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U.S. Climate Policy at the Federal
Daniel Farber
Sho Sato Professor of Law, Berkeley
• The positions of the Bush and Obama
• Actions at the judicial level.
• Actions at the administrative level.
The U.S. Policy Under the Past
Two Presidents:
A Changing Political Landscape
The Bush Administration
• Bush had promised
during the 2001
campaign to regulate
carbon dioxide, he
repudiated this promise
quickly after the
• He also rejected the
Kyoto Protocol
• Basically, he only
supported voluntary
action by companies
The Obama Administration
• Proposals for climate
change legislation.
• Has been blocked by
• Is now pursuing EPA
• But Republicans may
push back.
U.S. System of Government
• Federal Power is divided between the President,
Congress, and the Courts.
Governance and Climate Policy
• States can pursue their own policies.
• The President has independent authority in
international matters.
• But domestic administration action must be
based on congressional legislation.
• Court interpret federal legislation, review
EPA’s actions, and decide common law cases
such as tort liability (delito civil).
Supreme Court and Climate Change
Background: The Clean Air Act
• Regulates air pollution.
• Applies to any substance in the area that
“endangers” human health or welfare
• Federal government sets permissible air
• Federal government also regulates new
vehicles and new plants directly.
• Has been successful in controlling air pollution
– big reductions since 1970.
Is CO2 an “Air Pollutant”?
• Bush Administration said no. Why?
• First, because Congress did not intend to
regulate climate change in this statute.
• Second, because there are better ways to
address climate change.
• So the Administration refused to limit CO2
from new cars and trucks.
First Supreme Court Issue: Standing
• A person must have “standing” to bring a
• Three elements of standing:
1 Injury in fact (harm to the plaintiff)
2 The harm is “fairly traceable” to the defendant
3 The court can remedy the problem.
The Supreme Court finds standing.
• “The harms associated with climate change are
serious and well recognized.”
• A scientific report“identifies a number of
environmental changes that have already
inflicted significant harms, including ‘the global
retreat of mountain glaciers [and] the accelerated
rate of rise of sea levels during the 20th century
relative to the past few thousand years . . . .’
Sea Level Rise
• If sea levels continue to rise as predicted, a
significant fraction of coastal property will be
‘either permanently lost through inundation
or temporarily lost through periodic storm
surge and flooding events.’”
• This harms the state’s sovereign interest in
preserving its territory.
The harm was significant
• “Considering just emissions from the
transportation sector, which represent less
than one-third of this country's total carbon
dioxide emissions, the United States would
still rank as the third-largest emitter of carbon
dioxide in the world, outpaced only by the
European Union and China.”
The Supreme Court says CO2 is a pollutant
• CO2 is covered by the
plain language of the
statute as a “substance
found in the air.”
• EPA can only consider
the science – does
climate change
endanger human health
or welfare or doesn’t it?
• Other factors are legally
Mass. v. EPA set the stage for
administrative action.
• The case was returned
to EPA, so that EPA
could make a decision
about whether
greenhouse gases
endanger human health
of welfare.
• The Bush
Administration delayed
making any decision
while it was in office.
• We will consider the
Obama Administration’s
actions later.
Other judicial action.
• A lower court held that the government has to
consider the effects of an action on carbon
emissions in environmental impact
statements. (mitigation)
• Other lower courts have required that the
government consider how climate change
could effect its activities. (adaptation)
Lawsuits Based on Torts
• Several lawsuits have been filed against
• The suits claim that these activities are a
“public nuisance” – meaning that they cause
an unreasonable impact on the public.
• Some suits are brought by state governments,
some by private parties like victims of
Hurricane Katrina.
• These are common law cases.
Judicial Rulings on Public
• Federal district courts have rejected the cases.
They say the issues have too many
repercussions to be considered by the courts.
• But two federal appeals held that the courts
actually can hear the cases.
• The issue is currently before the Supreme
Court. The Court will probably reject the
The Obama Administration and Climate
After the Supreme Court’s
• EPA has made a finding
about “endangerment,”
and issued regulations
under the Clean Air Act.
• In the meantime, the
government has
increased fuel efficiency
standards for cars.
Prius Hybrid
LEGAL Challenges to EPA’s
endangerment finding.
• Is CO2 a pollutant?
• Does EPA have to consider benefits of climate
change as well as harms?
• Does the law include risks outside of the
United States?
• Does EPA have to consider the economic
impact of its actions?
Judicial Review of Legal Issues
• Under the Chevron doctrine, the court will
accept EPA’s interpretation of the statute,
provided that it is reasonable and not
contradictory to the language of the statute.
• EPA’s legal determinations in the
endangerment doctrine should pass this test.
• Is the evidence strong enough to conclude
that the climate is changing?
• Is there enough evidence that the change is
caused by human activities?
• Is it reasonable to conclude that U.S.
emissions are a significant part of the
Judicial Review of Factual Issues
• Under Overton Park, an agency’s factual
determinations are upheld unless they are
arbitrary or capricious.
• This means that there must be a reasoned
explanation based on the administrative
record, even if the court would reach a
contrary conclusion.
• The endangerment finding should easily pass
this test.
Effect of Endangerment Finding
• Will apply to factories and power plants, not
just cars.
• Federal government will set standards for new
factories and plants based on the “best
available technology.”
• States will be charged with reducing
greenhouse emissions.
• Not an ideal system.
Advantages of Using the Clean Air
Act to Regulate Greenhouse Gases
• Does not require new legislation.
• EPA has the most expertise.
• May allow the U.S. to meet its Copenhagen
commitment of 17% reduction.
• Would help states that are already trying to
act on their own.
• Republicans and some Democrats from coal
states are trying hard to block this.
A Complex Governance System
• Except in constitutional matters, the role of
the courts is secondary to Congress and the
President, but they still have a great deal of
• If there is a basis in statute, EPA has broad
authority to make rules.
• But the political developments are crucial and
hard to predict.
The situation changes almost every
week. For updates:
Thank you!