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Volume 39 • Issue 2

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Foreword: On the Imperative of Adapting to Climate Change

For climate change and the administrative state, imagine two situations: Congress has enacted a Climate Change Act (CCA), which gives specific directions, and specific authorities, to an assortment of agencies: the Environmental Protection Agency, the Department of Transportation, the Department of Interior, the Department of Homeland Security, the Department of Energy, and others. In the […]

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Promoting “Climate Change Plus” Industries Through the Administrative State: The Case of Marine Aquaculture

Climate change has reached its “all hands on deck” moment, requiring simultaneous mitigation and adaptation efforts and the participation of all branches of government at all levels—including (and maybe especially) the administrative state. However, while certain agency exercises of climate change discretion have received considerable commentary, less attention has been paid to the ability of […]

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Feasibility Analysis and the Climate Crisis

Agencies prepare feasibility analysis when proposing standards limiting greenhouse gas emissions and explicitly base their standard-setting decisions on what is feasible. They do this because the relevant statutes demand maximization of feasible emission reductions. Cost-benefit analysis (CBA) provides a supplement to the statutorily required analysis. This Article argues that the President should limit CBA’s role […]

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Costs, Confusion, and Climate Change

In the United States, the primary tool to value greenhouse gas emissions reductions in cost-benefit analysis is the social cost of carbon (SCC), which is a metric that estimates, in monetary terms, the damages associated with climate change. Recently, some prominent public policy experts and scholars have proposed that a “marginal abatement cost” (MAC) could […]

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Valuing the Future: Legal and Economic Considerations for Updating Discount Rates

Discount rates reflect the commonly held belief that a dollar today is worth more than a dollar tomorrow. Therefore, consistent with observed human behavior, governments use discount rates to weigh and compare present versus future costs and benefits in their decisions. The choice of discount rates greatly impacts which government regulations are cost-benefit justified, particularly […]

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Evaluating Project Need for Natural Gas Pipelines in an Age of Climate Change: A Spotlight on FERC and the Courts

As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas […]

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Climate Policy Buffers

The Trump administration wreaked havoc on U.S. climate policy by withdrawing from the Paris Agreement, undoing climate regulations, and undermining the foundation of future regulatory efforts. The Biden administration has begun to reverse the Trump administration’s climate rollbacks, but Democrats have struggled to enact legislation that would directly limit carbon emissions. Because federal climate policy […]

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Regulatory Oscillation

In the wake of the Reagan deregulation, America experienced twenty-eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump’s presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack […]

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Delegating Climate Authorities

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates […]

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“The Grass is Not Always Greener” Revisited: Climate Change Regulation Amid Political Polarization

In 2016, we co-authored a symposium article, The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective, 91 Chi.-Kent L. Rev. 139 (2016), that compared the impact of polarization on the process of creating climate change law and policy in the United States and Australia. We found that while […]

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The Social Cost of Greenhouse Gases: Legal, Economic, and Institutional Perspective

The social cost of greenhouse gases provides the best available method to quantify and monetize the climate damages attributable to the emission of an incremental unit of heat-trapping pollution. Accordingly, the metric can be highly useful for crafting policies that will reduce the nation’s greenhouse gas footprint, with potential usages including weighing the impacts of […]

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All the Tools in the Toolbox: A Plea for Flexibility and Open Minds in Assessing the Costs and Benefits of Climate Rules

As the Biden Administration works on updating the social cost of carbon (SCC), some economists are urging a different approach, known as the “Marginal Abatement Cost” (MAC) method or the “target-consistent” approach. Rather than attempting to calculate all the damage caused worldwide by each ton of carbon dioxide released into the atmosphere, the MAC approach […]

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Naïve Administrative Law: Complexity, Delegation and Climate Policy

The Supreme Court’s ongoing efforts to narrow the contours of administrative agencies’ policymaking discretion comes at a particularly inopportune time. The nation faces a set of increasingly complex and pressing national problems, including climate change, that require the simultaneous application of careful deliberation and expertise, something Congress is ill-suited to do in the best of […]

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Climate Change Cosmopolitanism

Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate […]

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Climate Change Attribution Science and the Endangered Species Act

Climate change poses an enormous risk to plant and animal species across the planet. Mean global temperatures have already increased by approximately 1ºC, causing environmental changes that affect species abundance, distribution, behavior, physiology, genetics, and survival prospects. These changes, combined with other human stressors, have already resulted in the extinction of some species and imperiled […]