Foreword: On the Imperative of Adapting to Climate Change
PDF DownloadFor climate change and the administrative state, imagine two situations:
- Congress has enacted a Climate Change Act (CCA), which gives specific directions, and specific authorities, to an assortment of agencies: the Environmental Protection Agency, the Department of Transportation, the Department of Interior, the Department of Homeland Security, the Department of Energy, and others. In the years following enactment of the CCA, the relevant agencies must act in accordance with Congress’s directions. To be sure, they must make some important discretionary judgments, calling for both scientific and economic assessments. But those judgments are sharply cabined by congressional instructions about how to handle the problem of climate change.
- Over a period of decades, Congress has given an assortment of directions and authorities to an assortment of agencies: the Environmental Protection Agency, the Department of Transportation, the Department of Interior, the Department of Homeland Security, the Department of Energy, and others. In general, those directions and authorities were not given with specific reference to climate change. Some of the relevant authorities involve air pollution. Others involve fuel economy. Still others involve energy efficiency. Others involve preparedness for, and response to, national disasters. Agencies act in accordance with the directions and authorities that they have been given. If the President of the United States is focused on climate change, agencies will respond accordingly, authorized and limited as they are by law. If the President of the United States is not focused on climate change, agencies will also respond accordingly, again authorized and limited as they are by law.
The current situation is, of course, (2), not (1). For the administrative state in general, and for particular agencies, the existence of various directions and authorities, not specifically focused on climate change, creates a host of opportunities and challenges. Agencies might believe that some statutory term (e.g., “pollutant”) is capacious enough to allow, or to require, regulation of greenhouse gases.[1] Agencies might also believe that some broad statutory authority, involving (for example) energy efficiency, permits or requires them to reduce greenhouse gas emissions. We can imagine three sets of possibilities: (1) agencies must act to address climate change, given the statutory language;[2] (2) agencies may not act to address climate change, given the statutory language;[3] and (3) agencies may act to address climate change or not, as they see fit, given the ambiguity of the statutory language.[4]
These are questions about statutory authority. But even if an agency has that authority, it must not act arbitrarily.[5] Suppose that an agency is required or permitted to regulate greenhouse gas emissions by (for example) regulating the energy efficiency of appliances.[6] An agency might choose a level of mandatory efficiency that it has not adequately explained. It might not have dealt adequately, or at all, with an apparently reasonable objection to a high level of stringency. For example, it might not have given adequate consideration to the possibility that energy-efficient refrigerators will not refrigerate as well, or that such refrigerators might be exceedingly expensive upfront, or that they might not last as long as less energy-efficient refrigerators. Or an agency might not have dealt adequately with an apparently reasonable objection to a low level of stringency. For example, it might not have taken sufficient account of the large consumer savings that could result from energy-efficient appliances, or it might have used a social cost of carbon that is unduly low and thus undervalued the benefits of energy efficiency.
The articles in this Symposium tackle various questions raised by agency efforts, within the scope of their existing authority, to deal with climate change. The focus of these articles is largely on mitigation—on efforts to reduce greenhouse gas emissions. Some of the articles present arguments about how particular agencies could, and should, use their existing authorities more effectively to regulate greenhouse gas emissions, given the absence of specific legislation and given the fact that new elections change the direction of the executive branch. Other articles explore the scope of agencies’ authorities to assess the harms from greenhouse gas emissions (through, for example, the social cost of carbon) and to act in accordance with that assessment. The focus on mitigation is natural. Many of the key questions raised by climate change involve agency efforts to regulate such emissions.[7] But if the goal is to reduce the harms from climate change, mitigation must be complemented by adaptation and resilience as well.
[1]. See Massachusetts v. EPA, 549 U.S. 497, 528 (2007) (“[EPA] maintains that carbon dioxide is not an ‘air pollutant’ within the meaning of the provision.”).
[2]. See id. at 532-34 (holding that EPA cannot avoid its statutory obligation to regulate greenhouse gas emissions if it makes an endangerment finding).
[3]. See Util. Air Regul. Grp. v. EPA., 573 U.S. 302, 321-24 (2014).
[4]. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
[6]. See Chris Mooney, Obama Just Released the Biggest Energy Efficiency Rule in U.S. History, Wash. Post (Dec. 17, 2015), https://www.washingtonpost.com/news/energy-environment/wp/2015/12/17/meet-the-biggest-energy-efficiency-rule-the-u-s-has-ever-released/ [https://perma.cc/BRQ7-4NJR]; 10 C.F.R. §§ 429-431 (2021).
[7]. See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007); Util. Air Regul. Grp., 573 U.S. 302.
This Symposium issue is made possible in part by our Platinum Symposium Sponsor Wilson Sonsini Goodrich & Rosati.
