Academic journal article American University Law Review

U.S. Climate Change Law: A Decade of Flux and an Uncertain Future

Academic journal article American University Law Review

U.S. Climate Change Law: A Decade of Flux and an Uncertain Future

Article excerpt


Climate change is the inescapable backdrop and impending horizon for contemporary existence. The reality of anthropogenic climate change is no longer subject to scientific debate. Greenhouse gases are accumulating in the atmosphere and the climate is warming. The question is not whether anthropogenic forcing of the climate system is occurring, but rather, what do we want to do about it and what is the role of law in this regard.1

The experienced and anticipated effects of climate change are pervasive. All states, from the greatest superpowers to the tiniest, lowest lying islands, are affected by climate change. The resulting political debate over how to limit and respond to climate change is ubiquitous. Yet the substance and outcome of this debate continues to vary widely across and within states. The nature of the debate and the contours of legal responses vary not only as a result of the usual socio-legal factors that shape legal systems,2 but also because climate change poses unique challenges that test the ingenuity of lawmakers and the capacity of the rule of law.3 As Fisher, Scotford, and Barritt explain, "[c]limate change gives rise to disputes and problems not easily addressed by existing legal doctrines and frameworks."4 Consequently, creative legal efforts to respond to climate change have proliferated and so, too, has the body of climate law scholarship exploring these anticipated, avoided, and actual legal responses.

In common with the legal system itself, even as climate law scholarship has matured,5 it has struggled to conceptualize and respond to the disruptive nature of climate change. climate law scholarship has expanded to consider increasingly numerous and complex questions related to everything from deforestation, adaptation, loss and damage to renewable portfolio standards, feed-intariffs, carbon sequestration, and solar radiation management. This scholarship contributes to efforts to conceptualize and respond to the discrete drivers and consequences of climate change, and it advances the "inevitably incremental and fragmented hard work of whittling away at the challenges climate change poses."6 Even as scholars unravel and parse the multitude of legal challenges to which climate change gives rise, there is a continuing need for more comprehensive analyses of how the multitude of multi-level, multi-scale efforts to respond to climate change add up, how they are evolving or, eroding, as the case may be and what this means for conceptualizing our ability to use law to create societies capable of minimizing the extent of climate change and thriving within an inevitably warmer and more variable climate. This Article builds on past work to help advance this line of analysis.

Just over a decade ago, in a 2008 article, Notes from a Climate Change Pressure-Cooker: Sub-Federal Attempts at Transformation Meet National Resistance in the USA,7 I examined the state of U.S. climate change law and policy during the waning hours of President George W. Bush's Administration. At the time, the article offered one of the earliest reviews of U.S. climate change law at multiple levels of governance and provided insight into how federal abdication of leadership was prompting a variety of efforts on the part of subnational and non-state actors to respond to climate change. in particular, the article explored the extent to which local, national, and international law were being used to "overcome federal resistance" and "force legal transformations in climate change policy-making in America."8

In 2008, the state of U.S. climate change law at the federal level looked bleak, but there were glimmers of hope. Progressive states, such as California, were developing comprehensive strategies to address climate change and, in the process, were pressuring Congress and the President to act on climate change. States, cities, and non-governmental organizations (NGOs) were drawing on a long history of social activism and adversarial legalism9 to find political, common law, and statutory footholds to prompt climate action. …

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