How Private Enforcement Exacerbates Climate Change

Authors

Anna A. Mance, SMU Dedman School of Law

Abstract

Private enforcement-the practice of allowing private actors to directly enforce statutes or regulations-has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental protection to prioritize private interests in ways that are paradoxically exacerbating climate problems, deepening inequality, and placing a disproportionate burden on those with the least voice.

In advancing this claim, this Article makes three main contributions. First, I show how the political foundations of private enforcement in environmental law grew out of an era of crisis and were based on a widespread distrust of government. Second, I challenge the traditional rationale that private enforcers provide a powerful check on the influence of special interests and ideology in government. I argue that while private enforcers take on a range of actions related to environmental protection and climate change mitigation, private enforcement also operates as a largely unchecked form of special interest whose priorities serve to deepen the climate crisis. This reinforces not just particular interests but particular visions of environmentalism that are often at odds with the broader public interest in tackling climate change. This failure of private enforcement suggests the need to reexamine the ways in which private and public enforcement serve, or fail to serve, as checks upon the other. As a third contribution, I consider the benefits and drawbacks of potential prescriptions to address this particular failure of private enforcement.

Keywords

Comparative and Foreign Law, Environmental Law, Civil Rights, Education Law, Special Education, Immigration Law

Disciplines

Civil Rights and Discrimination | Comparative and Foreign Law | Education Law | Environmental Law | Immigration Law | Law

Recommended Citation

Anna A. Mance, How Private Enforcement Exacerbates Climate Change, 44 Cardozo L. Rev. 1493 (2023).
Available at: https://larc.cardozo.yu.edu/clr/vol44/iss4/6