Courts and Climate Policy: Now and in the Future

Abstract:     
What can the courts offer to the development of policy on climate change? In this chapter, part of a larger multi-author work on climate change governance, Kirsten Engel argues that the judiciary can depoliticize climate change by filtering issues, such as climate science, that have become highly contentious in the public debate, bring the issue of climate change “home” to persons by identify real and highly sympathetic victims of climate change, demonstrate the need, or lack thereof, for new regulatory frameworks for climate change, and provide feedback to industry and regulators on the magnitude of the liability risk being faced by private parties for greenhouse gas emissions. Engel examines how the courts have already influenced climate policy, discussing its role in unleashing EPA regulation of greenhouse gas emissions under the Clean Air Act, for example, as well as the institutional characteristics that limit the ability or willingness of the courts to go out ahead of the political branches on an issue such as which industries have an obligation to reduce emissions and by how much. The chapter concludes with a look at alternative frameworks for federal climate legislation, such as cap-and-trade and cooperative federalism, and how Congress’s choice of structure may influence the future role of the courts in climate policy.

Keywords: climate change, role of courts, greenhouse gas emissions, regulation, cap-and-trade, cooperative federalism

Accepted Paper Series