In every system built on trust, duty is not optional—it is foundational. When the health and future of a society’s most vulnerable are at stake, the obligations of those in power rise to their highest. Yet, in the United States, a dangerous gap has opened between the theoretical duties of public office and the reality of legal accountability. This gap is now on stark display as federal agencies, under political directive, move to strip carbon dioxide (CO₂) of its classification as a dangerous pollutant—ignoring decades of scientific consensus, legal precedent, and the explicit risks to children, elders, and generations yet unborn (see Massachusetts v. EPA, 549 U.S. 497 (2007); EPA Endangerment Finding, 74 Fed. Reg. 66,496 (Dec. 15, 2009)).
The scientific community is nearly unanimous: CO₂-driven climate change constitutes a direct, growing, and disproportionate threat to human health, economic stability, and national security. Every major scientific institution and federal body—including the National Academy of Sciences (NAS), the Intergovernmental Panel on Climate Change (IPCC), and the Centers for Disease Control and Prevention (CDC)—has affirmed these risks (see IPCC Sixth Assessment Report, 2021; NAS, Climate Change: Evidence and Causes, 2020; CDC, Climate Effects on Health). Federal law, most prominently the Clean Air Act, was written to mandate protection of public health, not its sacrifice for commercial expedience (Clean Air Act, 42 U.S.C. § 7401 et seq.).
Despite this, recent administrative actions have sought to undo the legal safeguards that recognize CO₂ as hazardous, using arguments that defy not only science but basic standards of economic and ethical reasoning. The record is clear: these actions are not honest errors, nor are they justified by credible economic necessity (see Stern Review: The Economics of Climate Change, 2006; U.S. Fourth National Climate Assessment, 2018). They are a knowing, willful abandonment of the duty to protect—the core function of public office (see Prince v. Massachusetts, 321 U.S. 158 (1944); State v. Williquette, 385 N.W.2d 145 (Wis. 1986)).
This paper examines the legal, scientific, and ethical failures at the heart of current CO₂ deregulation. It dissects the doctrine of official immunity that is now invoked to shield decision-makers from accountability (see Nixon v. Fitzgerald, 457 U.S. 731 (1982)), showing how it has drifted far from constitutional intent and basic principles of fiduciary responsibility. It details the overwhelming evidence of bad faith and foreseeable harm. And it proposes concrete legal and policy pathways to restore accountability—especially where children, elders, and the public trust are at risk.
The question is not simply whether federal officials have made the wrong call. It is whether the law will continue to treat the deliberate exposure of the vulnerable to preventable harm as a protected “official act”—or whether, at last, performance of public duty will be made the condition for public protection.
The case that carbon dioxide (CO₂) is a dangerous pollutant is among the most thoroughly established in the history of environmental science. CO₂ is the principal greenhouse gas driving anthropogenic climate change, with impacts ranging from immediate public health crises to long-term civilizational risk (IPCC, 2021; U.S. Global Change Research Program [USGCRP], 2018). The mechanisms are not in dispute: elevated atmospheric CO₂ traps infrared radiation, resulting in rising global temperatures, altered weather patterns, more frequent extreme events, ocean acidification, and ecosystem destabilization (IPCC, 2021).
Impact on Human Health and Welfare:
Children and elders are acutely vulnerable to climate-driven hazards. Increased asthma, respiratory illness, heat-related deaths, malnutrition, and displacement are already documented among children (Centers for Disease Control and Prevention [CDC], n.d.; USGCRP, 2016). Elders face heightened risks from heat waves, infectious disease, and infrastructure failure (CDC, n.d.; USGCRP, 2016).
The economic and societal costs are mounting. Floods, droughts, wildfires, and extreme weather linked to climate change have inflicted hundreds of billions in damages in the United States alone (USGCRP, 2018; Stern, 2006).
Scientific Consensus:
Virtually every scientific body with relevant expertise—including the National Academy of Sciences (NAS), American Association for the Advancement of Science (AAAS), World Health Organization (WHO), and the Intergovernmental Panel on Climate Change (IPCC)—affirms that continued CO₂ emissions at current or rising levels will create irreversible harms to public health, economic security, and global stability (NAS, 2020; IPCC, 2021; WHO, 2021). Multiple peer-reviewed studies confirm scientific agreement at or above 97% among climate experts (Cook et al., 2016).
The U.S. Environmental Protection Agency (EPA), after exhaustive scientific review and public comment, formally found in 2009 that CO₂ and other greenhouse gases “threaten the public health and welfare of current and future generations” (EPA, 2009, p. 66,496). This finding was based on a synthesis of decades of peer-reviewed research, recommendations from the IPCC, and assessments by U.S. government scientists (IPCC, 2021; USGCRP, 2018).
Section II: The Special Duty to Protect Children, Elders, and Future Generations
The American legal system consistently imposes a heightened duty of care toward children, elders, and other vulnerable populations. This duty is codified in both federal and state statutes and is reinforced by case law that makes clear: omission, indifference, or reckless endangerment is not excusable for those in a position of responsibility (Prince v. Massachusetts, 1944; State v. Williquette, 1986).
The legal requirement to protect the vulnerable is not limited to criminal statutes; it is foundational in American common law and echoed in contract, fiduciary, and trust doctrine.
Modern environmental and constitutional theory increasingly recognizes a duty to protect not only current, but future generations (UN Convention on the Rights of the Child, 1989; Minors Oposa v. Secretary of the Department of Environment and Natural Resources [Philippines], 1993). The public trust doctrine, by its logic, obligates current officeholders to safeguard resources and the environment for those yet unborn (Sax, 1970).
Internationally, the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement (2015) have codified the consensus that CO₂ emissions must be sharply reduced to prevent catastrophic warming and its disproportionate impacts on the most vulnerable populations (UNFCCC, 2015).
In Massachusetts v. EPA (2007), the Supreme Court held that greenhouse gases, including CO₂, are “air pollutants” under the Clean Air Act. The Court ruled that the EPA has a statutory duty to regulate these pollutants if they are found to endanger public health or welfare—a finding the EPA had already documented in its scientific record (Massachusetts v. EPA, 2007). The Court explicitly rejected the argument that the EPA could defer regulation on economic or political grounds when scientific consensus established danger.
Since Massachusetts v. EPA, federal courts have upheld the EPA’s Endangerment Finding and the requirement to regulate CO₂, affirming that the science is not reasonably in dispute and that public health protection is a non-negotiable legal mandate (Coalition for Responsible Regulation v. EPA, 2012; American Electric Power Co. v. Connecticut, 2011).
The scientific and legal consensus is unambiguous:
Section III: Immunity Doctrine Critique
The doctrine of absolute presidential immunity for official acts was established by the U.S. Supreme Court in Nixon v. Fitzgerald (1982). In that case, a former federal employee sued former President Nixon for damages, alleging wrongful termination as retaliation for whistleblowing. The Court held that the President is “entitled to absolute immunity from damages liability predicated on his official acts,” regardless of motivation, malfeasance, or the quality of the decision-making process (Nixon v. Fitzgerald, 1982, p. 749).
The rationale was institutional: to “ensure that the President’s energies are not diverted by private lawsuits,” and to “preserve the independence of the Executive Branch” (p. 751). The Court acknowledged that such immunity might “leave the nation exposed to potential mischief,” but considered impeachment and political remedies as sufficient checks (p. 753).
This doctrine, however, represents a sharp departure from both constitutional text and the framers’ intent.
Other democracies recognize the need for some form of executive immunity, but virtually none grant the blanket, unconditional shield seen in the U.S.
Section IV: The Bad Faith of Regulatory Rollback
The rollback of CO₂ protections by federal agencies is not the product of uncertainty or honest policy error. The public record—including agency documents, official statements, and whistleblower accounts—demonstrates that decision-makers were fully aware of the overwhelming scientific consensus on CO₂’s dangers, and that they knowingly acted against both the evidence and the law (EPA, 2009; U.S. Government Accountability Office [GAO], 2021).
Key Evidence:
When science and legal precedent were no longer plausible targets, opponents of CO₂ regulation shifted to manufacturing “doubt” and invoking spurious economic justifications. This strategy, pioneered by tobacco and lead industry lobbyists, has become the default for climate denial (Oreskes & Conway, 2010).
Tactics Documented:
The record shows that these rollbacks were not neutral policy disagreements, but willful actions taken in disregard of known risks and the explicit statutory mandate to protect public health. In any other context—corporate, fiduciary, or professional—such conduct would be grounds for removal, liability, and potentially criminal sanction (Bogert & Bogert, 2017; Restatement (Third) of Trusts, § 78).
Section V: The Commerce Defense Preempted
In U.S. constitutional and statutory law, the protection of public health and welfare takes precedence over economic and commercial interests when the two conflict—especially where the threat is foreseeable, severe, and affects protected classes such as children and elders (Jacobson v. Massachusetts, 1905; Massachusetts v. EPA, 2007).
The economic argument against CO₂ regulation collapses under scrutiny. Leading economic assessments, including the Stern Review (2006), the U.S. National Climate Assessment (2018), and repeated findings by the IPCC, conclude that the costs of inaction on climate far exceed the costs of regulatory action—both in direct economic losses and in health, safety, and human capital.
Section VI: Legal, Legislative, and Advocacy Pathways
The legal record supports a test-case challenge to official immunity where failure to protect is clear, the evidence of bad faith is overwhelming, and harm to protected classes (children, elders, future generations) is foreseeable and well documented. The theory is straightforward: Immunity cannot shield willful, knowing endangerment or betrayal of core duties.
Key Litigation Steps:
Sample Statute:
“No officer or agent of the United States shall be immune from civil or criminal liability for acts or omissions constituting willful or reckless endangerment, abuse, or neglect of children, elders, or other legally protected vulnerable classes, even if performed under color of official duty.”
Sample Amendment:
“Immunity for public officials shall not extend to acts or omissions that constitute knowing, willful, or grossly negligent endangerment of children, elders, or the public trust. Accountability is a condition of office.”
1. Build Broad-Based Coalitions:
2. Public Campaigns and Narrative:
3. Legislative Outreach:
4. Judicial Education:
5. Media and Public Testimony:
Conclusion and Call to Action
The law, science, and moral logic converge on a single point: No protection without performance. Immunity ends where willful endangerment begins.
When those in power knowingly place children, elders, and the public at risk—defying both evidence and duty—they forfeit any legitimate claim to legal protection.
The time for deference and delay has passed. It is now the responsibility of courts, legislatures, and the public to restore the principle that public office is a trust, not a shield for impunity.
Accountability is not optional. It is the condition for holding power at all.
Appendices
American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011).
Bogert, G. G., & Bogert, G. T. (2017). The Law of Trusts and Trustees (3rd ed.). West.
Centers for Disease Control and Prevention. (n.d.). Climate effects on health.
https://www.cdc.gov/climateandhealth/effects/default.htm
Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq.
Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012).
Cook, J., Oreskes, N., Doran, P. T., Anderegg, W. R. L., Verheggen, B., Maibach, E. W., ... & Green, S. A. (2016). Consensus on consensus: A synthesis of consensus estimates on human-caused global warming. Environmental Research Letters, 11(4), 048002.
Elder Justice Act, 42 U.S.C. § 1397j.
EPA. (2009). Endangerment and cause or contribute findings for greenhouse gases under Section 202(a) of the Clean Air Act. 74 Fed. Reg. 66,496 (Dec. 15, 2009).
Federalist No. 69 (Hamilton).
Gerhardt, M. J. (2000). The Federal Impeachment Process: A Constitutional and Historical Analysis (2nd ed.). University of Chicago Press.
Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892).
Intergovernmental Panel on Climate Change. (2021). Sixth assessment report.
Jacobson v. Massachusetts, 197 U.S. 11 (1905).
Massachusetts v. EPA, 549 U.S. 497 (2007).
Minors Oposa v. Secretary of the Department of Environment and Natural Resources, G.R. No. 101083 (S.C. Philippines, 1993).
Nixon v. Fitzgerald, 457 U.S. 731 (1982).
Oreskes, N., & Conway, E. M. (2010). Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. Bloomsbury Press.
Prince v. Massachusetts, 321 U.S. 158 (1944).
Restatement (Second) of Contracts § 237.
Restatement (Third) of Trusts § 78.
Sax, J. L. (1970). The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. Michigan Law Review, 68(3), 471–566.
Stern, N. (2006). The economics of climate change: The Stern review. Cambridge University Press.
State v. Williquette, 385 N.W.2d 145 (Wis. 1986).
U.S. Global Change Research Program. (2016). The impacts of climate change on human health in the United States: A scientific assessment.
U.S. Global Change Research Program. (2018). Fourth National Climate Assessment, Volume II: Impacts, risks, and adaptation in the United States.
U.S. Government Accountability Office. (2021). Climate change: Agencies have data but need to ensure climate resilience policies are based on best available information.
United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
United Nations Framework Convention on Climate Change. (2015). The Paris Agreement.
Whitman v. American Trucking Associations, 531 U.S. 457 (2001).
World Health Organization. (2021). Climate change and health.
Children and Elders:
Executive Immunity:
Fiduciary and Public Trust:
Model Statute:
“No officer or agent of the United States shall be immune from civil or criminal liability for acts or omissions constituting willful or reckless endangerment, abuse, or neglect of children, elders, or other legally protected vulnerable classes, even if performed under color of official duty.”
Model Amendment:
“Immunity for public officials shall not extend to acts or omissions that constitute knowing, willful, or grossly negligent endangerment of children, elders, or the public trust. Accountability is a condition of office.”