Climate Policy and the United States System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage

Abstract

Climate change has pushed governmental authorities within the United States (US) into new routes of national and transnational policy-making. The normal route for national policy-making runs from Congress in setting policy, to the President in agency implementation, to judicial oversight and enforcement. When that route is blocked, however, federalism and the separation of powers provide some byways and detours that may still be used to make progress. State governments and the executive branch have moved into the breach left by congressional deadlock. In the absence of federal climate legislation or a formal treaty, however, constitutional challenges will predictably meet efforts to limit carbon leakage or to establish linkages between regulatory systems.These constitutional issues often involve corners of constitutional law such as foreign affairs, where doctrines are particularly murky. Solid arguments can be made in favour of state efforts to avoid leakage and create linkage, despite claims of discrimination against interstate commerce, extraterritoriality, and foreign affairs pre-emption. The Environmental Protection Agency has some statutory authority to deal with leakage, and the President seems to have authority to pursue linkage through executive agreement. Thus, both states and the executive branch should have room to deal with transboundary implications of climate policies. Although the deadlock in Congress regarding climate change may be unusually severe, these modes of response may also be important for other kinds of transnational activity by US state governments and the national executive.

Transnationalization of climate adaptation by regional governments and the RegionsAdapt initiative

“…Regional governments across the world address climate change through policies, legislation and direct action (Austin et al , 2018; Bierbaum et al , 2013; Farber, 2014). Regional adaptation action aims to reduce weather- and climate-related vulnerability and exposure, as well as increase resilience, in urban and rural areas.…”

Energy Transition: Embodied Energy in Clean Technologies and the Need for International Regulatory Proactivity

“…These sentiments also form the directive principles and objectives of the UK's Renewable Energy Roadmap, as projected by the UK Department of Energy and Climate Change (DECC) [92]. Similar to the National Renewable Energy Action Plan (NREAP), the Roadmap identifies investment and deployment of eight clean technologies -onshore wind, offshore wind, renewable transport, marine energy, biomass electricity, biomass heat, ground source and air source heat pumps -policy/action pathways for achieving over 90% of UK's renewable energy goal for 2020 in a cost-effective way [93], [5]- [6]. The Energy Act [93] makes statutory provisions to incentivise emissions reduction in the UK energy mix.…”

“…Efforts by different countries towards climate change mitigation and transition to clean energy is commendable too [4]. However, as climate change is an unprecedented environmental problem, so does it raise novel legal challenges [5]. Irrespective of the laudable potential of renewable energy systems, research [6] shows that the major environmental problem, which they pose, is the embodied greenhouse emission traceable to the construction phase or raw materials used for manufacturing clean energy system components.…”