Idea #4

How Congress Might Address Climate Change:  Two Lessons from Past Practice

by Jean Galbraith

To reduce greenhouse gas emissions, we must harness democracy.  The United States needs more elected officials who are committed to mitigating climate change.

But once that happens – then what?  How might Congress legislate with respect to climate mitigation?  All ambitious attempts at climate legislation have failed to date, and indeed there has been no major legislation from Congress relating to air pollution since the Clean Air Act Amendments of 1990.

Here are two lessons for Congress to keep in mind, once political conditions make climate legislation more feasible.   Both are drawn from thinking about legal design and its past interactions with climate.

Lesson 1:  Pursue Many Paths to Climate Legislation Rather Than Aiming Exclusively for a Single Big Win

Internationally, the world poured decades of effort into achieving a major climate treaty under the auspices of the UNFCCC.  Yet over this same time period, the thinking of activists shifted from single-mindedly focusing on a major treaty to trying to achieve climate mitigation across and within every possible organizational forum.  The sought-after major treaty was finally achieved in Paris, but the ultimate success of climate mitigation will depend not only on the Paris Agreement but also on all kinds of other international agreements – bilateral arrangements, coalitions of states and cities, the recent amendments to the Montreal Protocol, and so much more.

There is a lesson here for Congress.  There is an instinct to center efforts around grand legislation, such as a carbon tax, cap-and-trade program, or a Green New Deal.  This isn’t an impossible dream.  But history shows that it will be a hard one to achieve, especially if the filibuster remains in the Senate.  Activists should pursue the dream – but also pursue action on other fronts.  There is now creative thinking about how climate might be addressed through Congress’s reconciliation process, which bypasses the filibuster.

In addition to this, activists should be trying to get the strongest possible climate-related provisions into more general legislation, such as trade agreements and the annual National Defense Authorization Act (NDAA).

Trade agreements signed before July of 2021 will receive an up-or-down vote from Congress, without the risk of death in committee or a filibuster.  A progressive administration moving quickly on a trade agreement could build strong climate-related commitments into it – commitments that would bind the United States and the country or countries with whom it is making the agreement.

The NDAA goes through Congress’s ordinary legislative procedures and is subject to the filibuster.  But its status as a “must pass” annual bill makes it a place where law really does get made.  Even in 2018 – a time when Republicans controlled both Houses and the Presidency – the NDAA managed to include some notable climate-related provisions.  A lot more could be done through it, and through other authorization acts as well.

Lesson 2: Legislate to Protect Progressive State and Local Governments

A more progressive Congress and President will hopefully lead to strong climate-related laws and regulations.  But another lesson from history is that these progressive actors will be replaced in two, four, six, or eight years by less progressive ones.  The cyclicality of U.S. politics at the national level has brought home the importance of climate mitigation by state and local governments.  One of the most important things that a progressive Congress could do is thus to legislate in support of state and local governments seeking to go above a federal floor in their climate mitigation policies.  Here are a few suggestions for what such protections could look like:

  • Congress could specify in legislation that federal law on climate is a floor rather than a ceiling. Some pre-existing environmental laws have provisions along these lines, such as a provision in the Clean Air Act permitting California to set vehicle emissions standards that are higher than the federal floor as long as it gets a waiver from the executive branch permitting it to do so.  Instead of requiring an executive branch waiver, the climate law could be structured to omit such executive branch supervision entirely or to require that, in order to stop a state from exceeding the federal floor, the executive branch must prevail in court and prove certain specified statutory criteria.
  • Congress could try to craft legislation that protects progressive local governments from state governments. In many states, populous cities are more progressive on climate than are the state legislatures.  Congress cannot directly ban state legislatures from setting limits on their localities (because of a constitutional principle known as anti-commandeering).  But Congress would be on stronger (though not ironclad) constitutional grounds if it legislated to say that local governments have the option of taking certain climate-protective steps “notwithstanding any provision of state law”.
  • Congress could provide a blessing in general terms for state and local governments to enter into agreements with foreign counterparts with respect to climate mitigation. States and local governments are currently making these agreements anyway. But in order to ward off any lingering concerns about the constitutionality of these agreements under the Constitution’s Compact Clause, a congressional signal of support for these endeavors would be valuable.

By taking such steps, a progressive Congress would increase the likelihood that climate mitigation actions will continue regardless of national political changes.

Jean Galbraith is Professor of Law at the University of Pennsylvania Law School.