The Future of Environmental Law and Complexities of Scale: Federalism Experiments with the Climate Change Under the Clean Air Act
Hari M. Osofsky
University of Minnesota - Twin Cities - School of Law
December 30, 2009
Washington University Journal of Law and Policy, Forthcoming
Since its inception, the Clean Air Act (CAA) has served as an experiment in environmental governance models. Numerous books, articles, working papers, and public commentaries have dissected the CAA and proposed reforms. Often viewed as weaker than some of the other statutes being analyzed in this symposium, the CAA has achieved some successes that have been emulated, such as in its cap-and-trade programs. As importantly, the CAA has had to be flexible in responding to our evolving understandings of environmental problems. Whether through amendments or new regulatory regimes under existing provisions, the statute has and continues to serve as a key mechanism in the U.S. federal government’s efforts to respond to complex environmental challenges.
This Essay focuses on the CAA’s efforts to grapple with complexities of regulatory scale as a window into the new directions in environmental law which are the focus of this symposium. Air moves around over time, which interconnects the local with the international and the past with the future. The Essay uses the case example of disputes over CAA regulation of motor vehicles’ greenhouse gas emissions as a window into how multiscalar clean air regulation should evolve in light of changing demands for environmental law. It argues that for environmental problems which cross-cut levels of governance, flexible coordination and conflict mechanisms are critical. Future efforts at clean air regulation, whether through this Act or additional statutes and other governance mechanisms, should incorporate what I have elsewhere termed “diagonal” regulatory thinking.
The Obama administration Environmental Protection Agency (EPA) is moving rapidly under its CAA statutory authority to regulate greenhouse gases from motor vehicle emissions. As it does so, two disputes that took place during the second Bush administration frame its efforts. Specifically, the Obama administration has been working to implement the Supreme Court’s decision in Massachusetts v. EPA, which resulted from states and cities suing the EPA for its failure to use its regulatory authority under the CAA to address motor vehicle greenhouse gas emissions. Simultaneously, the Obama administration has granted California’s request for a waiver to regulate motor vehicle greenhouse gases more stringently than the federal government in conjunction with establishing a “National Program” to harmonize federal and state motor vehicle greenhouse gas emissions.
These disputes and their resolution represent an exciting moment in the Clean Air Act’s history as the statute evolves to address a complex environmental challenge. But their mix of conflict and cooperation also highlight the multiscalar environment in which environmental statutes are currently implemented. Both disputes involved complex interactions among the federal government, states, and cities, and current efforts at cooperation involve active engagement by many stakeholders. While these types of interactions are not entirely new under the CAA - the statute has long served as an example in scholarly and policy dialogue about federalism - the regulatory demands posed by climate change raise critical issues about the future of multiscalar governance.
This thought piece examines the way in which these conflicts over new applications of the CAA signal future directions for environmental law. The Essay does not attempt to provide specific policy prescriptions for cross-cutting motor vehicle regulations, a project which I am pursuing in another article; rather, it sketches a conceptual map for new directions indicated by these regulatory battles. Part I introduces the way in which the CAA grapples with issues of regulatory scale. Part II provides an overview of the two disputes and their resolution under the Obama administration, with particular attention to the scalar dynamics represented at each stage. Part III considers the broader policy and conceptual questions raised by these disputes for clean air regulation. Part IV concludes by exploring future possibilities for legal and policy approaches to multiscalar clean air regulation.
Number of Pages in PDF File: 21
Keywords: climate change, clean air act, environment, legislation, Massachusetts v. EPA, state waiver
Date posted: December 30, 2009
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