The Legal and Administrative Risks of Climate Regulation

• Date: 01 June 2021

6-2021 ENVIRONMENTAL LAW REPORTER 51 ELR 10485

ARTICLES

THE LEGAL AND ADMINISTRATIVE

RISKS OF CLIMATE REGULATION

by Jonathan H. Adler

Jonathan H. Adler is Johan Verheij Memorial Professor of Law and Director of the

Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law.

SUMMARYSUMMARY

Prioritizing federal environmental regulation as the primary means of achieving dramatic, rapid reductions

in greenhouse gas (GHG) emissions may be a strategic mistake. Regulatory mandates, particularly if based

upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay; climate legisla-

tion can reduce legal risks and accelerate policy implementation, but only on the margin. Adopting regula-

tory controls will be immensely resource-intensive for the U.S. Environmental Protection Agency and other

agencies. Even with authorizing legislation, regulatory strategies may remain more time-consuming, conf‌lict-

ridden, and legally vulnerable than f‌iscal measures. A c arbon tax, in particular, would be more legally secure

and administratively easier to implement than regulatory controls on energy use and GHG emissions.

The ink on the Patient Protection and Aordable

Care Act (PPACA) was scarcely dr y before t he le gal

assault on health care reform began. e rst state

lawsuit, which would eventually reach the U.S. Supreme

Court, was literally led the very same day President

Barack Obama signed the PPACA into law.¹ Additional

lawsuits soon followed.²

Meaningful climate policies are certain to come under

equally aggressive legal attack. Indeed, some opponents

of the Obama Administration’s climate initiatives sought

to challenge the U.S. Environmental Protection Agency’s

(EPA’s) Clean Power Plan (CPP) before it had even been

promulgated.³ Climate regulations, whether based on

1. See Complaint, Florida ex rel. Bondi v. U.S. Dep’t of Health & Human

Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (No. 3:10-cv-00091-RV-

EMT), 2010 WL 1038209; see also Complaint for Declaratory and Injunc-

tive Relief, Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D.

Va. 2010) (No. 3:10-cv-00188-HEH), 2010 WL 11240598.

2. See generally Abbe R. Gluck & Mark Regan, e Aordable Care Act’s Liti-

gation Decade, 108 G. L.J. 1471 (2020) (detailing the PPACA’s “decade

in court”).

3. See In re Murray Energy Corp., 788 F.3d 330, 45 ELR 20110 (D.C. Cir.

2015).

existing statutory authority or new legislation, will be

assailed in court and challenged throughout the adminis-

trative process. Such measures will be vulnerable to defeat

an d del ay.

ere is a mismatch between the stated urgency of the

problem and the focus on federal regulation as the domi-

nant climate policy tool. Environmental advocates and

the Joseph Biden Administration are committed to urgent

action on climate change. President Biden declared it a

“moral imperative” that the nation act swiftly, and has

called for bringing U.S. greenhouse gas (GHG) emissions

below 50 percent of 2005 levels by 2030. Meeting this

target will require dramatic and rapid emission reductions,

as does the ultimate goal of stabilizing atmospheric GHG

concentrations at a sustainable level. Yet, some potential

paths forward entail signicant practical obstacles and

legal risks, particularly if the aim is to achieve emission

reductions quickly.

Prioritizing regulatory measures over scal instruments

may be a strategic mistake. Regulatory mandates, particu-

larly if based upon existing statutory authority, will be vul-

nerable to legal attack, obstruction, and delay. Even in the

4. See Lisa Friedman, Somini Sengupta & Coral Davenport, Biden, Calling for

Action, Commits U.S. to Halving Its Climate Emissions, N.Y. T, Apr. 22,

2021.

5. See Coral Davenport, Biden Pledges Ambitious Climate Action. Here’s What

He Could Actually Do, N.Y. T, Oct. 25, 2020; Katie Glueck & Lisa

Friedman, Biden Announces $2 Trillion Climate Plan, N.Y. T, July 14,

2020.

Author’s Note: This Article is based upon a white paper

prepared for the Niskanen Center. The author would like to

thank those who offered comments on drafts of this Article,

including David Bookbinder, James Coleman, Joseph Ma-

jkut, Richard Pierce, Shuting Pomerleau, Nader Sobhani,

Steven Teles, and Christopher Walker. Any errors or omis-

sions remain the responsibility of the author.

Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.