Academic journal article American University Law Review

A Realistic Forecast for U.S. Climate Action

Academic journal article American University Law Review

A Realistic Forecast for U.S. Climate Action

Article excerpt

[C]limate change is real. The campaign of denial that prevents us from going forward is frankly as poisonous to our democracy as carbon pollution is to our planet. And yet I am confident we can beat that campaign. When we do, it . . . will strengthen our economy. It will redirect our future . . . . But to get this done, we do have to wake up, we do have to pay attention.1


United States Senator Sheldon Whitehouse, a Democrat from Rhode Island, has called himself "the most optimistic person in Congress" about Congress's ability to tackle climate change.2 Senator Whitehouse was elected to the Senate in 2006, a year in which Democrats won control of both the Senate and the U.S. House of Representatives.3 Considering that the outgoing Republican chairman of the Senate Environment and Public Works Committee, Oklahoma Senator James Inhofe, stated that climate change was the "greatest hoax ever perpetrated on the American people,"4 and incoming Democratic chairwoman Barbara Boxer, a Democrat from California, made addressing climate change a top priority, environmentalists hoped that legislative action on climate change was in sight.5 The House of Representatives passed an Obama Administration-approved cap-and-trade bill, the "American Clean Energy and Security Act of 2009," but the bill never moved in the Senate.6 Thus, over eight years later, including two years in which Democrats controlled the White House and both houses of Congress, Senator Whitehouse had to use the words "we can do this," rather than "we did this," when discussing climate change legislation that would cap carbon pollution.7 However, Senator Whitehouse remains optimistic despite Congress's inability to pass meaningful legislation in the past eight years.8

This Note begins with a background on domestic climate change law and policy, focusing on the U.S. Environmental Protection Agency's (EPA) regulation of greenhouse gases under the Clean Air Act and resulting litigation. Second, this Note proceeds to analyze public opinion on climate change and comments on the potential success of efforts to shape legislative discourse on climate change. Finally, this Note concludes that an upcoming U.S. Supreme Court decision on the extent of the EPA's authority to regulate greenhouse gases and the 2014 midterm elections will determine the fate of climate action for the foreseeable future.


In September 2013, the United Nations Intergovernmental Panel on Climate Change (IPCC), an international scientific body on climate change, concluded that "[w]arming of the climate system is unequivocal."9 Moreover, the report stated that it is "extremely likely" that human activity is causing the warming.10 Scientists have concluded that increased greenhouse gas emissions have caused glaciers to melt, sea levels to rise, and weather events to become more extreme.11 In May 2014, the Obama Administration released the third National Climate Assessment, an 841-page report produced by "the largest and most diverse team to produce a U.S. climate assessment," that detailed the observed and potential effects of climate change on the United States.12 The assessment stated that climate change is already causing more flooding for coastal as well as inland residents, and that wildfires in the West are becoming more severe because of climate change.13 Yet, Congress has not responded with any sense of urgency.14

A. The Clean Air Act

The Clean Air Act (CAA or "the Act") gives the federal government the power to regulate air emissions.15 The CAA regulates emissions of "air pollutants," which is defined as "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air."16 The EPA, the agency in charge of administering the CAA, determines whether an air pollutant "may reasonably be anticipated to endanger public health or welfare. …

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