Have We Begun the Third Age of Climate Law?
Some thoughts for Environmental History Week.
An international agreement in 1992 committed the world’s nations to addressing climate change but contained few specifics. The US ratified that agreement, but there was little concrete action here through the end of the 20th Century. As this century began, things looked optimistic, with both presidential candidates favoring reductions in carbon emissions. Promptly after taking office, however, George W. Bush reversed himself and fervently embraced fossil fuels. The time since then can be divided into three eras, each about a decade long.
Waiting for Congress: 2000-2010. So far as I can tell, the first serious American effort to cut emissions was the passage of California’s Pavley Act in 2002, which mandated cuts in carbon emissions from vehicles. It was followed by other actions by states. California followed up the Pavley Act with AB32, which attacked carbon emissions more broadly and established a cap-and-trade scheme. The Northeastern states adopted a cap-and-trade scheme of their own known as RGGI. In 2007, the Supreme Court held that EPA had jurisdiction to regulate greenhouse gases at the federal level. The general hope, however, was that these state and administrative efforts would be preludes to federal regulatory legislation.
That hope died in 2010, however. Even though Democrats controlled Congress and the White House, they were unable to get the Waxman-Markey climate bill through the Senate. Their control of Congress collapsed in the mid-term elections, making it clear that there would be no second chance. Republicans like John McCain and Lindsey Graham, who had formerly supported climate action, fled in fear of the rightwing opposition in their own party. It seemed clear that Congress was out of the game in terms of climate policy.
The Fallback Plan: 2010 to 2021. With Congress out of the picture, state and administrative climate action became the whole ball game rather than just warm-ups for federal legislation. During these dozen years, more states adopted serious policies, which became increasingly ambitious. The Obama Administration pursued a slew of climate actions, following the direction set by California for vehicles and issuing the Clean Power Plan to deal with power plants. The perils of relying on administrative action became clear with the surprise victory of Donald Trump in 2016, which was followed by four years of unrelenting attack on Obama’ legacy. When Trump was defeated in 2020, Joe Biden began ambitious plans to rebuild federal climate regulation.
Accelerating the Transition: 2022 to ?? In 2022, the Supreme Court made it clear that it would not tolerate really innovative regulations like Obama’s Clean Power Plan. EPA and other agencies still retained power to regulate greenhouse gases but would need to do so circumspectly. The Court said that only Congress could direct a major change in the energy system.
Two months later, Congress passed the Inflation Reduction Act, providing $369 billion to fund a fundamental revamp of the US energy system. This by no means made EPA regulations or state climate action irrelevant. What it did do, however, was to shift the focus away from piecemeal attacks on emissions, limited by geography or by industry-specific agency regulations. Instead, it became possible to think in terms of a comprehensive, nationwide energy transition.
Meanwhile, the pace of change has accelerated, creating new opportunities for federal, state, and private climate action. And having entered the game once, Congress made further legislative action more thinkable. We don’t know how this phase of US climate policy will play out, but we’re no longer in an era when states and agencies are left out in the cold, in lonely piecemeal pursuit of emissions reductions.
There are continuities between these eras. For instance, state climate programs began in the first era and have expanded through each successive era. The key difference between the three eras involves the role of Congress: first the expected prime policymaker, then out of the game entirely, and finally stepping back into the game in a big way.
Congress has a unique constitutional power to drive national policy. There are other powerful policy players, but none of them is positioned to play as central a role. An ideal policy should be comprehensive, durable, and nationwide. This is a combination that only Congress can achieve. The President has power to make national policy and can attempt to make the policy comprehensive through simultaneous actions by multiple agencies. However, these actions may not be very durable, as we saw in the transitions between Obama, Trump, and Biden. State policies can be comprehensive and durable but are limited in geographic scope.
Only Congress can combine all three traits into policies that are comprehensive, durable, and nationwide. For that reason, congressional action, and expectations about what Congress will or won’t do, are the fundamental factors in the policy landscape.