CPR Scholarship Roundup: Legal and Policy Implications of Regulating Carbon, from Cap-and-Trade to Coal Sequestration

As climate change legislation awaits action in the Senate, serious and complicated legal and policy questions about the tools designed to reduce carbon emissions remain. Truly, the climate change debate operates in two distinct worlds. The first is becoming increasingly hysterical, consisting of sensational and camera-ready protests and attacks underwritten by groups such as the American Petroleum Institute and the National Association of Manufacturers. The second rages below the media waterline, in the wonky weeds of policy and legal scholarship. The pitchforks aren’t out in the second realm, but issues debated are crucial nevertheless.

CPR Member Scholars Bill Funk, Lesley McAllister, and Victor Flatt have recently published articles discussing several important aspects of both existing and emerging efforts to reduce carbon emissions.

• Bill Funk, in his article Constitutional Implications of Regional CO2 Cap-and-Trade Programs: The Northeast Regional Greenhouse Gas Initiative As Case in Point in the UCLA Journal of Environmental Law and Policy, puts to rest several arguments that are sometimes trotted out by pro-preemption advocates to suggest that regional cap-and-trade programs are unconstitutional. For folks concerned about the feds running roughshod over regional and state cap-and-trade programs to the detriment of the environment, Funk’s analysis of RGGI’s status under the Interstate Commerce Clause and the Dormant Commerce Clause debunks several pro-preemption arguments made under these clauses.
• Lesley K. McAllister, in her article The Overallocation Problem in Cap-and-Trade: Moving Toward Stringency, which just appeared in the Columbia Journal of Environmental Law, analyzes the overallocation problem -- what happens when too many carbon emission allowances are provided to carbon sources and thus they make few, if any, emissions reductions -- in four major cap-and-trade programs. Because overallocating allowances is so prevalent in these programs, as well as so tempting for policymakers because it requires less of politically powerful polluters, McAllister argues that program caps should be established based on agency determinations about the feasibility of emissions reductions
• Victor Flatt, in his article, Paving the Legal Path for Carbon Sequestration from Coal, which appeared recently in the Duke Environmental Law and Policy Forum, focuses on the jurisdictional, liability, and property rights issues that are likely to emerge should carbon capture and storage take hold. Flatt also provides recommendations for federal legislation that would address the major legal barriers to successful carbon sequestration programs.