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

39 ELR 10732 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Developing a

Comprehensive Approach to Climate

Change Mitigation Policy in the

United States: Integrating Levels of

Government and Economic Sectors

by Raymond B. Ludwiszewski and Charles H. Haake

Raymond B. Ludwiszewski is former General Counsel, U.S. Environmental Protection Agency, and

currently a partner in the Washington, D.C., oce of Gibson, Dunn & Crutcher LLP. Charles H.

Haake is Of Counsel in the Washington, D.C., oce of Gibson, Dunn & Crutcher LLP.

Addressing global climate change through the regula-

tion of greenhouse gas emissions is an issue of broad

national and international concern, touching on

many facets of this country’s environmental and economic

well-being. Craf ting a workable solution will require a

coordinated and comprehensive approach, for only such an

approach will maximize the environmental benets of regu-

lation whi le not imposing undue costs on already strained

American businesses and consumers. Developing a Compre-

hensive Approach to Climate Change Mitigation Policy in the

United States: Integrating Levels of Government and Economic

Sectors by Peterson, McKinstry, and Dernbach highlights

two threshold questions that policymakers face in addressing

greenhouse gas regulation.1 First, given that federal action to

address greenhouse gas emissions is a virtual certainty, what

role should be left for states and localities to play? Second, in

crafting a federal response, do the existing authorities under

the Clean Air Act2 provide a workable framework for green-

house gas regulation, or is a new regulatory regime required?

Ludwiszewski and Haake are both members of the rm’s Environmen-

tal and Natural Resources Practice Group and represent various seg-

ments of the automobile industry in litigation concerning greenhouse

gas emissions and global warming issues, including Green Mt. Chrys-

ler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 37 ELR

20232 (2007) and Central Valley Chrysler-Jeep, Inc. v. Goldstene,

2008 U.S. Dist. LEXIS 82882, 37 ELR 20309.

1. omas D. Peterson et al., Developing a Comprehensive Approach to Climate

Change Mitigation Policy in the United States: Integrating Levels of Government

and Economic Sectors, 39 ELR (E L.  P’ A. R.) 10711 (Aug.

2009) (a longer version of this Article was originally published at 26 V. E-

. L.J. 227 (2008)).

2. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

On the rst question, Peterson et al. suggest that states will

continue to play a signicant role in shaping climate change

regulation in conjunction with federal action. e authors’

conclusion, however, begs the threshold question of which

level of government--the state governments or the federal

government–is best suited to enact requirements addressing

climate change that balance the various competing interests

and reach the optimal level of stringency.

e proper allocation of regulatory responsibility between

the state and federal governments has been described by one

commenter as the pursuit of the best “jurisdictional match.”3

Often this match is not made, thus resulting in a “ jurisdic-

tional mismatch”—that is, “[t]he federal government regu-

lates in ma ny a reas where there is no clear analytical basis

for federal regulation,” while “[a]t the same time, the federal

government is relatively absent where a stronger federal pres-

ence could be justied.”4 is commenter concludes, cor-

rectly in our opinion, that “[g]lobal climate change policy

is a prime example of increasing state activity where federal

action would provide for a greater jurisdictional match.”5

ere are many reasons why the federal government is best

suited to regulate greenhouse gas emissions. Deciding the

optimum level of regulation entails an analysis of the rela-

tive costs and benets of more stringent regulations; in other

words, regulations will be set at the level where the benets of

additional stringency is outweighed by the additional costs to

society. In the case of greenhouse gas emissions, often neither

the costs nor the benets of a state regulation are f ully inter-

nalized within the regulating state, thus mak ing that state

3. Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14

N.Y.U. E. L.J. 130, 175 (2005).

4. Id. at 132.

5. Id. at 175.

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.