U.S. Climate Change Law: A Decade of Flux and an Uncertain Future

Abstract

Climate change is a defining feature of contemporary existence. It also poses fundamental challenges to the rule of law. As the scale of the climate crises swells, so too do efforts to develop innovative strategies for addressing climate change at the local, state, and national levels. This innovation is driven by necessity and is fueled by creative and determined actors from across the public and private sectors. But the pace of legal innovation is uneven, and the consistency of political leadership is erratic. Nowhere is this more evident than at the federal level in the United States, where presidential politics vividly demonstrate the degree to which we still lack a collective national vision for how to respond to climate change. In this Article, I argue that as important as presidential leadership is, lawmakers and scholars should not focus myopically on the vagaries of presidential climate politics and federal climate law. Between 2009 and 2019, the United States elected the most climate-friendly president in U.S. history and then replaced him with the most climate-skeptical president in U.S. history. Within this dramatic decade, notwithstanding the fluxes and flows in legal development at the federal level, there has been a steady stream of legal innovation by subnational and non-state actors. The interactions between national, subnational, and non-state climate governance efforts are one of the most under-explored dimensions of domestic climate change law. This Article addresses this gap by examining key developments in U.S. climate change law and policy over the period 2009–2019, to reveal how subnational and non-state initiatives complement and constrain the development of national climate change law and policy over time.