Climate Change is the Most Important Issue in Administrative Law, by Kathryn E. Kovacs
Our climate is changing, and humans are contributing to that development. On those points there can no longer be any reasonable debate. The extent of the problem and what to do about it, however, are ripe for discussion. Indeed, those questions are the most pressing questions of our day and perhaps the most pressing questions in the history of humankind.
But are they questions of administrative law? Should those of us who teach administrative law relegate these questions to environmental law class and not discuss them in our classes as well? Should we leave discussions about combating climate change to the environmental law professors? To the contrary, climate change is the most important question in administrative law.
By any metric, climate change is a question of administrative law. For one thing, the Supreme Court’s opinions regarding climate change, Massachusetts v. EPA and Utility Air Regulatory Group v. EPA, appear in most administrative law casebooks. If you need more convincing, here are a few other points to consider.
First, agencies cause or contribute to greenhouse gas emissions. Not only do agencies operate facilities that emit greenhouse gases, but agencies also authorize private parties to take actions that emit greenhouse gases. Agencies establish motor vehicle emissions standards. They lease federal lands for mining fossil fuels. They regulate (or fail to regulate) greenhouse gas emissions in the power sector. How agencies address these effects is a question of administrative law.
Second, we have gotten ourselves into this climate predicament in large part because of administrative law failures. In our administrative law classes, we discuss how Congress has abdicated its position as the lead policy maker in the U.S. government. We discuss how presidents have taken on that role through unilateral orders. We discuss the policy flip-flopping between presidential administrations. Climate change is an excellent example of all of these phenomena.
Third, addressing climate change will necessarily involve government agencies at all levels of government. Congress eventually may address climate change through legislation, but implementing climate change policy will require agencies. Perhaps EPA will change clean air standards. The IRS might implement a carbon tax. The Department of Homeland Security may assist climate refugees. And the list goes on. In all likelihood, nearly every agency of the U.S. government will affect and will be affected by climate change.
The potential consequences of failing to address climate change are dire. We administrative law teachers should familiarize ourselves with this issue and discuss the administrative law implications with our students. There is no issue of more consequence for future generations. We may be gone, or hope that we are gone, by the time things get out of hand. But our students will be here. We must equip them to deal with this question.
We should not worry that we are not experts in climate change. We teach cases about all sorts of things that we know very little about, because administrative law crosses many subject matters. We teach Vermont Yankee although few of us are experts in nuclear science. The basics of climate change are no more difficult for an administrative law professor to learn than nuclear power generation. Thousands of scientists from around the world review and synthesize all of the peer-reviewed science on the subject for the reports of the United Nations’ Intergovernmental Panel on Climate Change. Even an administrative law professor can understand the Summary for Policymakers.
In the 1975 edition of the Columbia Law Review, Ernest Gellhorn and Glen Robinson “emphasized the interrelationship of procedural administrative law and substantive administrative policy” and “suggest[ed] a way of thinking about the subject—a perspective unconfined by the traditional, and to us somewhat artificial, conventions which have circumscribed it.” We do ourselves, our students, and our discipline a disservice by seeing administrative law with blinders on. Administrative law teachers should be part of the discussion about how to address climate change. We have necessary expertize and helpful insights about how to structure the legal responses to climate change. We owe it to the future not to sit this one out.
Kathryn E. Kovacs is a Professor of Law at Rutgers Law School. Follow her on Twitter here.