Federal regulations over the past half-century have wrought impressive improvements in U.S. air and water quality. In particular, the 1970 Clean Air Act and its 1977 and 1990 amendments have significantly reduced concentrations of particulates, nitrogen and sulfur oxides, and other harmful pollutants in “ambient air” in almost every part of the United States.
Much of this improvement has come about from “technology forcing,” as regulations limiting permissible emissions — for example, in pounds of pollution per kilowatt-hour generated — led electric utility companies to test, procure and install pollution-control devices that drastically cut soot and acid rain emissions from coal-fired power plant smokestacks.
These and similar successes have led many climate advocates to urge similar regulatory pathways to curb carbon emissions. Another consideration is that unlike carbon taxes, whose pass-through to the consumer level would be highly visible, regulations appear to target only big-business corporations, making them broadly popular among the public and, thus, to politicians.
Nevertheless, regulatory approaches may offer only modest prospects for controlling and reducing emissions of carbon dioxide and other greenhouse gases, for several reasons. For one thing, the absence of antipollution devices for capturing or lowering CO2 emissions limits the scope of technology-forcing regulation. For another, promulgation of regulations is necessarily piecemeal and reactive. Moreover, the regulation-setting and administering process itself is cumbersome, delay-prone and subject to legal challenge by carbon interests.
The last issue is the subject of a penetrating paper, Legal and Administrative Pitfalls That May Confront Climate Regulation, by Case Western University law professor Jonathan H. Adler, which the Niskanen Institute published in March 2021. The institute posted a summary version of the paper on its Website, which we reproduce in full, below.
Legal and Administrative Pitfalls that May Confront Climate Regulation
By Jonathan H. Adler
- Greenhouse gas regulations may be vulnerable to legal attacks, state resistance, and administrative delays that will compromise their ability to produce rapid reductions in emissions.
- Climate regulations will be particularly vulnerable insofar as they are not clearly authorized by legislation.
- Adopting new regulations can be a long, drawn-out process and agencies routinely miss legal deadlines even when regulatory policies are clearly authorized by statutes.
- Because the administrative process is cumbersome, prone to delay, and subject to judicial review, nonregulatory measures may be a more rapid and secure way to reduce GHG emissions.
- A carbon tax would be less vulnerable to administrative delays and legal challenges than comparable emission-control regulations.
The ink on the Patient Protection and Affordable Care Act was scarcely dry before the legal assault on health care reform began. The first state lawsuit, which would eventually reach the Supreme Court, was literally filed the very same day President Barack Obama signed the PPACA into law, and additional lawsuits soon followed.
Meaningful climate policies are certain to come under equally aggressive legal attack. Indeed, some opponents of the Obama administration’s climate initiatives sought to challenge the Environmental Protection Agency’s Clean Power Plan before it had even been promulgated.
There is a mismatch between the stated urgency of the problem and the focus on federal regulation as the dominant climate policy tool. Environmental advocates and the Biden administration are committed to urgent action on climate change, as dramatic and rapid reductions in greenhouse gases are necessary to meet the administration’s long-term targets and to ultimately stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Yet some potential paths forward entail significant practical obstacles and legal risks, particularly if the aim is to achieve emission reductions quickly.
Prioritizing regulatory measures over fiscal instruments may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Even in the best of times, the control of GHG emissions through federal regulation would be a long and cumbersome process, requiring dozens of complex rulemakings. Yet these are not the best of times. Federal agencies, the EPA in particular, are depleted of personnel and expertise. At the same time, a phalanx of economic and ideological interests stands ready to challenge every climate policy initiative. A potentially hostile judiciary will further complicate efforts to make federal regulation a central component of carbon control.
Enactment of climate legislation expressly authorizing federal regulation of GHG emissions and other regulatory efforts to reduce the carbon intensity of the American economy can reduce the legal risks and accelerate the rate at which such policies can be adopted and implemented, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may remain more time-consuming, conflict-ridden, and legally vulnerable than fiscal measures. A carbon tax, in particular, would be more legally secure and administratively easier to implement than regulatory controls on energy use and GHG emissions. In all likelihood, a nationwide carbon tax could be implemented in less time, and with less legal and administrative wrangling, than a single, sector-specific GHG emission standard.
Any meaningful climate policy will face concerted opposition. If climate policy is to be effective, the fact of such opposition, and its potential to delay and derail implementation, must be taken into account. It is often said that the perfect policy should not be the enemy of the good. It is equally true that a good policy that cannot be implemented as planned is not so good after all. If the aim is to adopt climate policy measures that are capable of reducing GHG emissions quickly and sustainably, this analysis suggests a carbon tax and federal spending initiatives are more promising than federal regulatory measures.
This paper surveys the legal vulnerabilities and administrative obstacles to the rapid adoption of regulatory measures capable of achieving meaningful GHG reductions. This analysis does not purport to identify which climate policies would be the most effective in the abstract, or in the absence of administrative and legal constraints. Nor does this paper make any claims about what sorts of measures can pass Congress now or in the future. Rather, this analysis seeks to inform the choice of climate strategies by highlighting the risks faced by climate measures once they are enacted by Congress or promulgated by federal regulatory agencies.