The principles of “common but differentiated responsibility” (CBDR) and sustainable development play an integral role in international environmental law. However, these principles have come under fire in recent years, particularly from the global North, which has grown impatient over the lack of contribution on climate change from the emerging economies. Much effort has been expended toward the establishment of greater contribution, and the shouldering of greater responsibility from these countries. This Comment seeks to analyze principles of CBDR and sustainable development, two central pillars upon which international climate change law and policy have developed, and to identify the reasons for the present discontent of the global North over the obligations of emerging economies. It also seeks to establish a basis for a new interpretation of the principle of CBDR to assist the forward march of global climate change negotiations.

In 1990, when the Clean Air Act (CAA) was last substantially amended, atmospheric carbon dioxide levels stood at about 350 parts per million (ppm). Now they are close to 414 ppm, and the U.S. Congress has not amended the CAA despite broad public support for action.The law of democracy and the law of climate change are fundamentally intertwined: how politics and law will be able to adjust to the future turns on who decides the law, and so on the health of our democracy. So far, the prognosis is mixed: a vital protest movement, active state responses, and growing economic pressure for action are balanced against powerful political actors seeking stasis and a sclerotic jurisprudence that limits democratic responsiveness. This Comment discusses the ways inequities in climate change risk and in democratic representation mirror each other, addresses the U.S. Supreme Court’s inconsistent and unhelpful jurisprudence on democracy and agency action and how it tends to reinforce this crisis of democracy, suggests alternate theories of judicial action that would better reinforce democratic responsiveness, and reflects on a broadened conceptual framework for climate law—as a legal framework fundamentally concerned with preserving equity and democracy in the face of climate change, and as a foundation for climate action.