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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 the United States relied heavily on administrative regulation because comprehensive climate change legislation could not pass Congress, Australia’s flip-flopping legislation did not offer a demonstrably superior solution. We did not at the time foresee the political changes that would take place in both countries over the five years that followed. The transitions from President Obama to President Trump to President Biden have involved dramatic shifts in regulatory policy at the same time as the same conservative Coalition government has until recently continued to hold power in Australia. This Article revisits our thesis, given these changes, that both forms of government face barriers to effective lawmaking when deep partisan divisions exist. We find that although the politics of particular periods may make one political system more stable in approach than the other, neither country has made consistent progress in addressing the problem of climate change. In addition, subnational governments and other key stakeholders have taken action in both countries when confronted with partisan barriers at the federal level. We conclude that the dramatic regulatory shifts in the United States and the limited regulatory action in Australia over the past five years only bolster the importance of advancing substantive and structural strategies that foster greater cooperation.

This Symposium issue is made possible in part by our Platinum Symposium Sponsor Wilson Sonsini Goodrich & Rosati.