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

• Date: 01 December 2009

12-2009 NEWS & ANALYSIS 39 ELR 11161

Empowering

Local Autonomy

and Encouraging

Experimentation

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.

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