Political Accountability and Judicial Review in the Context of Climate Change Regulation

摘要

Polling data indicates that there is a growing consensus among the American public that climate change is real, a looming threat, and that something must be done about it. However, the data also shows that the reality of our current political moment and the stark difference in climate change ideology among political parties stands in the way of comprehensive climate change legislation. While optimism remains, the EPA must fall back on the statutory tools left available to it. The CAA provides the EPA avenues with which to pursue regulation of GHGs. The Supreme Court has sanctioned the use of the CAA for this purpose, at least in some instances. The EPA is largely left to determine when, and in which ways, the CAA gives it the legal authority to regulate GHGs. It is in this context that we have seen stark contrasts in approaches across presidential administrations on how and whether regulation of GHGs should take place. In creating its regulatory boundaries, the EPA engages in statutory interpretation of the CAA. Entities such as OIRA, within the EOP, and under authority of various executive orders, are also involved in determining EPA's regulatory approach to GHGs. Between administrations, there have been stark contrasts in interpretations of the same language. These interpretations inevitably get challenged and it becomes up to the courts, using their standards of judicial review, to determine whether EPA's interpretation is reasonable, or rather, if it is arbitrary and capricious.