Blowing Hot Air: An Analysis of State Involvement in Greenhouse Gas Litigation

Abstract

Thirty-seven states have been involved in at least one of the lawsuits challenging the Environmental Protection Agency’s greenhouse gas regulations. By constructing a dataset of potential influences on state involvement, I empirically test states’ motivations to enter the litigation as either intervenors or parties. I find that the states' involvement is strongly associated with their political affiliations and somewhat associated with potential industry costs. Meanwhile, differences in climate change risks and public opinion do not drive the states' decisions. This Note argues that such state involvement in environmental litigation is undesirable and that the Environmental Protection Agency could stem such political actions by analyzing the costs and benefits of major environmental regulations by state. State-by-state analyses would highlight important distributional impacts among states, which would push Congress to alleviate those concerns through the political process. Meanwhile, such state-by-state analyses would also make overtly political decisions by state leaders more transparent; constituents could use the state-specific analyses to evaluate the positions of their leaders. Solving the tension caused by the differential impacts of climate change and climate change mitigation strategies in the United States could have helpful implications for international climate change treaties. Furthermore, this Note’s findings that the positions of state attorneys general are largely determined by politics in the environmental arena could suggest critical scrutiny of the motivations behind their positions in other litigation.

Keywords: climate change, greenhouse gases, EPA, states, environmental litigation

JEL Classification: K23, K32, K41