California Climate Law---Model or Object Lesson?

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes. At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening outside the purview of “federal statutes,” and that much of it involves “distinct areas of law” other than traditional environmental regulation. My focus will be on the issue of climate change, where California has been particularly active. Not all of California\u27s efforts have been met with approval, even from observers who are highly sympathetic to the goals. Some influential environmental scholars have debated whether California might have done better to simply set a price on carbon and avoid further regulatory apparatus, either by traditional regulators or elsewhere. I will use this debate to discuss some of the costs and benefits of mainstreaming environmental law into areas outside of the traditional environmental statutes. Part I will address California\u27s broad portfolio of climate measures. These measures certainly fit the organizer\u27s description: none of them are federal, but many are implemented by parts of the state government other than environmental agencies, and some reach forms of conduct well outside traditional environmental regulation. Part II will ask whether the breadth of this regulatory portfolio is really desirable: would we be better off to stick to a simple direct attack on carbon emissions? Using so many different tools may simply be an unnecessary complication, if not counterproductive. But a broad portfolio might also be more effective in some ways

Book Review: Equality Under the Constitution: Reclaiming the Fourteenth Amendment. by Judith A. Baer

Book review: Equality Under the Constitution: Reclaiming the Fourteenth Amendment. By Judith A. Baer. * Ithaca: Cornell University Press. 1983. Pp. 308, reviewed by Daniel A. Farber

Unpacking EME Homer: Cost, Proportionality, and Emissions Reductions

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in some of the simplified numerical examples discussed by the justices. Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s ongoing efforts to deal with interstate pollution, but it also has broader implications for the role of cost under federal pollution laws. In addition, the decision may have significant implications regarding EPA’s flexibility in mandating state plans to reduce carbon emissions under sections 111(d) and 115 of the Clean Air Act