Thursday, January 29, 2009

Anti-Regulatory Climate Change Litigation

Much of the news on climate change since Inauguration has been of moves to increase federal regulatory efforts. However, a lawsuit filed today by Indek Energy serves as a reminder that litigation remains a powerful regulatory tool. As reported by the New York Times, Indeck Energy filed a challenge in New York county court to the legitimacy of the Regional Greenhouse Gas Initiative, an effort by Northeastern states to establish a cap-and-trade schema. The suit claims that New York lacks the authority to join without legislative approval, and that the scheme requires Congressional approval.
Whether or not the lawsuit succeeds, it becomes part of the state-corporate regulatory dynamic regarding climate change. As I have explored in depth in recent articles, climate change litigation either focuses on the appropriate extent of government regulation or directly targets major emitters. I have argued that new federal Congressional or Executive action should not preclude such litigation because it serves as an important lever in the overall regulatory scheme. Although this suit pushes against regulation, other claims pressure the government to regulate in ways that it would not otherwise have done or encourage major emitters to take needed steps.

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