Legal and Administrative Pitfalls that May Confront Climate Regulation

 Key Takeaways 

• Greenhouse gas regulations may be vulnerable to legal attacks, state resistance, and administrative delays that will compromise their ability to produce rapid reductions in emissions. 
• Climate regulations will be particularly vulnerable insofar as they are not clearly authorized by legislation. 
• Adopting new regulations can be a long, drawn-out process and agencies routinely miss legal deadlines even when regulatory policies are clearly authorized by statutes. 
• Because the administrative process is cumbersome, prone to delay, and subject to judicial review, nonregulatory measures may be a more rapid and secure way to reduce GHG emissions. 
• A carbon tax would be less vulnerable to administrative delays and legal challenges than comparable emission-control regulations. 

The ink on the Patient Protection and Affordable Care Act was scarcely dry before the legal assault on health care reform began. The first state lawsuit, which would eventually reach the Supreme Court, was literally filed the very same day President Barack Obama signed the PPACA into law, and additional lawsuits soon followed.

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 Environmental Protection Agency’s Clean Power Plan before it had even been promulgated.

There is a mismatch between the stated urgency of the problem and the focus on federal regulation as the dominant climate policy tool. Environmental advocates and the Biden administration are committed to urgent action on climate change, as dramatic and rapid reductions in greenhouse gases are necessary to meet the administration’s long-term targets and to ultimately stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Yet some potential paths forward entail significant practical obstacles and legal risks, particularly if the aim is to achieve emission reductions quickly. 

Prioritizing regulatory measures over fiscal instruments may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Even in the best of times, the control of GHG emissions through federal regulation would be a long and cumbersome process, requiring dozens of complex rulemakings. Yet these are not the best of times. Federal agencies, the EPA in particular, are depleted of personnel and expertise. At the same time, a phalanx of economic and ideological interests stands ready to challenge every climate policy initiative. A potentially hostile judiciary will further complicate efforts to make federal regulation a central component of carbon control.

Enactment of climate legislation expressly authorizing federal regulation of GHG emissions and other regulatory efforts to reduce the carbon intensity of the American economy can reduce the legal risks and accelerate the rate at which such policies can be adopted and implemented, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may remain more time-consuming, conflict-ridden, and legally vulnerable than fiscal measures. A carbon tax, in particular, would be more legally secure and administratively easier to implement than regulatory controls on energy use and GHG emissions. In all likelihood, a nationwide carbon tax could be implemented in less time, and with less legal and administrative wrangling, than a single, sector-specific GHG emission standard.

Any meaningful climate policy will face concerted opposition. If climate policy is to be effective, the fact of such opposition, and its potential to delay and derail implementation, must be taken into account. It is often said that the perfect policy should not be the enemy of the good. It is equally true that a good policy that cannot be implemented as planned is not so good after all. If the aim is to adopt climate policy measures that are capable of reducing GHG emissions quickly and sustainably, this analysis suggests a carbon tax and federal spending initiatives are more promising than federal regulatory measures. 

This paper surveys the legal vulnerabilities and administrative obstacles to the rapid adoption of regulatory measures capable of achieving meaningful GHG reductions. This analysis does not purport to identify which climate policies would be the most effective in the abstract, or in the absence of administrative and legal constraints. Nor does this paper make any claims about what sorts of measures can pass Congress now or in the future.5 Rather, this analysis seeks to inform the choice of climate strategies by highlighting the risks faced by climate measures once they are enacted by Congress or promulgated by federal regulatory agencies.