At What Level of Government Are We Going to Regulate Climate Change? (Hint — It Is a Global Problem.)

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

Last week, Judge Yvonne Gonzalez Rogers ruled that the Berkeley ordinance essentially banning use of natural gas in new construction was not preempted by the Energy Policy and Conservation Act.  I’m not here to opine on the legal merits of the decision.  I will note note that the Judge’s reliance on textual analysis and the asserted federalist bent of SCOTUS’s conservative wing might give this opinion more life than one would otherwise expect – though I’ll also note that the conservative wing’s federalist proclivities often seem to turn on whether they agree with the underlying policy at issue. 

My concern here is the extent to which we in the United States are making policy intended to address climate change – which is not even a national problem, but a global problem – at a broad range of levels of government.  Berkeley, with a population of barely 100,000 people, is trying move public policy towards an end of new natural uses of natural gas.  South Portland Maine, with a population of around 25,000, is trying prevent shipments of tar sands oil from South Portland.  (Full disclosure – Foley Hoag represents South Portland in litigation over its ordinance)  Washington State, with a population of somewhat more than 7 million, is trying to avoid facilitation of coal exports.

I’m sympathetic to all of these policy innovations, or at least the motives behind them.  I still think that natural gas is an important bridge fuel, but I also recognize that we have to get to the end of that bridge as quickly as possible.  Limiting markets for tar sands oil and coal exports?  Check and check.

Moreover, all of these moves were based on the exercise of traditional police powers by local governments.  The courts reviewing the Berkeley ordinance and the South Portland ordinance both rightly cited to local police powers in ruling that those ordinances are not preempted.

Finally, I also have sympathy for the argument that, in Judaism, as expressed as:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

In other worlds, local action may not solve the problem of climate change, but it represents – one hopes – the collective will of local governments to do what they can, rather than just throwing up their hands in despair.

And yet, we still have to recognize that it’s going to be difficult, if not impossible, to cobble together an effective policy to mitigate climate change by the accumulation of a bunch of local policies.  My real hope here is that the combination of the right local policies somehow, and sometime soon, helps break the logjam preventing the development of comprehensive federal policy.

Can you say “carbon pricing”?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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