By Hari M. Osofsky[*]
Congress is finally taking climate change seriously, or at the very least is engaged in a flurry of activity regarding greenhouse gas emissions. The Lieberman-Warner Climate Security Act made it out of the Senate Environment and Public Works Committee, and vigorous debates are taking place over the appropriate regulatory approach to climate change and energy. This Essay considers the context of that statutory conversation. Namely, how does the possibility of U.S. legislative action fit within a broader picture of transnational climate change governance?
Professor Victor Flattâ€™s lead piece on climate change legislation in this colloquy provides a thoughtful analysis of the many pending federal climate change legislative proposals, including his assessment of what is â€œbest.â€� He provides a detailed description of the pending proposals, as well as a normative discussion of legislative goals and means of attaining them. In the course of his analysis, he references both international negotiations and smaller scale regulation. He indicates that U.S. legislation should be developed in a way that would be compatible withâ€”but not wait forâ€”possible future international agreements and also not block smaller-scale efforts.
This Essay builds upon Professor Flatt's thoughtful analysis of the pending legislation by putting it in the broader context of developments regarding climate change. In contrast to Professor Flattâ€™s emphasis on specific legislative proposals, this Essay provides a contextualized, normative analysis. In particular, I focus on three main types of pressures on the legislation. First, the legislation faces vertical pressures from â€œaboveâ€� (international negotiations for the post-2012 regime) and â€œbelowâ€� (state and local efforts). Second, the legislation is influenced horizontally by activity in the other two branches of the U.S. government, namely climate change litigation and executive policy, as well as advocacy efforts by a range of nongovernmental actors. Moreover, many interactions that ultimately influence legislation are simultaneously horizontal and vertical, such as when states and cities use federal courts to push executive branch agencies to regulate. Finally, and perhaps most importantly given the looming Presidential election, the shifting public awareness of climate change creates an impetus for Congress to take meaningful action or at least to appear to do so.
Together, these interactions imbue this legislation with significance beyond the specifics of its direct impacts. Namely, the potential legislation forms part of a broader, complex regulatory map. The viability and impact of legislative proposals depend on how a range of other people and entities behave, and in turn, the proposals influence their behavior. In so doing, the legislation can serve in not only a norm-implementing role, but also norm-generating one. Through exploring the context of climate change legislation, this Essay thus argues for an integrated approach to transnational climate regulation.