Addressing Global Climate Change in an Age of Political Climate Change

By Daniels, Brigham | Brigham Young University Law Review, November 1, 2011 | Go to article overview

Addressing Global Climate Change in an Age of Political Climate Change


Daniels, Brigham, Brigham Young University Law Review


For a number of years, many within the environmental legal community have advocated an all-out attack strategy of forcing the United States to address climate change by bringing novel lawsuits under existing environmental laws. In 2007, with the seminal case of Massachusetts v. EPA, it appeared that those advocating this strategy had a winning game plan. That sense grew and solidified when the Obama Administration came to power.

However, over the past several years, we have seen a countervailing movement embodied in a growing resentment towards EPA and climate change policy in general. This movement has mobilized into a powerful political force. This Article raises the following question to those who want the United States to take action on climate change: given the backlash we have seen, is this no-holds-barred approach to force action on climate change the best way forward? While admittedly the answer to this question is a difficult one, this Article ultimately argues that it is not.

I. INTRODUCTION .................................................................... 1900

II. RELEVANT BACKGROUND ................................................... 1904

A. Bush Administration's Avoidance Behavior ............... 1905

B. Obama Administration's Endangerment Finding and Subsequent Regulation ............................................. 1908

III. POLITICAL BACKLASH ........................................................ 1914

A. Rhetoric ................................................................... 1915

1. Climate Change Skepticism ................................. 1915

2. Congressional Intent ........................................... 1917

3. Parade of Horribles ............................................. 1919

4. Greenmailing ...................................................... 1921

5. Rogue Agency .................................................... 1924

B. Attempts to Strip EPA of Power to Regulate Greenhouse Gases .................................................... 1924

C. Attempts to Cut EPA's Budget ................................ 1928

D. Calls to Diminish EPA Generally or Abolish It Completely .............................................................. 1930

IV. FRAGILE EARTH, FRAGILE LAW .......................................... 1932

I. INTRODUCTION

In a speech to policymakers, activists, scholars, and other interested members of the public, Professor John Holdren framed the challenge of climate change in these terms: "Our options in this domain are three. They are mitigation, adaptation, and suffering. Basically, if we do less mitigation and adaptation, we're going to do a lot more suffering."1 Holdren's observation in significant ways encapsulates the motivations of many who desire to reduce the future severity and impact of climate change. Given the stakes at issue, it is hardly surprising that those worried about the problem have called on all levels and branches of government to use their influence to address climate change. These efforts have produced a myriad of actions that one might hold up as examples of the fruits of this sort of labor, ranging from international agreements like the Kyoto Protocol to affirmative steps taken by a number of municipalities to reduce their carbon footprint. Despite all this success, however, meaningful actions were slow to emerge in Washington.

Decades of inaction by the United States government caused many to ask, "What can be done to get the United States to take action?" In seeking an answer to this question, some determined to bring litigation using existing environmental law in hopes of reducing the United States' greenhouse gas emissions and did so without much concern for negative political fallout. Examples of these are many, but to put this into context, consider a few. Using the Clean Water Act, an environmental nonprofit organization sued EPA to force it to consider climate change when approving a Total Maximum Daily Load (TMDL). …

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