target to judicial bodies as the de facto legal standard for fundamental rights protection in climate change cases. Yet, the history leading up to the signatories’ ultimate adoption of the Paris Agreement target suggests that the target is somewhat arbitrary and not a product of scientific debate, but rather the outcome of political diplomacy. There is no scientific support for the notion that 1.5°C or 2°C will stabilize the Earth’s Energy Imbalance, a metric scientists deem fundamental for assessing the mitigation of climate change. The scientific consensus suggests that the impacts of 1.5°C or 2°C of global heating will result in the eradication of entire populations and places, causing devastating climate change impacts and placing many people in peril. The IPCC’s Special Report on Global Warming of 1.5°C, as well as peer-reviewed climate science, illustrates that in a world 1.5°C warmer, humanity will suffer, with the most disadvantaged and vulnerable communities threatened the most.
This Article describes how the global community came to coalesce around the Paris Agreement target and asks a controversial question: whether a target obtained through international agreement should be used by climate advocates and judicial bodies as a proxy legal standard for fundamental rights protection and the fair administration of justice when the science says otherwise? Part One of this Article describes the history of the 1.5°C–2°C target and its subsequent acceptance and popularization as a limit based on “science.” Part Two analyzes how legal practitioners and courts are relying on the Paris Agreement as the basis for establishing legal standards of protection for fundamental rights in climate change litigation and how judicial endorsement of an unsafe target threatens human rights. Part Three proposes that science-based climate mitigation standards are a more appropriate legal standard for protecting human rights in climate change cases.