New legal initiatives to address climate change are gaining traction, but the history of environmental law in the United States teaches that every aspect of any new legal regime will be aggressively tested in the courts. The nascent efforts to control climate change are no exception and already face constitutional challenges in federal courts on multiple fronts. For example, industry argues both that the federal government lacks the authority to regulate greenhouse gases and that state regulations should be pre-empted by federal authority. The states’ attempts to enact their own laws or to join together on a regional basis are being met with an array of hostile claims, including that such laws violate the Constitution’s dormant commerce clause, compact clause, and treaty power clause. The Supreme Court has already heard argument in a case challenging whether citizens and states even have standing to bring climate-change suits in the first place, and an adverse ruling could have sweeping effects. Anticipating — and eventually fending off — these inevitable challenges is critical to the viability of every serious legal response to climate change.
ELI seeks to anticipate, publicize, and defend against legal attacks on new climate change laws and initiatives. ELI is working to publish and disseminate gap-filling legal analysis, reach out to policymakers and legal professionals to explain crucial legal issues, educate journalists on legal doctrines and procedures critical to the climate change debate, and support the broad coalition of attorneys working on climate change in precedent-setting cases. The pressing need for this work is illustrated by the Supreme Court’s decision in the Court’s first climate change case, Massachusetts v. EPA, which tested the states’ right to be heard on the issue, and by reactions to the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort by Northeastern states that industry has openly vowed to attack in court.
The Institute’s work to protect climate change frameworks is part of ELI’s Program on the Constitution, Courts, and Legislation, launched in 2003 to combat judicial attacks as they arise. Focusing on broad constitutional and federalism issues, the Program informs decision-makers, the media, and the public about critical developments in the courts, and produces the legal and factual research, arguments, and scholarship needed to tell the story from the environmental perspective. The Program strives to shore up four foundational “pillars” of environmental law: (1) national laws to address nationwide problems, (2) cooperative sharing of federal power with the states, (3) latitude for state and local governments to experiment and innovate, and (4) robust citizen participation in decision-making and enforcement.