Introductory Comments: The Current State of Climate Change Law
| Author | Michael B. Gerrard |
| Position | Director of the Center for Climate Change Law at Columbia Law School |
| Pages | 2-2 |
2WINTER 2010
INTRODUCTORY COMMENTS: THE CURRENT STATE
OF CLIMATE CHANGE LAW
by Michael B. Gerrard*
The three words that best characterize the current state of
climate chan ge law are fra gmentation, uncertainty, and
insufficiency.
Almost everyone wh o takes cli mate change seriously
believes that comprehensive federal legislation is needed. Presi-
dent Oba ma and the majority leadership of the House and the
Senate agree, but regional politics, massive lobbying by various
interest groups, and partisan posturing, have combined to form
an almost impenetrable bramble bush. The legislative journey
may have b egun with a rational plan, b ut to accumulate the
necessary votes, important elements are cast aside and dreadful
provisions are added. As I write this in mid-Ma rch 2010, I do
not know if a bill will reach the President’s desk and, if it does,
whether it will have any potency.
Meanwhile, existing legal tools are being hurled at the prob-
lem. They were all designed for tasks other than solving global
climate change; some are federal, some are state, some are local.
Adding them all up reveals some overlap, even more gaps, and
precious little coordination. Hence the fragmentation.
The future course of all this is unknown. Empowered by the
U.S. Supreme Court’s landmark 2007 decision in Massachusetts
v. EPA and by the 2009 inauguration of a sympathetic president,
the U.S. Environmental Prot ection Agency is moving forward
with its best existing tools, disparate portions of the Clean Air
Act, to regulate what it can. Opponents are lobbing legislative
and litigation grenades in the path; some may be duds, but all are
scary. Thus industries, both clean and dirty, cannot plan because
they cannot see the road ahead. Hence the uncertainty.
Any legis lative outcome th at is plausible in the ne ar term
will achieve far less greenhouse gas (“GHG”) emissions reduc-
tion than the scientists tell us is needed to avoid serious climate
consequences. The existing legal tools fall even shorter of the
mark. Almost all of the se efforts are focu sed on mitigation of
emission levels; none seriously grapples with adaptation to the
* Michael B. Gerrard is Andrew Sabin Professor of Professional Practice and
Director of the Center for Climate Change Law at Columbia Law School.
climate change that is coming, or with governance of the geoen-
gineering s chemes that will surely be propose d as bad cl imate
events accelerate. Hence the insufficiency.
If the re is a ray of light, it is in the area of energy. This
matters, since 80% of U.S. GHG emissio ns come from fossil
fuel combustion.1 Congress has not enacted a major new envi-
ronmental statute since 1990, but it manages to pass new energy
bills every two or three years. Thus we have major new incen-
tives for energy efficiency and renewable energy, and even more
may be coming soon, even if comprehensive climate legislation
remains st alled. Many brilliant minds are also at work in pri-
vate ent erprises devising energy solutions; those who su cceed
stand to become t he next bill ionaires. States and cities hav e
been espe cially vigorous l aboratories of in novation, and som e
of the techniques they have devised, such as renewable portfolio
standards and green building codes, can make a real difference,
especially if expanded nationally.
The rest of the world is waiting for the U.S. tumult to sub-
side. Though China has overtaken the U.S. as the largest GHG
emitter, the U.S. is still responsible for the largest portion of the
GHGs that have accumulated in the atmosphere. It is difficult for
leaders abroad to adopt strong climate controls when the biggest
historic emitter still hasn’t. It is too much to expe ct Congress
to remove all the fragmentation, uncertainty and insufficiency in
one swoop, but the need for real progress is urgent.
Endnotes:
1 U.S. Environmental Protection Agency, 2010 Draft U.S. Greenhouse Gas
Inventory Report, ES-5 - ES-6, (Mar. 2010), available at http://www.epa.gov/
climatechange/emissions/downloads10/US-GHG-Inventory-2010-Chapter-
Executive-Summary.pdf.
