The Legal and Administrative Risks of Climate Regulation

Date01 June 2021
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.
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.
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,
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,
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®,, 1-800-433-5120.

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