All hands on deck: local governments and the potential for bidirectional climate change regulation.

Author:Trisolini, Katherine A.

INTRODUCTION I. THE PLACE OF LOCAL CLIMATE REGULATION IN ENVIRONMENTAL LAW: THEORY AND PRACTICE A. Tragedy of the Commons Perspective on Local Plans: Puzzling and Ill-Suited to the Task B. Market Perspective on Local Plans: Inefficient and Counterproductive. C. Climate Change Policy in Practice 1. Comprehensive caps 2. Multilevel governance II. LOCAL POTENTIAL TO REDUCE GREENHOUSE GAS EMISSIONS: DEMOGRAPHICS AND RELEVANT POWERS A. Viewing Local Efforts Collectively B. Relevant Areas of Local Power 1. Buildings and energy efficiency a. Energy demand from buildings, potential reductions, and barriers b. Local regulatory power over buildings c. Trends in local adoption of green building programs d. Potential impact of local green building programs on a national cap 2. Zoning and land use power: reducing vehicle use a. Approaches to reducing transportation emissions b. Sprawl: traditional Euclidean zoning and vehicle miles traveled c. How local governments can influence VMT d. What are local governments doing? e. Potential impact 3. Waste and garbage a. Recycling b. Methane capture 4. Proprietary functions of local governments a. Energy supply b. Lighting c. Emissions reductions and implications III. COORDINATING LEVELS OF GOVERNMENT: TOWARDS A MODEL OF BIDIRECTIONAL CLIMATE CHANGE REGULATION A. Levels of Government B. Working in Both Directions IV. AREAS FOR ADDITIONAL RESEARCH AND CONCLUSION INTRODUCTION

Solutions are not coming from Washington. Solutions are coming from our cities.... We are the ones that address the issues that matter to people the most. We are the ones that provide the front line, the last hope.... When faced with inaction on climate change, it was Mayor Nickels who inspired over 850 of us to implement the Kyoto Protocol.... And it does not matter if we are democrats, republicans, or independents.... [W]e are all mayors first.

--Miami Mayor Manuel Diaz,

President, U.S. Conference of Mayors,

July 2008 (1)

At the close of the last presidential administration in 2008, climate change policy in the United States appeared to be upside down. While the federal government had rejected the Kyoto Protocol's treaty-based emissions reductions and offered no meaningful substitute, hundreds of America's mayors and other local government (2) policy makers along with many states had enacted emissions reduction plans to combat a global problem extending far beyond their jurisdictions.

For many observers, the inauguration of President Obama in January of 2009 signaled a potential sea change in federal climate policy. During his campaign, President Obama espoused his support for use of a cap-and-trade system to cut domestic greenhouse gas emissions by eighty percent by 2050 and his intention to make the United States a leader in international efforts to address climate change. (3) In December 2009, he personally brokered the most recent international climate agreement, the Copenhagen Accord. (4) Domestically, he has continued to support cap-and-trade proposals and even wrote the revenues from such a system into his budget. (5) Nonetheless, despite the President's support, many open questions remain about the contours of a potential national policy; whether it will preempt or accommodate state and local initiatives, and what can get through Congress. As of this writing the prospect for effective federal legislation remains unclear. (6) This Article looks at the role that the smallest jurisdictions--cities, counties, and other local governments--can play in the United States' efforts to reduce its greenhouse gas emissions. Contrary to the conventional wisdom among environmental law scholars that local efforts are insignificant, and challenging claims that city and county plans could impede implementation of an effective national program, this Article argues that local efforts are collectively substantial and complementary to effective national climate change policy.

Given the magnitude of this daunting problem posed by global climate change, most legal scholars have presumed that local governments cannot create meaningful emissions reductions. While acknowledging that local efforts might indirectly influence the adoption of federal climate change legislation, most dismiss local emissions reduction plans, referring to them as "trivial" "inconsequential," or mere posturing. (7) Worse yet, some advocates of a "comprehensive" national cap-and-trade regime view local efforts as not only ineffective but also downright counterproductive.

It is not surprising that scholars are skeptical of local governments' ability to contribute meaningfully to greenhouse gas reductions. The very nature of climate change seems to render it incompatible with local control. Climate change stems from the accumulation of several gases that block the escape of heat from the earth's atmosphere, thereby increasing the average global temperature--hence the term "greenhouse" gases. (8) The qualities of these gases create vexing regulatory problems. Unlike most familiar pollutants, greenhouse gas emissions stem from hundreds of human activities (as well as natural processes), creating a multitude of possible regulatory targets and potential impacts on many economic sectors. Their environmental impacts are delayed until long after the emissions occur, exacerbating the difficulty of creating political agreement. Most critically, because greenhouse gases mix in the atmosphere and create global effects, reductions from one locale can be offset by increases from another locale on a different continent.

Cities and other small jurisdictions appear to have the least incentive and to be the most poorly situated of all U.S. governments to impact a pollution problem of such magnitude. The sheer scale of the problem and the potential for globally catastrophic impacts appear to dwarf local efforts. Indeed, recent scientific assessments report that global emissions must be cut fifty to eighty-five percent by mid-century--with dramatic cuts within the next decade--to avoid triggering irreversible changes to life-support systems. (9) Absent dramatic global reductions in greenhouse gas emissions, climate destabilization will have devastating effects on human health, oceans, species diversity, water resources, and food supplies, among other things. (10) Moreover, the United States' roughly one-quarter share of global greenhouse gas emissions (11) stems predominantly from fossil fuel combustion in energy production and transportation. (12) Local governments lack power to regulate vehicle technology, fuel composition, and power plant technology and licensing, all critical determinants of transportation and energy emission levels. Like energy production and transportation, the substantial contribution to the United States' emissions from industrial and agricultural processes (13) is similarly beyond local governments' regulatory jurisdiction. How could local governments play any meaningful role in reducing U.S. emissions given their limited geographical and legal jurisdiction? With the global scale of climate change, why should we care what local governments are doing?

Prominent theoretical perspectives on environmental law make it even easier to dismiss any local role in combating a global environmental problem. Following Garrett Hardin's famous depiction of rationally driven herdsmen destroying the commons necessary for their livelihoods, many scholars have envisioned climate change as a classic "tragedy of the commons" (14)--indeed, one of unprecedented magnitude. (15) Scholars generally presume that small-scale actors lack appropriate incentives to protect common pool resources and thus conclude that this trap has only two escape routes--privatization of the resource or imposition of resource protection by a higher sovereign. (16) In a similar vein, a prominent approach to dividing regulatory power in the environmental federalism literature asserts that the level of governance should match the geographic scale of the harm. (17) More broadly, local governments are largely overlooked as relevant actors in academic discussions of environmental law. (18)

In contrast to scholars who view local efforts as insignificant or even possibly counterproductive, this Article argues that multiple levels of government can play complementary roles under a model of bidirectional climate change policy-making and regulation. It aims to bring local governments into the discussion of environmental law as regulatory entities in their own right by highlighting areas of traditional power--such as land use, waste management, and even proprietary activities--that situate local governments in a potentially influential position to regulate greenhouse gas emissions. Although local policies cannot displace the need for federal regulation, (19) federal climate change policy will be more likely to succeed if its architects recognize this potential local contribution and facilitate the reductions local governments have begun to implement. Dismissing local efforts as trivial may lead scholars and lawmakers to overlook effective means of reducing greenhouse gas emissions that rely on well-studied, mature, and available technologies that can be locally regulated within existing institutions. It may also obscure the potential to create substantial emissions reductions by engaging the state and federal governments in traditionally local domains in which cities are now struggling to regulate. Examining both the local potential and current efforts provides a broader picture of the potential regulatory landscape, both in terms of regulatory targets and in terms of potential regulators.

Despite practical hurdles to efficacy and theoretical models suggesting insignificance, this movement of local governments grew rapidly between 2000 and 2009 with members quickly producing and implementing climate change policies, starkly contrasting with federal inaction. As of November 2009, over a...

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