Climate Change Law: An Introduction

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Synopsis:

Climate change law is a new and rapidly developing area of law. This article explains the basic elements of climate change law, with a particular focus on those issues that promise to be important for a considerable time as well as the major factors that are driving the development of this law. The law of climate change is being constructed at the intersection of several areas of law, including environmental law, energy law, business law, and international law. Any effort to address climate change also raises issues about the proper role of state, local, and federal governments, as well as their relationship to one another. This article is intended to serve as an introduction to this complex and rapidly changing subject.

It is increasingly obvious that climate change will be a significant and permanent issue for the United States and the rest of the world. The translation of that issue into law is evidenced by the American Bar Association's recent publication of Global Climate Change and U.S. Law.1 The purpose of this article is to explain the basic elements of a new and rapidly growing area of law-climate change law-with a particular focus on those issues that promise to be important for a considerable time as well as the major factors that are driving the development of this law. The emerging law of climate change is being constructed at the intersection of several areas of law, including environmental law, energy law, business law, and international law. Any effort to address climate change also raises issues about the proper role of state and federal governments, as well as their relationship to one another. This article is intended to serve as an introduction to this complex and rapidly changing subject.

Part I of this article explains the key aspects of climate change science as reported by the Intergovernmental Panel on Climate Change (IPCC), describes U.S. greenhouse gas emissions, and outlines the basic policy choices for addressing climate change. Part II describes the most salient international laws related to climate change, including the Framework Convention on Climate Change, the Kyoto Protocol, and the European Union Emissions Trading System. The article then turns, in Part III, to state efforts on climate change, including regional efforts, as well as such legal tools as state renewable portfolio standards, net metering programs, and tax incentives for energy efficiency. Part IV discusses ways in which federal laws already address climate change, both directly and indirectly. Part V provides an overview of potential national climate change legislation.

I. FOUNDATION: SCIENCE, EMISSIONS, AND POLICY OPTIONS

Although the climate change issue has often led to polarizing debates, it is premised on a basic question: what do we do with the information in front of us? This section provides an overview of that information as well as the options we have.

A. Climate Change Science

The Intergovernmental Panel on Climate Change (IPCC or Panel) was established in 1988 by the World Meteorological Organization (WMO) and the United Nations Environment Program (UNEP) to provide "decision-makers and others interested in climate change with an objective source of information about climate change."2 The complexity, global scale, and importance of the climate issue could be authoritatively addressed only by an international body that could effectively and credibly ascertain what we know and do not know. The IPCC's role is to "assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide" concerning human-induced climate change.3 The Panel comprises several thousand climate scientists and other experts from around the world. The IPCC does not conduct independent research or recommend policies. The IPCC produces climate change assessments and technical papers that are regularly cited in legislation, judicial decisions, and other studies. …