Cultivating a Green Political Landscape: Lessons for Climate Change Policy from the Defeat of California's Proposition 23
Biber, Eric, Vanderbilt Law Review
Around the same time as federal climate change legislation died in the U.S. Senate, California voters overwhelmingly rejected a ballot initiative to repeal the state's climate change regulatory system. The opposition to Proposition 23 was so successful in part because no major business interests within the state were willing to support the Proposition. That support was lacking partially because many of those interests had already adjusted to, or benefited from, California's long history of legislation on energy efficiency and renewable energy. The campaign over Proposition 23 suggests the long-term importance of thinking strategically about how environmental law and policy can create interest groups that will resist repealing environmental laws and support expanding them. Thus, the most important factor in selecting environmental policy options may not be whether those options are the most economically efficient or the most likely to pass today, but whether they will encourage future progress on the policy question. This conclusion stands in sharp contrast with the current emphasis in the existing climate change policy literature on efficiency and short-term politics. It is also in tension with a significant legal and policy literature that is sharply critical of compromise with powerful vested interests in environmental law.
I. WHY PROPOSITION 23 LOST 403
A. The Background of Proposition 23 403
B. The Interest Group Landscape for the Proposition 23 Campaign 411
C. California's Energy-Policy History and Its Political and Economic Impacts 420
II. IMPLICATIONS FOR CLIMATE CHANGE POLICY AND ENVIRONMENTAL LAW 425
A. The Benefits of Strategically Using Interest Groups to Build Environmental Law 428
B. Further Implications: The Scientist Myth, the Importance of Efficiency in Climate Change Policy, and the Role of States in Climate Change Policy 434
III. RESPONDING TO OBJECTIONS: DEMOCRACY, SUBOPTIMAL OUTCOMES, AND STRATEGIC OPPOSITION 440
IV. LESSONS FROM A COMPARISON OF CALIFORNIA AND FEDERAL EXPERIENCES WITH CLIMATE Change Policy 447
In the fall of 2010, two major political battles over climate change in the United States reached their climax. At the federal level, efforts to enact comprehensive climate change legislation - already in doubt after the Senate refused to consider legislation passed by the House - were terminated for the near future by a landslide win for conservative Republicans, who are overwhelmingly hostile to climate change legislation, in midterm Congressional elections.1 At the state level, California voters considered Proposition 23, a ballot initiative that would have effectively repealed the state's comprehensive global warming statute (AB 32, enacted in 2006). 2 Yet despite the fact that the 2010 elections produced a wave of conservative Republican victories across the United States, from the local to the federal level, Proposition 23 lost handily, by over twenty points.
Why did Proposition 23 lose by such a large margin? An obvious answer might simply be that California is unique in the United States, politically, culturally, and economically, and therefore is far more receptive to aggressive environmental legislation. But that facile answer would, first of all, not be entirely correct3 and, second of all, would beg the questions: Why is California so different on environmental issues? And might the reasons behind that difference inform the development of climate change policy at the federal level?
As it turns out, California is different in significant part because of history, specifically the long history of its aggressive efforts to develop energy policy that increases efficiency and reduces dependence on fossil fuels. Those policies have, over the years, created an interest group landscape that is supportive of stricter efforts to restrict carbon emissions and hostile to efforts to repeal energy efficiency and renewable energy mandates - as shown by the details of the campaign over Proposition 23. …