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David Hodas

Although the United States Congress has refused to adopt any climate change legislation, significant national climate policy has emerging from President Obama’s administration’s use of agency regulatory authority under existing statutes, particularly the Clean Air Act. The story of how this came about is one of successful, sustained litigation before an environmental agency (US EPA) and in the federal courts. This chapter describes and analyses the almost two decades-long litigation that has been a central force in creating meaningful climate change law and policy in the United States, which has already produced major reductions in greenhouse gases from motor vehicles. Starting with a simple petition asking US EPA to regulate greenhouse gas emissions from motor vehicles, the ensuing administrative and judicial adjudication together with ancillary litigation and administrative action has transformed United States national climate change law from essentially non-existent to a potentially powerful set of legal instruments that could significantly reduce US greenhouse gas emissions. The litigation story contains both procedural and substantive administrative lessons about administrative, statutory and common-law adjudication. This chapter is a case study of how administrative and judicial adjudication placed the United States on a path of sustainable development, even though its courts did not view their role as one of promoting and creating sustainable development law or policy generally, or climate change policy particularly. This chapter demonstrates the fundamental legitimacy of judicial involvement in overseeing agency climate change action in a legal system without specialized environmental courts, but with only courts of general jurisdiction. Using only traditional legal doctrines and adjudicatory procedures, the courts ultimately empowered the US EPA to address the anthropogenic threat to global climate, the environment and human communities. The chapter examines the roles of agency procedure and decision-making, of public interest litigation and issues of judicial competency. The lessons from this litigation saga can be applied to adjudication in other jurisdictions because the legal approaches used here were based on traditional administrative law doctrines and procedures.

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David Hodas and Patrick DeArmey

Abstract

There are two regulatory experiments with regional and cross-border greenhouse gas emissions trading in North America that prove instructional to legal scholars exploring future design options and implementation problems. These systems, the Regional Greenhouse Gas Initiative and the Western Climate Initiative, have gone through numerous iterations and are still developing and expanding. Scholarship has emerged analysing the constitutionality and efficacy of the systems as well as carbon leakage issues and problems with linkage between systems. There is minimal case law regarding issues with either scheme. US EPA’s federal Clean Power Plan Rule may affect the existing regional state operated systems, so existing scholarship is limited and inherently speculative. Further analysis and discussion will be needed to address changes new federal law and international commitments may bring.