Court-created solutions increase warming—triggers carbon leakage and old technology lock-in which stifles renewables

The Second Circuit, in allowing the plaintiffs’ claim for an injunction to proceed, presumed that any reduction in carbon emissions, no matter how bluntly calibrated or poorly targeted, contributes in some measure, however small, to the overall project of reducing the long-term injurious consequences of climate change. That simply is not so. Wielding the sledgehammer of injunctive relief against arbitrarily selected groups of carbon emitters and producers is as likely to exacerbate as to ameliorate those injurious effects. For one thing, many climate change scholars have identified the phenomenon of “carbon leakage,” whereby poorly thought out carbon reductions in one section of the global economy result in increased emissions elsewhere, as fossil fuel price reductions, coupled with the tendency for global corporations to shift their bases of operations to avoid stringent regulation, spark rising energy consumption in other jurisdictions.38 Such leakage would exacerbate the injuries about which the plaintiffs complain since carbon emissions from non-defendants—even those halfway around the world—“cause” coastal erosion in exactly the same undifferentiated and attenuated manner as do carbon emissions from the defendants they have randomly targeted. Moreover, there are serious complexities involved in any process of carbon reduction, particularly with respect to the questions of how fast and how much. Slash emissions too fast or too far, and courts risk forcing industry to prematurely retire capital stock, “locking in” inferior technology as companies rush to innovate quickly enough to comply with short-term reduction requirements.39 Such a result would not only entail severe and irretrievable economic costs, but it would exacerbate the longrun harms of climate change by distorting the renewable energy market. On the other hand, slash emissions too little or too slowly, and courts do nothing to ameliorate climate change, while still shaping entitlements in a way that can only inhibit the emergence of any ultimate legislative solution.40 To ask a court to strike the right balance, given that even a stringent injunction will have no statistically significant impact on global temperatures, is to ask it to do the impossible.