Is That All There Is?: The Surprising Value of Unenforceable Local Climate Action Plans
| Author | Melissa Powers |
| Pages | 143-174 |
143
Chapter 9:
Is That All There Is?:
The Surprising Value
of Unenforceable Local
Climate Action Plans
Melissa Powers
I. Introduction
In 1993, Portland, Oregon, adopted the rst U.S. municipal climate action
plan, which required the city’s greenhouse gas emissions to drop 20% below
1990 levels by 2010.1 By 2000, it had become clear that Portland would
not meet this goal, largely because its growing population had resulted in
increased emissions2 (indeed, Portland ’s emissions reached an al l-time high
in 20003). Portland, therefore, revised its target to give itself more time to
meet a weaker goal. In 2009, Portland again retooled its approach to climate
mitigation so that Portland ’s 2009 Climate Action Plan now requires the
city’s greenhouse gas emissions to drop 80% below 1990 levels by 2050 and
includes a host of strategies to achieve this target.4 Portland has dutiful ly
implemented many of these strategies, which include the development of an
extensive cycling network, improvement and expansion of the city’s light rail
system, mandatory waste reduction eorts, promotion of building eciency,
1. Hari M. Osofsky & Janet K. Levit, e Scale of Networks?: Local Climate Change Coalitions, 8 C.
J. I. L. 409, 415 (2008).
2. Id. at 417.
3. C P M C, C A P 2009: Y T P
R 4 g. 1 (2012) [hereinafter P C P R].
4. C P M C, C A P 2009 (2009) [hereinafter
P C P].
e author thanks Jessica Owley and Keith Hirokawa for their extremely helpful editorial
suggestions and patience. anks also to Jerey Van Name for excellent research assistance.
Finally, thanks to the members of the Environmental Law Collaborative, whose insights
about sustainability and climate change positively inuenced this paper.
144 Rethinking Sustainability
and increased renewable energy production.5 Two years into its most recent
plan, Portland reported its emissions had declined by 26% from 2000 to
2011, and its 2011 emissions were 6% below 1990 levels.6 Even though the
city’s population increased by 26% during that time, its emissions declined
on both an aggregate and per capita basis.7 Portland also reported that 70%
of its climate action strategies were either “on track” or completed, while the
remaining 30% were delayed or “facing obstacles.”8 Despite these remaining
obstacles, an optimist would argue that Portland’s perseverance and resulting
emissions reductions demonstrate the potential for local sustainability eorts
to help mitigate climate change.9
Indeed, many other cities have followed Portla nd’s path by adopting their
own plans to reduce greenhouse gas emissions. Initially, in the 1990s, con-
cerns about climate change and interest in promoting sustainability began
to take hold within state and local governments.10 By the beginning of the
new millennium, climate change had emerged as a major state and local
interest.11 By 2010, many cities and other local governments had voluntarily
adopted climate action plans that outlined various strategies the governments
would employ to reduce greenhouse gas emissions from specic sectors.12 As
in Portland, other cities’ climate action plans seek to lower emissions from
the transportation sector by expa nding public transportation, promoting
walking and bicycling, and designing “ live-work” neighborhoods.13 Simi-
larly, their climate action plans promote or mandate construction of more
ecient buildings, installation of renewable energy facilities, and reduction
of waste.14 To a large extent, these strategies mirror measures sustainability
advocates had long advised cities to adopt.15 us, for some cities, climate
5. See generally id. (describing the elements of Portland’s plan); see also Melissa Powers, United States
Municipal Climate Plans: What Role Will Cities Play in Climate Change Mitigation?, in L C
C L: E R C O L 155–59 (Benjamin
Richardson ed., 2012) (discussing Portland’s implementation of its plan).
6. P C P R, supra note 3, at 4.
7. Id. at 5–6.
8. Id. at 9.
9. Powers, supra note 5, at 140–44.
10. See Zhenghong Teng et al., Moving From Agenda to Action: Evaluating Local Climate Change Action
Plans, 53 J. E. P M. 41, 43 (2010).
11. See generally id.
12. Powers, supra note 5, at 144–54; Katherine A. Trisolini, All Hands on Deck: Local Governments and
the Potential for Bidirectional Climate Change Regulation, 62 S. L. R. 669 (2010).
13. Powers, supra note 5, at 144–54.
14. Id.
15. See Edna Sussman, Reshaping Municipal and County Laws to Foster Green Building, Energy Eciency,
and Renewable Energy, 16 NYU E. L.J. 1 (2008); John Dernbach, Stabilizing and Reducin g
U.S. Energy Consumption: Legal and Policy Tools for Eciency and Conservation, 37 ELR 10003 (Jan.
2007).
Is That All There Is? 145
action plans have become a mechanism through which cities ca n become
more sustainable, more livable, and thus more attractive to their residents.16
Scholars, however, have debated the va lue of local climate action plans
in the ght against climate change. Critics primarily argue that the global
nature of climate change requires an international response, and any local
eorts will have at most a de minimis eect.17 Critics also question the abil-
ity of local governments, which typically have limited regulatory power, to
develop eect ive mitigation strategies.18 Promoters of local climate mitiga-
tion eorts counter that, since climate change results from the aggregation of
emissions from millions of sources of various sizes, eective climate mitiga-
tion must address all of these sources.19 While any individual loca lity may
have limited reach, U.S. cities collectively emit the vast majority of the coun-
try’s green house gases.20 Moreover, loca l governments ty pically have juris-
diction over land use, public serv ices, and transportation planning, all of
which can reduce consumption of fossil fuels by lowering dema nd.21 us,
when considered in the aggreg ate, many scholars believe that loca l climate
action plans that include strategies to reduce vehicle miles traveled, increase
eciency, expand renewable energy production, and eliminate waste could
provide clear climate benets.22
However, local plan skeptics raise another compelling argument that has
received less consideration: local climate action plans are essentia lly unen-
forceable through sa nctions or lawsuits.2 3 With a few exceptions, neither
16. See Ted Rutland & Alex Aylett, e Work of Policy: Actor Networks, Governmentality, and Local Action
on Climate Change in Portland, Oregon, 26 E’ P D: S S 627 (2008);
Victor V. Flatt, Act Locally, Aect Globally: How Changing Social Norms to Inuence the Private Sector
Shows a Path to Using Local Government to Control Environmental Harms, 35 B.C. E. A
R. 455 (2008); Sarah Krako, Planetarian Identity Formation and the Relocalization of Environmen-
tal Law, 64 F. L. R. 87 (2012); Michael Burger, Empowering Local Autonomy and Encouraging
Experimentation in Climate Change Governance: e Case for a Layered Regime, 39 ELR 11161, 11164
(Dec. 2009).
17. Jonathan B. Wiener, ink Globally, Act Globally: e Limits of Local Climate Policies, 155 U. P. L.
R. 1961 (2007).
18. Id.; J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: e Case of Climate Change,
155 U. P. L. R. 1499, 1538 (2007); Kirsten H. Engel & Barak Y. Orbach, Micro-Motives and State
and Local Climate Change Initiatives, 2 H. L. P’ R. 119, 120 (2008).
19. Katrina Fischer Kuh, Capturing Individual Harms, 35 H. E. L. R. 155, 165 (2011); Kevin
M. Stack & Michael P. Vandenburgh, e One Percent Problem, 111 C. L. R. 1385, 1406
(2011).
20. Powers, supra note 5, at 135.
21. Id. at 137–38.
22. See id.; Trisolini, supra note12.
23. Stepan Wood, Voluntary Environmental Codes & Sustainability, in E L S-
270–72 (Benjamin J. Richardson & Stepan Wood eds., 2006) (discussing the importance of
enforceability); Stepan Wood & Kevin ompson, Transnational Voluntary Climate Change Initiatives
for Local Governments: Key Variables, Drivers and Likely Eects, in L C C L:
E R C O L 53–55 (Benjamin Richardson ed.,
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