The document summarizes climate change law in the United States within the context of its federal system of government. It describes how the federal and state governments have shared authority over environmental issues, with the federal government establishing minimum standards that states can exceed. It outlines key pieces of federal legislation like the Clean Air Act and discusses state-led initiatives in the absence of federal action. It also examines the economic, political, and social challenges to further progress on climate change policy in the U.S.

1. C O M P A R A T I V E C L I M A T E C H A N G E L A W
U N I V E R S I T Y O F S T R A T H C L Y D E
S E P T E M B E R 1 8 , 2 0 1 4
E L E A N O R S T E I N
United States of America:
climate change law in the
federalism context

2. Federal structure
 The U.S. has been a federal constitutional democracy
since 1789 – having “voted” against British rule in
1776
 Under its written constitution, the federal
government has broad enumerated powers but the
balance is reserved to the 50 states

3. The states’ powers
 The police power: to protect the resources and
people in each state’s sovereign territory
 Interpreted as the basis for state environmental
regulation
 And embedded in federal (Clean Air Act) and state
statutes
 Federal government establishes the floor: states can
do better, but not worse
 States regulate the energy industry except for
interstate/cross border matters

4. What sources of law are we talking about?
 Congressional Law
 Executive (presidential) decisions
 Regulation by executive agencies
 Laws and regulations of states
 Judicial decisions

5. Federal regulatory authority
 Based on Supreme Court expansion of federal
powers under the constitutional provision that the
federal government alone regulates interstate
commerce
 There is now an enormous federal regulatory state
 The Clean Air Act today provides the basis for federal
regulation of air pollution.

6. The Clean Air Act has expanded

7. Background: federal climate policy 1990s-2008
 Under what some called a “petroleum-based
administration,” until 2008 only voluntary measures
prevailed on the federal level
 Giving rise to regional, state-, and city-based
approaches
 Out of the urgency for climate action

8. The failure of Congress
 A comprehensive climate change law passed the US
House of Representatives in 2009;
 In 2010, a comparable law failed to make it to the
Senate floor for a vote
 And hopes for congressional action on climate
ended.

9. A challenge or an opportunity?
 The federal system has provided both
 But mostly an opportunity, during the era of federal
silence, for states to take the lead and serve as
laboratories
 In historically unique alliances for cap-and-trade
programs in the Northeast and the West [a market
approach]
 In California’s 2006 statute setting statewide GHG
reduction targets [combines command-and-control
approach and market mechanisms – cap & trade]

10. As to the US approach to climate change
 It has been halting, decentralized, and ineffective on
the necessary scale
 The attack on climate science, and the denial lobby,
have held back federal climate action
 And litigation by states has been necessary to force
federal action has been a major component.

11. 13 States challenged federal EPA to regulate carbon
under the Clean Air Act
 Presenting a tremendous weight of scientific
evidence
 Supported by clear statutory language
 And, finally, the publication in January 2007 of the
IPCC’s Third Assessment Report

12. and in April 2007, the Supreme Court interpreted
the CAA
 to require regulation of carbon emissions from
mobile sources
 By the federal Environmental Protection Agency
 After 2009, under new management, the EPA made
necessary findings that GHGs threatened human
health and welfare and
 Promulgated extensive regulations limiting GHG
emissions from new automobiles.

13. Consensus about climate is growing,
 But the power of the fossil fuel industry
 Fears of economic consequences of moving off fossil
fuel
 And a well-funded denial lobby
 Still hold sway in many states and in the lower house
of Congress

14. In North Carolina, for example
 The State legislature prohibited scientists and
academia from discussion of the increased rates of
sea level rise;
 Two weeks later, a report established that SLR was
actually increasing at a far faster rate in that state
than anywhere in the world

15. Although climate change impacts are severe
 Drought in the US South and West
 Extreme precipitation in the Northeast
 Severe coastal storms, hurricanes, and flooding
 Wildfires in the West
 Disappearance of Western snowpack
 Sea level rise on the coasts and estuaries
 Vector-borne tropical diseases
 Melting Alaskan ice exposes coast to storms
 Climate disasters in 2012 cost the American
economy more than $100 billion.

16. Number of Days over 38 ° C

17. Increases since 1958 in very heavy precipitation

18. Subnational climate initiatives
 Including new regional innovations involving about
half the states
 And sometimes Canadian provinces or Mexican
states
 Gave rise to constitutional challenges: were states
usurping federal power?

19. The remaining states, however
 In the Southeast and Midwest
 Are coal-dependent and
 Responsible for the bulk of US GHG emissions

20. A new federal Clean Power Plan
 Will help cut carbon emissions from the power sector
by 30% from 2005 levels
 Will expand federal regulation to stationary sources
 And has already been challenged in court by 12 states

21. The effect of these rules:
 New federal clean automobile rules and state power
plant rules + recession likely to result in the US
meeting its Copenhagen pledge: 17% reduction below
2005 levels by 2020.

22. Current EPA and state regulation
 Under the Clean Air Act, both jurisdictions play a
role:
 New power plants (federally regulated)
 and existing power plants (state regulated)
 In June the EPA released guidelines: the states then
design programs that fit in those guidelines to
achieve assigned reductions.

23. Adaptation is now front and center
 even this modest proposal is under attack in
Congress and in at least 4 lawsuits in federal court.

24. Beachfront community in NYC
Rockaway Beach, Queens10/31/12
http://share.banoosh.com/2012/11/11/long-island-residents-in-
new-york-protest-against-power-outage/#!prettyPhoto-20719/0/
Hurricane Sandy

25. Manhattan during Sandy…
Consolidated Edison trucksaresubmerged on 14th Street near theConEd
power plant in NewYork. 10/29/12
http://bigstory.ap.org/article/coned-prepped-big-storm-got-even-bigger-1

26. Superstorm Sandy put adaptation on the agenda
 And forced government to recognize climate change
impacts
 In New York last year $1 billion available for
improving resiliency
 a multi-stakeholder collaboration designed
innovative rebuilding schemes, based on the work of
Amsterdam and London
 And power companies work with climate scientists
on a long-term climate impact assessment

27. Leading the state to review how we use energy
 Integration of renewable energy and energy
efficiency into the power system
 Greater decentralization and islanding
 Valuing low-carbon and no-carbon power
 Looking to models in UK, Germany, Denmark

28. The future:economic trends
 Growing domestic production of natural gas and crude oil continues
to reshape the U.S. energy economy, with crude oil production
approaching the historical high achieved in 1970 of 9.6 million
barrels per day
 With BAU, annual growth will average 0.8 million barrels per day
(MMbbl/d) through 2016, when it rises to 9.5 MMbbl/d
 Domestic crude oil production is expected to level off and then
slowly decline after 2020, natural gas production grows steadily,
with a 56% increase between 2012 and 2040, when production will
reach 37.6 trillion cubic feet/year
 Low natural gas prices boost natural gas-intensive industries and
suppress renewable investment

29. The future: social trends
 1 in 4 Americans think that global warming is not happening, and
half say they are "worried" about it.
 There has been an increase in the proportion of Americans who
believe global warming is not happening (23%, up 7 percentage
points since April 2013). But about two in three Americans (63%)
believe global warming is happening, a number that has been
consistent since spring 2013.
 .
 Fewer than half of Americans (38%) believe they personally will be
harmed a “moderate amount” or a “great deal” by global warming.
 By contrast, majorities believe that global warming will harm future
generations of people (65%) and plant and animal species (65%).

30. Will we keep our lovely autumn maples, birch and beech?