A Climate Change with Matt Matern Climate Podcast

And it’s maddening that we’re at a time where electricity demand seems about to soar because of data centers, and the administration is slashing wind and solar wherever they can, which is going to make it so much harder to meet that new electricity demand.

It’s so counterproductive to their alleged goal of making us energy dominant—and dominant in AI. Those two things require tons of power.

There are so many contradictions in Trump’s energy policy. He promised to lower the price of energy, but if energy is so cheap, it’s not economical to drill. The rig count is actually down. We’re not seeing new coal mines or anything like that. Nobody’s building new coal-fired power plants.

You’re listening to A Climate Change. This is Matt Matern, your host. I’ve got a great guest on the program: Professor Michael Gerrard. Michael’s CV goes on for a long while. We could probably take the whole show reading it, but just hitting some highlights: he’s founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School. He’s the author of 14 books, including Global Climate Change and U.S. Law. He was also chair of the Earth Institute at Columbia. Welcome to the program.

I always like to start at the beginning: what was the impetus for you going into environmental law?

I grew up in Charleston, West Virginia, a town dominated by the petrochemical industry, so I grew up amid a lot of air and water pollution. I went to college in New York at Columbia and was there for the first Earth Day in 1970, when I was a sophomore. I covered that event for the school newspaper, and I wrote my senior thesis on the politics of air pollution in West Virginia. After I graduated, I worked for an environmental group in New York for a couple of years and decided the most interesting work on the environment was being done by lawyers. So I entered law school intending to become an environmental lawyer—and I’ve stuck with it all these years.

Coming out of school, did you go to a firm or into teaching?

I joined a small boutique firm that specialized in pro-environmental work and practiced there for 15 years. When it broke up, I transferred laterally to a big law firm, where I practiced environmental law for another 15 years. In 2009, I moved into academia and joined Columbia Law School to teach environmental, energy, and climate change law, and to found what’s now the Sabin Center for Climate Change Law.

What’s the working theme of the Sabin Center, and what are your primary focuses?

The Sabin Center’s purposes are to develop innovative legal techniques to fight climate change, train the next generation of lawyers to use those techniques, and create legal resources—databases and so forth—used by lawyers, judges, and others around the world.

What are some of the best legal techniques right now?

Ideally we’d have legislation—Congress would act and create a major law explicitly addressing climate change. Congress has not done that. A few states have. In the absence of strong statutes, agencies can still issue regulations under existing statutory authority, though the Supreme Court has made that more difficult. Third, we have litigation. Litigation isn’t the ideal method, but it’s an important tool in the toolbox.

As litigators, we’ve done plenty of litigation. What do you see as the most successful climate litigation—historically and currently?

Historically, the most successful case was the Supreme Court’s 2007 decision in Massachusetts v. EPA, which held EPA has the authority—and perhaps the obligation—under the Clean Air Act to regulate greenhouse gases. There have also been successful cases stopping particular projects like coal-fired power plants, coal mines, pipelines, highways, and other projects with negative environmental impacts.

Right now, much litigation is against the Trump administration, challenging cutbacks and clawbacks of federal money already appropriated by Congress, and efforts to stop important projects that are underway. Some cases have had early victories—temporary restraining orders or preliminary injunctions—but we’ll see what happens if and when these reach the Supreme Court.

On the endangerment finding—Trump’s EPA has proposed reversing it. How likely is that?

I’m nervous. They’re using what I call a “cluster bomb” approach—four or five theories, and if they win on any one, they succeed. One theory that will get a lot of attention is the major questions doctrine. A few years ago, the Supreme Court said the Clean Power Plan was beyond EPA’s power under the Clean Air Act—essentially saying the statutory language might arguably allow it, but the issue was so economically and politically significant that Congress needed to speak explicitly. The administration will likely argue similarly here: even if the Clean Air Act allows regulation of greenhouse gases, it’s such a big issue that Congress needed to be explicit, and it hasn’t been.

Congress knew about greenhouse gases back in the late ’60s and early ’70s when the Clean Air Act was passed. Is that enough to show intent?

The Clean Air Act requires an endangerment finding if there’s a negative effect on health or welfare, and “welfare” includes climate. Congress was aware of climate change in 1970—that’s documented—and that will be an argument for the environmental side. The other side will argue Congress wasn’t explicit about what should be done about climate change. We’ll see how it plays out.

It seems like a high standard to require Congress to foresee every problem 50 years in advance.

I agree. All major environmental laws were passed between 1970 and 1990. Since 1990, we haven’t had major new environmental laws from Congress, except the Inflation Reduction Act, which has been partially repealed. On the other hand, no major environmental laws have been repealed. Partisan division means neither side can pass or repeal major laws, so environmental lawyers work with 30-, 40-, and 50-year-old statutes written before climate change was fully understood and before many modern problems were known.

Let’s talk about the Montana case based on the state constitution. What’s the status?

It’s been successful. After trial, the court ruled for the plaintiffs. The state Supreme Court affirmed. It’s purely state law, so it can’t go to the U.S. Supreme Court. The case challenged a state policy that climate change could not be considered in state energy policy. Montana’s constitution has an environmental rights provision, and the courts held climate change is included in what must be protected, so that policy was unconstitutional.

How does that play out practically?

A later Montana decision required environmental permits for a new industrial facility and said greenhouse gases needed to be considered. The decision has had impact, but it’s mainly about consideration. It doesn’t require denial after considering it, so the substantive impact is limited. One reason it succeeded is the plaintiffs weren’t asking for very much. They wanted to establish a principle without scaring the court. Other cases—like Juliana—asked for much more, which may have contributed to courts denying relief.

Cities and Puerto Rico are suing fossil fuel companies. What’s happening there?

We’re tracking them closely. There are more than 30 still pending. Some trial courts have dismissed them and those are on appeal. Others have allowed the cases to proceed. Three survived initial motion practice in state supreme courts—Massachusetts, Colorado, and Hawaii. In the Hawaii case, the defendants tried to get the U.S. Supreme Court to review it; it refused. In the Colorado case, the defendants recently filed a petition for Supreme Court review. These cases are moving forward; we may see trials in the coming years.

Is Hawaii the closest to trial?

Massachusetts and Hawaii—possibly Massachusetts because it’s been around longer and discovery has been ongoing. Defendants will likely bring summary judgment motions that slow things down.

What would their summary judgment theory be?

The Massachusetts case is essentially about consumer fraud. One argument may be that the state can’t prove consumers were deceived in a way that changed behavior—e.g., if warned gasoline is bad for the climate, would consumers have stopped driving or bought EVs? That kind of causation/reliance issue may be raised.

Puerto Rico had a RICO case with attribution science linking damages. Are you tracking that?

Yes. I believe there were two Puerto Rico cases: one by municipalities and one by the Commonwealth. The Commonwealth case was withdrawn after a Republican governor took office and wanted alignment with President Trump. But the RICO case recently survived a motion to dismiss and will go forward.

We haven’t had a trial yet on attribution—the stages include: were plaintiffs injured, were they injured by climate change, was climate change worsened by defendants, and so on. Attribution science is improving, but oil companies will fight it vigorously.

Exxon’s internal work from the late ’70s and early ’80s suggests they knew. Doesn’t that undercut them?

Oil companies have moved beyond climate denial. They typically don’t argue climate change isn’t happening or isn’t largely caused by fossil fuels. Instead, they argue: U.S. oil companies’ contribution is small relative to global emissions; they didn’t directly emit most emissions (they sold fuels that others burned); and particular events like hurricanes involve natural variability. They’ll raise many factual arguments, but likely not deny climate change’s existence.

Let’s talk about your book, Global Climate Change and U.S. Law. Why did you write it?

That’s the third edition. The first came out in 2007. I began working on it in 2015 when I was in private practice, and it’s part of what led me to become an academic focused on climate. It’s a treatise on the full array of U.S. laws relevant to climate change. We don’t have a single climate statute, but many laws are relevant.

Another book I’ll mention is Legal Pathways to Deep Decarbonization of the United States (Environmental Law Institute, 2019), which I co-edited with John Dernbach. A technical “pathways” study came out in 2014, and we wanted a companion describing how laws must change to follow those pathways. About 30 lawyers wrote chapters, producing an 1,100-page book with more than 1,000 recommendations for federal, state, and local law. We then launched “Model Laws for Deep Decarbonization,” enlisting pro bono law firms to draft model laws and posting them online, with an emphasis on state and local action—especially important now as the federal government moves backward.

In terms of getting states to adopt measures, what successes have you had?

There’s been significant interest in areas traditionally within state authority, like building codes—important for energy efficiency and rooftop solar. And again, state and local action is especially important as federal policy moves backward.

There’s “plug-in solar” panels you can hang from balconies—Utah passed a law supporting it. Thoughts?

I saw an article about plug-in solar—hang a panel off a balcony and plug it in. It’s a great technique if your balcony faces the right direction.

It’s been used a lot in Pakistan and has had success in Germany. The challenge here is UL approval and related standards.

It works best with battery storage so you have power at night, and there are many battery systems available. Still, it’s maddening: electricity demand is about to soar due to data centers, and the administration is slashing wind and solar, making it harder to meet new demand.

It’s counterproductive to being energy dominant and AI dominant. Also, low prices may reduce drilling.

Exactly. There are contradictions: he promised lower energy prices, but if prices are too low, drilling isn’t economical. Despite pro-fossil policies, we’re not seeing more drilling; rig counts are down. No new coal mines. No new coal-fired plants. We may export more gas to Europe and Asia. But “energy dominance” contradicts slashing wind and solar, which have been major new electricity sources and among the cheapest. The fundamental objective seems to be maximizing both fossil fuel supply and demand.

Another kink: gas turbine manufacturers are backed up with orders.

Right. People think we can build natural gas plants quickly, but there are long delays. That’s not the case with wind and solar, and nuclear takes far longer. If you want more electricity quickly, you go with wind and solar.

Maybe the market will make that clear.

We’ll see how much he listens to markets and how clearly the market signals.

California has cap-and-trade. Is that effective, and is it in your model laws?

Yes. And there’s litigation in New York about it. In 2019, New York passed a climate law setting deadlines and requiring the Department of Environmental Conservation to issue regulations to meet reduction goals. The department was close to issuing “cap-and-invest” regulations—similar to cap-and-trade—but Governor Hochul pulled it at the last minute. A case is now pending in state court challenging her action. Earthjustice is leading the case for Sierra Club and others, arguing New York can’t meet its goals without it. The state says it will come up with something else, but hasn’t yet.

How would it work, and why did she pull it?

The regulation hasn’t been issued, so we don’t know specifics, but it would likely impose a fee on fuel entering the state, passed down to consumers, raising prices—politicians don’t like transparently increasing consumer prices. She also temporarily pulled New York City congestion pricing; we sued and won, and she later became a supporter. Congestion pricing has worked extremely well.

What has congestion pricing done for residents and visitors?

Only a small fraction of New Yorkers drive into Manhattan; many take mass transit. Drivers have been unhappy, but congestion is down, travel speeds are higher, and buses move much faster. It’s generated more congestion reduction and more MTA revenue than anticipated. Litigation hasn’t succeeded. The Trump administration has tried to shut it down without success.

What tactics have they used? And do we have air quality measurements yet?

They’ve sent letters demanding New York shut it down; New York responded, essentially, “see you in court.” The MTA sued quickly and has had success so far. We have strong measurements of reduced traffic, but not much air quality data yet. One note: New York air quality is dramatically better than in 1970 because cars are cleaner (catalytic converters, etc.), so there’s less pollution to reduce than decades ago—but reduced traffic should reduce pollution; we just don’t have the numbers yet.

Paris did something similar and saw differences from satellite data. There are satellite tools now that can identify emissions.

Yes, more satellites with detection capability are going up. One was lost, but several are still operating.

What are you excited about right now, and what concerns you most?

I’m excited about the model laws project—helping state and local legislators act. I’m extremely concerned about the administration’s broad attack on clean energy—costing jobs, killing economic activity, and likely raising consumer energy prices. We’re participating as amicus in litigation challenging some actions. We also run the Renewable Energy Legal Defense Initiative, arranging pro bono legal support for communities pursuing renewable projects facing local opposition, which has become a serious impediment to wind and solar.

Are you still seeing wind and solar projects moving forward?

Some, but fewer than we would have seen otherwise. Offshore wind requires federal approval; they stopped one project under construction (Empire Wind), though a deal seems to be forming to allow it. Other offshore projects have been canceled or paused. Onshore wind and solar are hurt by loss of tax incentives and new legal impediments.

Any surprising trends in climate litigation?

Internationally, there have been very positive developments. There’s a very recent International Court of Justice decision with strong language about governments’ legal obligations to act on climate change, grounded in human rights and other obligations. Although the ICJ decision isn’t binding itself, many countries’ domestic courts have been directing national governments to do more—Netherlands, Germany, France, Pakistan, Nepal, South Africa, Mexico, Brazil, and most recently Hungary. The U.S. is less receptive to these theories: it hasn’t signed many relevant human rights treaties, and we lack an environmental rights provision in the Constitution, and courts haven’t read one in.

Do you see a constitutional amendment as realistic?

I’d love to see it, but it’s extremely hard—supermajorities in Congress and ratification by two-thirds of states. Legislation is easier, and we haven’t gotten climate legislation. We should focus on that first.

Hungary surprised me—given its politics.

We’ll see how much the government implements what the court said. Perhaps the judiciary is more independent than expected; I haven’t studied it closely.

Mexico also surprised me—I’d thought enforcement was weak.

Mexico passed a fairly strong climate law, but there’s often a gap between statute and on-the-ground practice. That’s global. Under the Paris Agreement, countries pledged emissions reductions, but few meet them. The ICJ decision highlighted that countries have legal obligations to fulfill—and possibly exceed—those pledges.

Paris felt like Swiss cheese—no teeth.

That’s right. The ICJ is trying to change that by characterizing these as binding obligations. We’ll likely see domestic lawsuits using the ICJ decision as persuasive authority, asking courts to compel governments to act. It will be interesting to watch.

How do we make legal victories relatable to the public?

Litigation brought by young people has been especially compelling and has received strong press—organized by Our Children’s Trust. The Juliana case got attention though it didn’t succeed. The Montana youth case succeeded; there was also an important youth case in Hawaii. Those cases personalize who’s affected. Politically, it’s unclear how much this shifts outcomes because polarization is so tribal—blue versus red—making it hard to penetrate the other side.

Hopefully we reach persuadable voters in the center.

I’ve come to believe the most important battles are at the ballot box. Having people in Congress, the White House, and governors’ offices is crucial. Electoral politics are most likely to drive real impact on climate policy.

Any books or films you recommend, or actions people can take?

Local action matters—push local officials. I recommend Grist, a free daily newsletter with strong reporting on what’s happening. For legal updates, the Sabin Center has a monthly newsletter and blogs. In California, UCLA and Berkeley Law School publish Legal Planet, which is also terrific. I encourage my students to subscribe to both.

If you had an environmental Mount Rushmore, who would you put on it?

Bill McKibben, Naomi Oreskes, Gina McCarthy, and—of course—Al Gore.

I’ve had Bill and Naomi on the program, so now I need the other two. Thanks for being on the program. The model laws project makes a lot of sense. I’ll recommend it to policymakers.

If there’s anything else people should follow—social media, etc.—where can they find you?

I’m on Bluesky. And getting on the Sabin Center mailing list is a good way to follow what we’re doing.

Thanks again, and best of luck with your work.

Thank you so much. I enjoyed talking to you.

To learn more about our work at A Climate Change and how you can help us reach our goal of planting 30,000 trees in the Amazon this year, visit acclimatechange.com. Don’t forget to subscribe on Apple, Spotify, YouTube, or wherever you get your podcasts. If you liked this episode, please share it with a friend. See you next time.