Climate Change and the Convergence of Environmental and Energy Law
24 Fordham Environmental Law Review 180 (2013)
25 Pages Posted: 24 Feb 2013 Last revised: 4 Jun 2013
Date Written: February 22, 2013
This symposium essay explores the growing convergence of environmental law and energy law, particularly at the state level, in an effort to provide some helpful insights with regard to both the last 20 years of environmental law and where it may head in the future. Many will agree that climate change is one of today’s most difficult and most important environmental law challenges. It is also one that, despite major efforts, Congress has failed to address in any meaningful way and does not appear prepared to address any time soon. At the same time, however, in recent years, states and local governments have enacted significant policy measures to address climate change. These include California’s GHG limits on automobile emissions that were ultimately adopted by the federal government; state renewable portfolios standards to spur the growth of renewable energy in the electricity sector; state legislation to limit or prohibit the use of new coal-fired electricity generation; state and local support for distributed generation of wind and solar energy and increased green building efforts; and, of course, California’s Global Warming Solutions Act, the state’s most recent and ambitious effort to cap GHG emission in the state and place significant limits on those emissions from power plants, vehicles, and other sources. A hallmark of each of these state policies is an effort by lawmakers to bridge the environmental/energy law divide. While this reliance on energy law tools to meet climate change goals has many positive benefits, it also has risks. Using energy policy to address climate change at the state level often requires impacting regional energy markets, such as electricity and transportation fuels, rendering states vulnerable to legal challenges that they are discriminating against interstate commerce. The resulting lawsuits and potential lawsuits highlight the difficulty states face in attempting to address climate change, where limiting the scope of regulation to in-state sources will result in little progress, particularly as compared to the historic regulation of traditional air, water, and land pollutants with significantly more localized effects. This essay discusses briefly the fields of environmental law and energy law, including the barriers that historically existed between them and how those barriers have partially broken down in recent years. It then considers in more detail some of the energy law-related climate change initiatives listed above to highlight the growing links between the two fields and some of the legal challenges that have followed. Last, it ends with some observations regarding the convergence of the two fields and what it may mean for the future of environmental law.
Keywords: Climate Change, Environmental Law, Energy Law, Renewable Portfolio Standards, Low Carbon Fuel Standard, Global Warming Solutions Act, Next Generation Energy Act
JEL Classification: Q2, Q3, Q4
Suggested Citation: Suggested Citation