Climate Change

  • January 28, 2013

    by Jeremy Leaming

    Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

    The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

    Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

    Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

    University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

    During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

    The president also called for collective action on climate change.

  • December 10, 2012
    Guest Post

    by Rena Steinzor, Professor of Law, University of Maryland, Francis King Carey School of Law; Steinzor is also president of the Center for Progressive Reform (CPR).

    After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind.

    Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal “crisis” is over.

    So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies -- including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration -- by issuing a series of Executive Orders.

  • November 18, 2011

    by Jonathan Arogeti

    “Cap and trade is not going to happen next year, or the year after that, … or the year after that,” recalled the former staff director and chief counsel for the House Select Committee on Energy Independence and Global Warming, paraphrasing President Obama’s forecast for climate change legislation following the 2010 midterm election.

    Gerard J. Waldron, now a partner at Covington & Burling, opened a recent ACS panel discussion, “Global Warming and Political Cooling,” with a reflection on the Obama administration’s efforts to combat this problem. In June 2009, the House passed the American Clean Energy and Security Act, which according to The New York Times was the first time either the House or the Senate had approved legislation “meant to curb the heat-trapping gases scientists have linked to climate change.” That summer’s apex of optimism only gave way to the “great failure” that was the 2009 United Nations Climate Change Conference. And by the following summer, the Senate still had not taken up the bill.

    Against this backdrop, environmental groups are looking to new local, state and regional legislative efforts along with enforcement of national legislation already on the books to combat climate change.

    Environment America, one such group, released a report on restoring “momentum in the fight against global warming.” According to its estimates, the United States could reduce emissions standards by as much as 20 percent by 2020 and 34 percent by 2030 by adopting clean energy policies that include increased CAFE standards.

    “Wherever we can get emissions reductions, wherever we can get them quickly, wherever the public support exists, we’re working to do that,” said Anna Aurilio, director of Environment America’s Washington, D.C. office. “We’re going to have to actually enact comprehensive climate legislation, but there is a ton of stuff we can do to reduce tons.”

    She points to these “incremental steps” that will bend the emissions curve downwards and ultimately allow this country to wean itself off of oil. “We’d like to live in communities where people’s houses use no net energy except for the energy that they produce themselves on site, where they can get to work or school or play through alternatives other than driving, and if they have to drive, that their car can plug into the solar panel on the roof.”

  • June 21, 2011

    The U.S. Supreme Court blocked a lawsuit yesterday aimed at reducing greenhouse gas emissions, holding that because the power to regulate emissions had been delegated to the Environmental Protection Agency under the Clean Air Act, federal common law did not apply.

    Although the ruling limited the threat of tort liability, there are some positive implications for U.S. climate policy, writes Yale Law Professor Douglas Kysar in Nature. But along with the good comes not just the “bad” but the “downright ugly,” Kysar writes.

    The “good” is that the opinion “solidified the court's landmark 2007 conclusion that the EPA has the power to regulate carbon dioxide as a pollutant.” This means that if Congress attempts to limit the EPA’s power in this area, these lawsuits could be reinstated, he explains. The court also left open state common law as an avenue for pursuing such suits.

    The “bad” is that lawsuits under federal common law are foreclosed even if the EPA never exercises its power to regulate, so long as that power is not explicitly repealed by Congress.

    And in the category of “downright ugly,” is the opinion’s overt skepticism about the science of climate change, Kysar writes, which likely influenced their decision in this case. The opinion suggests readers explore “views opposing the EPA” by reading a profile of Freeman Dyson, “the theoretical physicist whose controversial views on climate change have been widely promoted by the climate-skeptic community.”

    He continues:

  • May 9, 2011
    Guest Post

    By Alexandra Klass, a law professor and Associate Dean for Academic Affairs at the University of Minnesota Law School, and a Center for Progressive Reform Member Scholar. This article is cross-posted at CPRBlog.


    On Wednesday, Our Children's Trust, an Oregon-based nonprofit, made headlines when it began filing lawsuits on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change. The claims seek judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust. Although these claims certainly are novel and may have limited or no success in many states because of lack of precedent, they rely on what has proved to be a flexible and powerful common law doctrine in some states that has pushed the legal envelope in the name of environmental protection in the past. As a result, these cases bear watching both as to their legal effect as well as the possibility that they will galvanize a broader base of grassroots support for action on climate change.

    The public trust doctrine is a concept dating back to Roman Law which holds that there are certain natural resources that are forever subject to government ownership and must be held in trust for the use and benefit of the public. In the United States, plaintiffs have used the public trust doctrine successfully to prevent states and other governmental entities from conveying public trust resources such as submerged lands or municipal harbors into private ownership, to create public beach access, and to otherwise ensure public access to water-based resources. Until the 1970s, however, the doctrine had little to do with environmental protection and instead was used almost exclusively to prevent the privatization of water-based resources or to preserve public access to fishing, boating, or commerce.