Academic journal article Harvard Journal of Law & Public Policy

Heat Expands All Things: The Proliferation of Greenhouse Gas Regulation under the Obama Administration

Academic journal article Harvard Journal of Law & Public Policy

Heat Expands All Things: The Proliferation of Greenhouse Gas Regulation under the Obama Administration

Article excerpt

During his campaign for the White House, Barack Obama called for decisive action to address the threat of global climate change. Specifically, then-Senator Obama called for reducing, by 2050, greenhouse gas (GHG) emissions in the United States by 80% through the imposition of a "cap-and-trade" regime. (1) He pledged that, as President, legislation to achieve this goal would be among his top priorities. (2)

Congressional leaders also endorsed decisive action on climate change. In 2009, the House of Representatives enacted a far-reaching climate bill that included a cap-and-trade system and endorsed the 80% reduction goal. (3) The Senate refused to follow suit, however, and it appears unlikely that a cap-and-trade bill or other meaningful climate legislation will pass Congress in the next two years. (4) But the death of cap-and-trade does not mean the death of greenhouse gas regulation.

Although Congress did not put climate change legislation on President Obama's desk, the Obama Administration still moved ahead with various regulatory measures to control GHG emissions. (5) Using authority under the Clean Air Act and other existing environmental statutes, the Environmental Protection Agency (EPA) and other agencies have been expanding existing regulatory programs to cover GHG emissions and address climate change concerns. (6) Several measures are already in place and others are in the regulatory pipeline, although citizen suit litigation could produce still more.

These initiatives will produce a dramatic expansion of federal environmental controls on private economic activity. Taken together, these controls could represent the largest expansion of federal environmental regulation in decades, and yet they have never been explicitly endorsed, let alone authorized, by Congress. Worse still, there is little reason to believe that these measures will do much to reduce the threats posed by global climate change. Extensive GHG regulation will not notably mitigate projected warming.

Federal regulation of GHGs is not entirely the Obama Administration's doing. Federal regulatory authority over GHGs was facilitated--if not mandated--by the Supreme Court's decision in Massachusetts v. EPA. (7) Yet the Obama Administration has not resisted this newfound authority. To the contrary, the EPA and other agencies have embraced their opportunity to extend regulatory authority into new fields and have rejected legislative proposals to cabin their newfound power.

The extension of federal regulatory authority to control GHG emissions under existing statutory frameworks is a mistake. Such regulation will impose substantial regulatory costs for minimal environmental gain. Centralized regulatory authority offers little hope of controlling the planetary thermostat. Instead, mitigating the threat of anthropogenic climate change requires a different approach--one that is not authorized under existing law and that does not require dramatic expansions of the federal regulatory state.

Part I of this Article explains how the push for GHG regulation is not new. An environmentalist petition filed in 1999 eventually led to the Supreme Court decision authorizing federal regulation of GHGs under the Clean Air Act. Part II outlines the Obama Administration's use of this authority. The Clean Air Act, however, is not the only source of federal regulatory authority over GHGs. Part III provides an overview of some of the other regulatory initiatives undertaken by the Obama Administration to limit GHG emissions, or otherwise address the threat of global climate change.

The expansion of federal regulation does not guarantee an increase in environmental protection. In the case of GHGs, expansive regulatory action is unlikely to reduce the threat of climate change. Rather, as Part IV explains, such efforts are likely to be futile in the near to medium term. If policymakers wish to reduce the threat of climate change, they need to chart an alternative course. …

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