Empowering Local Autonomy and Encouraging Experimentation in Climate Change Governance: The Case for a Layered Regime

Date01 December 2009
12-2009 NEWS & ANALYSIS 39 ELR 11161
Local Autonomy
and Encouraging
in Climate Change
Governance: The
Case for a
Layered Regime
by Michael Burger
Michael Burger is an Acting Assistant Professor at New
York University School of Law. Portions of this Article
are adapted from It’s Not Easy Being Green”: Local
Initiatives, Preemption Problems, and the Market Participant
Exception,  U. C. L. R. (forthcoming, 2010).
Editors’ Summary
In the decades-long absence of federal action, local
governments—along with the states—have positioned
themselves at the forefront of climate change and sus-
tainability planning. ese eorts, however, confront
preemption problems imposed by federal “ceilings,”
or uniform national standards, under both existing
environmental law and pending climate change legis-
lation. In order to preserve the local autonomy values
that underlie local action, and to capture the benets of
regulatory experimentation that result from it, federal
climate change law should grant an agency, such as the
U.S. Environmental Protection Agency, the discretion
to approve local climate action plans that include mea-
sures that surpass federal ceilings.
Almost 20 years ago, world leaders gathered in R io de
Janeiro to declare a sha red commitment to reducing
emissions of carbon dioxide (CO2) and other green-
house gases (GHGs).1 en, in 1997, 160 nations signed the
Kyoto Protocol, which established legally binding limits for
industrialized countries on GHG emissions.2 And in Janu-
ary 2005, the European Union European Trading System
(EU ETS) became the world’s rst operating international
GHG emissions exchange. But the United States infamously
refused to ratify the Kyoto Protocol, the EU ETS has been
derided as a failure that has proted industry and led to
little in the way of actual GHG emissions reductions,3 and
the international community is now preparing for another
meeting—December’s UNFCCC Conference of the Parties
in Copenhagen—that will almost certainly see its nal ses-
sion pass without a new agreement. Meanwhile, average CO2
saturation levels continue to rise.4
While coordinated action on the national and interna-
tional sca le has faltered, U.S. cities a nd states engaged in a
kind of multistrategy “race to the top” have taken the lead in
planning and implementing climate change mitigation and
adaptation initiatives. ese initiatives have ranged broadly
from establishing regional GHG emissions trading regimes,
to “greening” government operations and purchase practices,
to revising commercial and residential building codes, to
adopting long-term Climate Action Plans (CAPs) that incor-
porate these and other measures. Yet, as the American Clean
Energy and Security Act (ACESA) of 2009 and t he Clean
Energy Jobs and American Power Act (the Boxer-Kerry Bill)
wind their way through the U.S. Congress5 and the U.S.
Environmental Protection Agency (EPA) contemplates sev-
eral regulatory options,6 the fate of these local initiatives has
1. United Nations Framework Convention on Climate Change (UNFCCC),
May 9, 1992, 31 I.L.M. 849. e main GHGs are CO2, methane, nitrous
oxide, hydrouorocarbons, peruorocarbons, and sulfur hexauoride. See I-
 P  C C, Summary for Policymakers,
in C C 2007: S R 5 n.5 (2007) (referring to gases
covered under the UNFCCC).
2. See Kyoto Protocol to the United Nations Framework Convention on Climate
Change, Dec. 10, 1997, 37 I.L.M. 22.
3. See, e.g., Adam Vaughan, James Lovelock Labels Europe’s Carbon Trading Scheme
a “Scam,” G.., Mar. 10, 2009, http://www.guardian.co.uk/en-
vironment/2009/mar/10/lovelock-meacher-slam-carbon-trading (last visited
Oct. 30, 2009).
4. Carbonify.com, Current/Historic Carbon Dioxide Levels, http://www.car-
bonify.com/carbon-dioxide-levels.htm (last visited Nov. 20, 2009).
5. H.R. 2454, 111th Cong. (2009) [hereinafter ACESA]; S. 1733, 111th Cong.
(2009) [hereinafter Boxer-Kerry]. See also John M. Broder, House Backs Bill,
219-212, to Curb Global Warming, N.Y. T, June 27, 2009, at A1; Darren
Samuelsohn, Senate Climate Bill Faces Narrow Window for Action in 2010,
N.Y. T, Nov. 16, 2009. Because Boxer-Kerry was reported out of com-
mittee in early November and remains a far way from passing the U.S. Senate,
this Article will focus on the provisions of ACESA. For a good summar y of
preemption under Boxer-Kerry, see William Buzbee, Boxer-Kerry: Measures to
Address Error and Illegality, CPRBlog, Oct. 5, 2009.
6. See EPA, Mandatory Reporting of Greenhouse Gases, Final Rule, 74 Fed.
Reg. 56259 (Oct. 30, 2009); EPA, Prevention of Signcant Deterioration and
Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55292 (proposed Oct.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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