Climate Change Bill Needs State Roles, Says Emory's Buzbee

The Boxer-Kerry bill on climate change now making its way through Congress moves in the right direction, says environmental law expert William Buzbee, but some critical improvements are needed to make the legislation effective.

Buzbee's analysis of the bill, one of a series from the Center for Progressive Reform (CPR) by their member scholars, appears on the CPRBlog.

One unintended consequence of the bill's many implementation steps and corrective mechanisms, writes Buzbee, "is an avalanche of obligations." A big question, he says, is whether this "will lead to implementation delays."

A big risk in Boxer-Kerry, says Buzbee, "is that the federal law could prove too lax, but that the federal legislative and regulatory venues would be gridlocked and hence unable to set new, lower emissions caps or take other actions to lower emissions levels."

If that happens, he writes, "states might once again want to reassume the climate change leadership role they exhibited over the past decade and take actions to reduce emissions."

The bill does have provisions to preserve states' ability to require lower emissions than federally mandated, and provisions to prevent polluters from "simply turning and selling emission allowances or credits outside the jurisdiction."

Boxer-Kerry also retains the power of the federal EPA "to take action to supplement a cap-and-trade scheme if that proves necessary," writes Buzbee. "In reality, the mere threat of such supplemental action could nudge polluters into supporting implementation of the cap-and-trade regime."

Yet the bill is less than clear on whether "state supplemental roles are meant to be preserved under all the bill's provisions," writes Buzbee. A second important but missing element "is a citizen suit provision authorizing citizens to sue regulators, polluters, or other players in the cap-and-trade market for violations of the law."

With a law this complicated, writes Buzbee, "a multiplicity of enforcers is needed."

He concludes that "retention of state roles in combating climate change and adding a citizen suit provision" are near necessities "if a cap-and-trade market is to become a well policed reality."

Buzbee is professor of law and director of the Environmental and Natural Resources Law Program at Emory Law School. He is also a director of Emory’s new Center on Federalism and Intersystemic Governance.

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