By Theresa Borden — Oct. 1, 2013 at 3:33pm
New legislation to deal with the global problem of climate change may seem politically unrealistic given the current inhospitable environment in Congress, but there are reasons to think that the prospect of reaching an international agreement may be more viable now than it was in the past. UN Secretary-General Ban Ki-Moon recently called for world leaders to meet in anticipation of the 2015 international climate meeting in Paris and the Intergovernmental Panel on Climate Change (IPCC) recently announced that humans are the dominant cause of global warming since the 1950s. Although climate change denial still exists in the U.S., the international community generally accepts the science. Interestingly, this could indicate that reaching an international agreement is easier than reaching a domestic agreement. Of course, Congressional action would still be necessary to ratify any treaty, but if the enumerated shortcomings of the Kyoto Protocol are addressed in the 2015 negotiations, domestic action may be facilitated, especially if the President stands behind the agreement.
But even if the legislature and the executive get behind an international climate change agreement, there is still the judiciary. The Supreme Court recently granted cert for Bond v. U.S., which challenges Congressional authority to enact a federal statute enforcing the Chemical Weapons Convention on the grounds that it intrudes on areas of police power reserved to the states. The Court found that Ms. Bond lacks standing to bring a claim that applying the chemical weapons treaty to her violated the Tenth Amendment, thus avoiding revisiting Missouri v. Holland. However, the Court did certify one question that may have implications for international climate change agreements: “Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations?”
Although Bond may not have a direct effect on international climate change negotiations, it could provide some guidance on how to frame the scope of the treaty and the government’s treaty obligations. If an international agreement is reached, the U.S. must promulgate implementing legislation that will pass not only the political process, but also judicial review — it is possible that climate change deniers will try to undermine any climate change agreement in court. Bond, along with EPA v. EME Homer City Generation,[1] will provide some insight into how the Court determines the scope of “traditional state prerogatives” and how such considerations play out in environmental regulation.
Meaningful climate change regulation is inevitable; the question is when it will come. Environmentalists must be aware of not only possible political solutions, but also potential fallout of judicial determinations. If an international deal is brokered, it would be counterproductive to provide domestic dissenters with any fodder to challenge it. Hopefully the Court will rule narrowly in Bond, and not make any pronouncements that would confuse settled federal authority to regulate interstate pollution. Even if it would be preposterous for domestic dissenters to challenge federal authority on such grounds, the commerce clause challenge to the Affordable Care Act — which many commentators dismissed as irrelevant — cautions against completely ignoring the possibility.
[1] Specifically, the Court’s consideration of “whether states are excused from adopting state implementation plans prohibiting emissions that ‘contribute significantly’ to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations.”