Climate Law in the United States: Facing Structural and Procedural Limitations
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Just 5 years ago, the official position of the White House on the issue of climate change was that there was no such position. President George W. Bush and his administration declined to address whether climate change was even occurring, much less how to mitigate the causes of a phenomenon that had potentially contributed to billion-dollar disasters, thousands of fatalities during Hurricanes Rita and Katrina, and a significant number of displaced U.S. citizens.
By the time that President Bush departed the White House in January 2009, his administration had at least acknowledged the existence of climate change. Also, during his second and final term as President, the United States Supreme Court in 2007 issued a decision, Massachusetts v. EPA, which mandated the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gas (GHG) emissions under the federal Clean Air Act.
But still, the U.S. Federal Government did not take an active stance on mitigating GHG emissions until President Bush’s successor, Barack H. Obama, entered office. Armed with the Massachusetts v. EPA decision, the Obama Administration has since issued a comprehensive array of regulations through the EPA aimed at mitigating GHG emissions from stationary sources such as electric power plants and increasing fuel efficiency standards for the automotive sector. At the international level, President Obama has also affirmed the U.S. commitment to reduce greenhouse gas emissions by 17% below 2005 levels until 2020, as pledged internationally under the 2009 Copenhagen Accord.
This drastic shift in U.S. climate policy over a relatively short period provides a glimpse into the existing structural and procedural workings of the decision-making process behind climate and energy policy in the United States. In theory, this system has the potential to drive substantive change, but, in practice, climate change is occurring much faster than U.S. policy can keep up.