Comment on Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors
| Date | 01 August 2009 |
| Author |
8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10727
Comment on Developing a
Comprehensive Approach to Climate
Change Mitigation Policy in the
United States: Integrating Levels of
Government and Economic Sectors
by Michael B. Gerrard
Michael B. Gerrard is Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School.
The article by omas D. Peterson, Robert B. McK-
instry Jr., and John C. Dernbach (PM&D) has two
central insights: (1) Any serious national eort to con-
trol emissions of greenhouse gases (GHGs) must continue
to leave importa nt roles to the states; and (2) It would be a
mistake to put too many eggs in the cap-and-trade basket.
A portfolio approach that utilizes many dierent regulatory
techniques is important.
I certainly agree with PM&D about these insights, a nd
they are correct that much of the current Congressional
debate has given too little attention to these considerations.
However, I have serious reservations about PM&D’s proposal
to use the mechanism of the national ambient air quality
standards (NAAQS) and state implementation plans (SIPs)
as the way to give states the vital roles they deser ve. I believe
there are alternative methods that would be superior.
I. Importance of Continued State Action
During the eight long years of the presidency of George W.
Bush, the states played a role similar to that of the isolated
centers of learning in Europe during the medieval period.
While the forces in power not only stalled progress but
attempted to spread a paralytic poison, some of the hinter-
lands developed their own thriving centers of thought and
innovation. In this way, A .D. 1001-1008 and A .D. 2001-
2008 have something in common.
During the latter period, the states were not only laborato-
ries of democracy—some of them were full-scale production
facilities. California was in front, as it often is, with its Global
Warming Solutions Act, A.B. 321; its Pavley Law, mandating
stringent air quality st andards for motor vehicles (if Wash-
ington would only get out of the way)2; and its application of
the California Environmental Quality Act to GHGs.3 In the
northeastern and mid-Atlantic states, t he Regional Green-
house Gas Initiative (RGGI) led the way with the rst U.S.
cap-and-trade program for GHGs.4 Several states pioneered
with renewable portfolio standards for their electric utilities,
and with all manner of other innovations, many of which are
now being studied for incorporation into a federal program.5
e reports of the climate change task forces created in many
of the states are a treasure trove of ideas and proposals.6
PM&D are absolutely right that a federal cap-and-trade
program will not in itself be su cient to achieve the neces-
sary emissions reductions. e form that the seemingly inevi-
table program will take is still uncertain, but it is unlikely to
thoroughly cover certain sectors of the economy t hat play
important roles in the GHG picture, notably buildings and
agriculture. ose sectors are more natura lly regulated (if at
all) at the state and local levels.
1. Global Warming Solutions Act of 2006, C. H & S C
§38500 (Deering 2006).
2. C. H S C §43018.5(a) (West 2007).
3. See Governor’s Oce of Planning and Research, CEQA Guidelines and Green-
house Gases, at http://www.opr.ca.gov/index.php?a=ceqa/index.html (last vis-
ited May 31, 2009).
4. For information on RGGI, see Pew Center on Global Climate Change, Region-
al Greenhouse Gas Initiative (RGGI), http://www.pewclimate.org/what_s_be-
ing_done/in_the_states/rggi/ (last visited May 31, 2009).
5. For examples of renewable portfolio standards, see P C. G C-
C, C C 101: S A 3 g.2 (2009).
6. See P L S. C. E. L S, T S R
C C: 50 S S (2009), available at http://www.abanet.
org/abapubs/globalclimate/docs/stateupdate_102908.pdf (last visited May 31,
2009).
Prior to assuming his current positions in January 2009, Michael
Gerrard spent 30 years practicing environmental law in New York
Arnold & Porter LLP; he is now Senior Counsel to that rm. He
G C C U.S. L (ABA 2007). He is a
Energy, and Resources.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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