The months leading up to the 2021 United Nations Climate Change Conference (COP26) in Glasgow put the climate crisis in stark relief. Heatwaves blanketed the American Northwest, shattering temperature records as mortality rates surged.1 Wildfires raged across Greece, destroying over 120,000 acres of pine forests.2 Unexpected monsoons and dry spells disrupted weather patterns in Madagascar, resulting in famine for hundreds of thousands of people.3 And scarcity in freshwater sources in Asia exacerbated geopolitical tensions, as China’s efforts to redirect rivers caused extraterritorial droughts and floods.4
During the summer before COP26, the United Nations Intergovernmental Panel on Climate Change (IPCC) released a report hailed as “the clearest and most comprehensive summary yet of the physical science of climate change.”5 The IPCC report detailed harsh realities. Human activity has increased global temperatures by around 1.1°C from preindustrial levels6 and has emitted enough greenhouse gases (GHGs) that the world will continue to warm for around thirty years, even if drastic measures are taken today.7 The landmark Paris Agreement, adopted in 2015, established a goal to limit the global temperature increase to “well below 2°C” with 1.5°C as a target.8 The 1.5°C target aims to sustain critical ecological systems.9 However, the latest IPCC report left open only a narrow window of hope for this goal. Only the best-case scenario contemplated by the IPCC — featuring aggressive emissions cuts over the upcoming decades — will confine the global temperature increase to around 1.5°C.10
Against this backdrop, some commentators referred to COP26 as “a last-ditch effort”11 — a dramatic shift in tone from only a few years earlier, when the adoption of the Paris Agreement was celebrated as “a victory for all of the planet and for future generations.”12 At COP26, participating nations made various pledges to reduce emissions.13 Nonetheless, climate scientists concluded that, while narrow progress occurred at the conference, the world was still far from on track to meet the 1.5°C target or even to constrain the temperature increase to 2.0°C.14 Protests erupted around the globe.15
While mainstream coverage of COP26 tended to focus on major nations,16 the conference also reflected a trend toward the involvement of various levels of government in climate change action. Glasgow featured a record number of U.S. governors,17 broad coalitions of local governments,18 and “a historic presence of Indigenous leaders.”19
This edition of Developments in the Law builds on scholarship that embraces the potential for various levels of government to coexist and collaborate in combating climate change.20 The five Chapters catalog developing spaces for climate action across various domains of government: local prosecution, American Indian treaty litigation, state preemption of local zoning laws, state public service commissions, and tariffs aimed at foreign emissions.21 Although the first four Chapters center on efforts within the United States, it is worth noting that the involvement of various levels of government in climate policy is a global phenomenon.22
First, this Introduction reviews how climate change has been generally discussed as a collective action problem. One pervasive framing is the tragedy of the commons, which proposes that individuals cannot preserve common resources without top-down regulation due to their self-interests. This Introduction considers how this framing has been applied in discussions of the inadequate responses to climate change at the federal and international levels. Second, this Introduction turns to subnational governments, which have been entering the climate policy arena since the early 2000s.23 Notably, the phenomenon of subnational governments taking voluntary action to combat a global problem raises questions about the tragedy of the commons, and scholars now generally view this framing as incomplete. Instead, recent scholarship tends to embrace the role of a range of government actors in climate action, providing a breadth of responses beyond traditional top-down regulation.
Third, this Introduction references the five Chapters to discuss some of the advantages of a dynamic, multilevel approach to climate change. As the first four Chapters reflect, many of these advantages are associated with subnational governments, such as regulatory gap filling and addressing intersectional issues that involve both climate policy and social inequities at a local level. Other advantages can be uniquely implemented at the national level, as seen in Chapter V’s exploration of carbon tariffs as a means to incentivize collective action between nations. What all of the Chapters have in common is their outpouring of innovation and creativity aimed at combating the world’s greatest environmental challenge. This Introduction concludes by providing summaries of the five Chapters.
A. The Wait for Top-Down Solutions
To understand the significance and limitations of efforts at various levels of government, it is useful to recognize that climate change is a global collective action problem.24 For decades, ecologist Garrett Hardin’s account in The Tragedy of the Commons25 has pervaded environmental policy debates.26 In Hardin’s view, “[f]reedom in a commons brings ruin to all.”27 If individuals are free to act in their self-interests, they will exploit and derogate common resources to their mutual detriment.28 To each individual, the behavior is rational, since the individualized benefits of preservation pale in comparison to those of exploitation.29 Thus, Hardin’s solution to preserve environmental commons that cannot be privatized, such as the air, is for individuals to constrain their freedom by binding themselves to a system of centralized rules30 — in other words, “mutual coercion, mutually agreed upon.”31
This framing in favor of top-down regulation has influenced multiple eras of environmental policymaking.32 For instance, uncoordinated subnational actors’ struggles to manage pollution justified federal intervention in the 1970s through legislation such as the Clean Air Act.33 In recent decades, many commentators have viewed climate change as “a classic tragedy of the commons,”34 in which “[t]he atmosphere is the ultimate example of a commons at risk of being destroyed by global society.”35 Under this framing, “rational actors should be incentivized to overuse the atmosphere because no small entity acting independently can benefit by withholding its pollution and the costs of reducing emissions are localized while the benefits are widespread, indeed worldwide.”36
To Hardin, then, the optimal way to combat climate change would be through top-down global rules,37 and nations should coalesce if they can agree upon a “fair means of allocating the burden of solving the tragedy.”38 But differing conceptions of fairness and self-interests have limited cooperation.39 At the 1997 United Nations Climate Change Conference, many industrialized nations joined the Kyoto Protocol, a treaty that set binding targets for emissions reductions.40 To allocate burdens, the treaty exempted developing countries from binding targets while placing the heaviest burdens on the industrialized nations that had historically contributed most to GHG emissions.41
At the time, the United States was the largest emitter of GHGs42 but did not ratify the Kyoto Protocol due to its own conception of fairness and self-interests. Earlier in 1997, the Senate had passed a unanimous resolution asserting that the United States would not join an international agreement to reduce emissions that exempted developing countries or would significantly harm the nation’s economy.43 As a result, the Clinton Administration opted not to submit the Kyoto Protocol to the Senate for ratification.44 The Bush Administration affirmed a posture against the treaty on the basis of economic interests, the exemption of developing countries, and likely opposition from the Senate.45 The United States was not wholly an outlier, though. For instance, in 2011, Canada withdrew from the Kyoto Protocol, justifying the decision on the basis of national economic interests and the exemption of developing countries.46 With international law lacking the “teeth” for top-down coercion, “[t]he sovereignty of nations look[ed] like Hardin’s fatal freedom.”47
In 2015, the Paris Agreement succeeded the Kyoto Protocol as the key international instrument to reduce global emissions. Unlike the top-down Kyoto Protocol, the Paris Agreement employs a bottom-up approach, in which nations voluntarily set nonbinding emissions targets.48 The Obama Administration played an instrumental role in designing the nonbinding features.49 This structure allowed the Administration to join the Agreement through executive action, bypassing what stood to be an ill-fated treaty-ratification process in the Senate.50 However, in 2017, the Trump Administration announced an intent to withdraw from the Paris Agreement, contending that it was unfair to hold the United States to higher standards than developing nations that were also major contributors to GHG emissions, such as China and India.51 President Trump famously declared that he was “elected to represent the citizens of Pittsburgh, not Paris.”52 The withdrawal was readily viewed as another instantiation of the tragedy of the commons, fraught with self-interests and differing beliefs on how to allocate burdens fairly.53 Despite the Biden Administration’s reentry into the Paris Agreement,54 over time, familiar dynamics have left a lasting impression: “Hardin’s legacy looms in climate policy.”55
B. The Rise of Bottom-Up Approaches
As responses to climate change at the federal and international levels have proven inadequate, subnational governments have ascended to the forefront of the United States’ response to climate change.56 The first major push occurred in the 2000s, as the Bush Administration solidified the nation’s opposition to the Kyoto Protocol and walked back campaign promises to reduce GHG emissions from power plants.57 In an attempt to fill the void, hundreds of local governments adopted measures aspiring to meet the emissions targets of the Kyoto Protocol.58 The 2000s saw a breadth of subnational initiatives, such as regulating vehicle emissions, creating requirements for renewable energy, instituting standards for power plants, forging interstate agreements to report emissions, and litigating against the federal government59 — famously in Massachusetts v. EPA.60 In essence, “if one were to peer beneath the federal lid to see what sub-federal actors [were] doing with respect to climate change, there would be no shortage of things to watch.”61
During this era, the phenomenon of subnational actors taking responsibility for a global collective action problem puzzled scholars, as the trend did not neatly map onto to Hardin’s framing of the tragedy of the commons.62 After all, under that view, “[a]ction by a jurisdiction of any small geographic scope outside a cooperative international agreement is widely considered economically irrational.”63
Regardless of the cause,64 scholars readily debated the merits. Proponents of subnational efforts pointed toward regulatory gap filling, experimentation for shared learning, and generating public support for national and international measures.65 Meanwhile, more critical scholars recognized benefits of subnational action but highlighted that subnational efforts alone would provide only trivial emissions reductions while potentially creating negative externalities.66 For instance, scholars suggested that the lack of coordination invites market inefficiencies like free riding,67 imposes high transaction costs through regulatory complexities,68 and creates regulatory “leakage” where the sources of emissions shift to unregulated spaces.69 Given such considerations, some environmental scholars suggested it was “better to wait to develop a comprehensive and effective climate change policy rather than to continue succumbing to pressure to adopt incremental options.”70
Nonetheless, as the climate crisis grew, the involvement of sub-national governments did as well. The trend advanced during the years of the Obama Administration.71 Then, the Trump Administration’s 2017 announcement of its intent to withdraw from the Paris Agreement ignited a new wave of subnational efforts.72 States, local governments, and tribes formed broad bipartisan coalitions, such as “We Are Still In,” to affirm an intent to meet the nation’s Paris Agreement emissions targets.73 The mass of subnational efforts even helped to sustain the United States’ international reputation on climate policy during the years in which the nation was not committed to the Paris Agreement.74 On the state level, recent initiatives have included adopting ambitious plans toward clean energy and adapting infrastructure for increasingly severe weather.75 On the local level, recent efforts have included implementing low-emissions public transportation and studying how climate change gentrifies low-income communities and how to adjust property taxes accordingly.76 Subnational trends have not been uniformly positive for the climate, however. For instance, general trends of state preemption of local policy can stifle environmentally friendly policies.77
Still, state, tribal, and local governments are recognized as “key leaders on climate ambition” in the United States today.78 And unlike the mixed reaction in the 2000s, recent literature broadly embraces the involvement of various levels of government.79 Some justifications contain themes that reprise from earlier eras, such as pressuring action at higher levels of government,80 allowing for more experimentation,81 and regulating areas within a state’s traditional authority.82 Additional points include how local actors are best positioned to address the intersections between climate change and social inequities83 and how the transformation of cities into economic hubs has positioned them to undertake sustainability initiatives.84 Meanwhile, the more critical scholarship on subnational initiatives has shifted to accepting them while focusing on limiting their negative externalities.85
The trend toward embracing the role of various actors can be contextualized within broader shifts in economic theory and environmental planning. In 2010, Professor Katherine Trisolini suggested that earlier dismissive views about subnational governments were connected to the entrenchment of the tragedy of the commons in theoretical literature on environmental law.86 However, recent decades have seen recognition of the incomplete nature of the tragedy of the commons across academic disciplines.87 For instance, political scientist Elinor Ostrom demonstrated how communities with cooperative social norms can successfully self-organize to preserve resources within free markets.88 In addition, scholars observe that while Hardin’s framing presupposes that serving self-interests results in degradation, there are instances in which self-interests align with environmentally friendly action.89 Thus, with recognition of the incomplete nature of Hardin’s framing, recent theory on environmental planning embraces dynamic policy responses throughout a multilevel government, providing a breadth of responses beyond traditional top-down regulation.90
C. Multilevel Governance of the Climate Commons
This edition of Developments in the Law is situated in an era in which the world faces its greatest environmental challenge, but governments have not produced the kind of comprehensive, top-down regulation that environmental scholarship has long suggested is the proper solution. Key countries, such as the United States, have not consistently cooperated. Yet a range of government actors has assembled in the climate policy arena. While unexpected, this multilevel approach has a great deal of merit within a broader response to climate change. With reference to the Chapters, this Introduction discusses a sampling of the many advantages, including: (1) addressing climate policy alongside social inequities, (2) offering greater opportunities for experimentation, (3) regulating in a state’s traditional domain, sometimes by leveraging instances in which self-interests align with pro-climate policies, (4) pressuring nations to raise ambitions under the Paris Agreement, and (5) using trade law to incentivize collective action among nations without relying on multilateral negotiations.
First, a multilevel approach best serves issues affecting both the climate and social inequities. While top-down policymaking is prone to overlooking local inequities, local governments “may have more context-specific knowledge and a better ‘social and ecological fit’ for the communities they serve.”91 Thus, efforts by local actors complement the climate justice movement,92 which addresses the links between climate change and sociological inequities, such as the disproportionate impacts of climate change on people of color.93 There are even situations in which climate-friendly policies are in tension with other social interests. For instance, environmental improvements in a locality can raise property values and inadvertently displace low-income individuals.94 As Professor Sarah Fox explains, local governments are well positioned to represent these kinds of minority interests that might not be addressed at the state and federal levels.95
Chapter I provides an archetypal discussion of the interactions between local governments and social justice in its discussion of local prosecutors’ role in the climate crisis. The Chapter explains how local prosecutors are best positioned to understand how a community is uniquely impacted by climate change and to shape prosecutorial policy accordingly. Moreover, Chapters II and III demonstrate spaces for intersectional climate policy even outside of the context of local government. Chapter II argues that American Indian treaty litigation can both safeguard Indigenous communities and fight climate change. Meanwhile, Chapter III argues that state preemption of local zoning can reduce both emissions and zoning’s segregating effects.
Second, Fox suggests that subnational experimentation is particularly valuable for climate policy, given that climate change is a novel problem.96 In this spirit, Chapter II’s discussion of treaty litigation has yet to be tested in a courtroom. Likewise, Chapter I recognizes that its proposals may “ask local prosecutors to take on tasks and assume priorities they may be largely unfamiliar with.”97 And while experimentation is often associated with subnational governments, Chapter V examines how national governments, including the U.S. federal government, are considering using trade law to catalyze international action.
Third, subnational climate policymaking is valuable in domains of traditional state authority, including land use and utilities regulation.98 Chapters III and IV speak to this, discussing zoning policies and public services commissioners, respectively. The Chapters argue that states have yet to provide adequate responses and present arguments that rely on less traditional concepts in environmental planning. While Hardin’s framing presupposes that serving self-interests results in degradation, today, policymakers can take advantage of instances in which self-interests align with climate-friendly policies.99 For instance, installing modern clean energy sources can be in one’s economic interests.100 Indeed, “reducing emissions is not just good for the environment — it can also boost bottom lines.”101 Tellingly, even amid decades of congressional inaction on “climate change” legislation,102 Congress passed significant climate-friendly legislation modernizing energy sources.103 Fitting within this dynamic, Chapter IV’s discussion of public service commissioners contains an argument that states should adopt clean energy mandates as a politically palatable short-term solution. Similarly, Chapter III’s promotion of the trend of states preempting local zoning observes its political feasibility given that “almost everyone agrees that housing is too expensive.”104
Fourth, subnational actors can play an important role in combating climate change within the Paris Agreement’s “hybrid architecture.”105 The Paris Agreement is largely a bottom-up measure as nations voluntarily set nonbinding targets.106 Unlike the top-down Kyoto Protocol, the structure of the Paris Agreement has facilitated near-unanimous participation by the international community.107 Working within this framework, Professor Sharmila Murthy argues that subnational actors can play an important role as subnational movements shape norms over time, pressuring nations to keep up and set more ambitious targets.108 The four Chapters on subnational action all embody this call to action by presenting arguments that contribute toward climate-conscious norms. For example, Chapter IV argues for measures aimed at shifting the “institutional culture” of state public service commissioners.109 Away from subnational action, Chapter V argues that carbon tariffs may shape norms of customary international law on climate change.
Fifth, even if the Paris Agreement is a valuable tool, trade measures can help to shape global climate policy even without multilateral agreements. This supplement may be useful in the face of persistent arguments that Hardin’s vision of the tragedy of the commons can hold true in large competitive environments.110 While Hardin’s framing depicted top-down coercion as the solution, “governance tools are not necessarily ‘top-down’ or ‘bottom-up’ in themselves, but in how they are implemented.”111 Accordingly, Chapter V explores carbon tariffs as an alternative to multilateral treaties. As the Chapter explains, carbon tariffs impose a cost on imports based on the exporting jurisdiction’s carbon footprint for goods; thus, the exporting jurisdiction is “incentivized to implement climate policies in order to gain an exemption.”112 In effect, carbon tariffs seek to coerce collective action while avoiding the need for traditional top-down regulation.113
D. Chapter Summaries
This edition of Developments in the Law proceeds in five Chapters, cataloging a diverse set of efforts to combat climate change in a multilevel government. The Chapters take on different projects, ranging from addressing the unique needs of local communities to reviewing novel trade regulation to incentivize global policy reform. What all five Chapters have in common is that they represent an outpouring of creativity and innovation as the world faces its greatest environmental challenge.
Chapter I situates the role of local prosecutors in the climate crisis. The Chapter begins by examining how climate change will impact the criminal justice system, including by changing patterns of crime and exacerbating conditions of confinement in prisons and jails.114 The Chapter provides a framework for how local prosecutors should deploy their authority, recognizing that local prosecutors have familiarity with their communities and will likely be at the forefront of any criminal justice response to these climate-driven disruptions. The Chapter argues that local prosecutors should resist employing the type of “tough on crime” ethos that has failed to solve other systemic social problems, as the war on drugs has exemplified.115 Rather, the Chapter argues that local prosecutors should aim to foster community resiliency to help withstand the effects of climate change, primarily by adopting restorative justice approaches.116 The Chapter further argues that local prosecutors would be justified in focusing their resources on the “root cause[s]” of climate change by holding corporate polluters accountable.117
Next, Chapter I discusses how local prosecutors can apply those principles in practice. To do so, the Chapter surveys recent examples of local prosecutions against corporations that contributed to climate change or exacerbated its consequences. For instance, local prosecutors have brought charges against an electric utility for sparking wildfires, a chemical manufacturer for failing to anticipate a climate-fueled hurricane, and a natural gas company for facilitating the largest methane leak to date in the United States.118 These sorts of actions have numerous limitations, including the relatively low penalties and resource-intensive nature of such investigations, but the Chapter argues that the actions “may have an impact in the aggregate” alongside enforcement actions at the state and federal levels as well as civil suits.119 Moreover, the Chapter explains that local prosecutors are best positioned to pursue remedies that are responsive to the communities affected. Chapter I also discusses the possibility of imposing criminal liability on policy-makers for climate-related decisions, though the Chapter suggests that such charges may be appropriate only in “extreme cases.”120
Finally, Chapter I discusses how local prosecutors can wield their general authority in a climate-changed world. The Chapter argues that local prosecutors should resist relying on incarceration when it constrains the community resilience necessary to weather climate change and places prisoners at risk of climate-fueled disasters. Further, the Chapter discusses how local prosecutors can use their platforms for climate advocacy efforts, including by lobbying in favor of climate policies and participating in civic demonstrations on climate change.
Chapter II centers Indigenous perspectives on combating climate change. American Indian lands are among the most affected by climate change in the United States,121 and the Chapter argues that tribes can seek to hold state and federal governments accountable for their activities that lead to the environmental degradation of tribal lands protected under sovereign-to-sovereign treaties. The Chapter suggests that tribes may strengthen their claims by invoking an Indian canon of construction that requires courts to interpret treaties as Indigenous peoples would have at the time of signing.122
Chapter II explicates the origins of the Indian canons of construction and their use by the Supreme Court over time. Next, the Chapter illustrates how the canon that courts interpret treaties based on Indigenous understandings played critical roles in the long-running United States v. Washington123 litigation and recent Supreme Court treaty cases.124 The Chapter argues that the cases offer precedents for tribes to cite in climate change litigation, particularly for the principle that the government must affirmatively act to preserve hunting, fishing, and gathering rights articulated in treaties. The Chapter then reviews several ways that tribes have recently brought climate-related suits against state governments and the federal government. For instance, litigation has targeted environmental destruction from fires125 and the fossil fuel industry.126 The Chapter claims that these suits’ prospects for success can be improved by arguments that government activities harming species contradict tribes’ original understandings of their treaties’ hunting, fishing, and gathering rights, which they expected to endure in perpetuity.
Lastly, Chapter II addresses counterarguments. For instance, the Chapter argues that the canon requiring courts to rely on Indigenous understandings could prevent unfavorable interpretations of treaties that could be read to say that rights to resources expire when the resources do.127 In addition, the Chapter observes how tribes face challenges in bringing these suits in the absence of clear causation between government actions and the decline of a treaty-protected species. The Chapter also responds to assertions that the canon does not comply with textualist interpretations of treaty rights. Ultimately, Chapter II concludes that by bringing this climate change litigation, tribes can insist that courts recognize the importance of tribal sovereignty, treaty rights, and the inclusion of Indigenous voices in the courtroom.
Chapter III identifies recent efforts by state legislatures to preempt local zoning regulations, situates the efforts within the broader landscape of climate policymaking, and ultimately argues that states should undertake these measures as “intersectional” policy that addresses overlapping crises of climate change, housing unaffordability, and racial segregation. First, the Chapter reviews a history of zoning law in the United States. The Chapter explains that single-family zoning emerged in the early twentieth century as a tool for wealthy localities to insulate themselves from integration with people in poverty and people of color. The Chapter describes how single-family zoning subsequently proliferated and led to features that continue to characterize the American housing market, including urban sprawl, segregation, and unaffordability. The Chapter then synthesizes research on urban sprawl’s negative impacts on the climate. For instance, low population densities cause increases in vehicle use, energy use per household, and infrastructure construction.128
With this background, Chapter III reviews states’ recent legislative efforts to preempt local zoning power over land use. California and Oregon have passed the most robust measures, which fully preempt municipalities from prohibiting multifamily housing.129 Meanwhile, Connecticut, Nebraska, and Utah have passed narrower preemption laws that either bar localities from prohibiting multifamily housing in certain locations, permit self-contained units on the property of single-family homes, or require cities to develop plans for affordable housing.130 Support for these measures has been bipartisan.131 As a result, the Chapter argues that this type of climate policy — which simulta-neously addresses GHG emissions and housing affordability — is politically promising both for appealing to those who do not prioritize climate policy and for motivating those who hold climate policy as a top priority but have yet to prioritize affordable housing reform.
Lastly, Chapter III assesses whether states should pursue these preemptive zoning measures in light of arguments against stripping localities of their policymaking authority. The Chapter recognizes that, to those who prioritize climate policy, normalizing state preemption may be a slippery slope, as states have preempted localities from pursuing many environmentally friendly policies, like fracking bans and restrictions on the use of plastic bags. After engaging with counterarguments, the Chapter endorses a view that state preemption can be used sparingly based on principled considerations — for instance, when the measures are a “product of a credibly majoritarian lawmaking process”132 and when local governments impose externalities on other state residents while facing collective action difficulties.133 The Chapter argues that preemption of local zoning of land use meets the criteria.
Chapter IV analyzes a misalignment between the movement to decarbonize the U.S. energy grid and the historically conservative mandate of state public service commissions (PSCs) to keep electricity reliable and affordable. The Chapter explains that the nation’s reliance on fossil fuels for power has long contributed to climate change and that PSCs hold a great deal of power over a climate-friendly energy future. The burning of fossil fuels and industrial processes has accounted for three-quarters of GHG emissions increases since 1970,134 and in 2019, the burning of fossil fuels accounted for seventy-four percent of all U.S. GHG emissions.135 Most electric power is regulated by state agencies, PSCs.136 Every state has its own energy-regulating agency, resulting in 201 commissioners across the county,137 who decide when to build a power plant and which sources will power that plant.138
Chapter IV argues that PSCs have failed to adapt decisionmaking adequately to account for climate change. The agencies have long had a mandate to keep affordable rates.139 For decades, the quasi-judicial state agencies have made case law, staffing decisions, and internal procedures aimed at achieving this economic goal.140 Today, as the Chapter explains, stakeholders, the public, and state legislators are increasingly pressuring PSCs to consider the climate in their decisionmaking, but PSCs have generally resisted change.
Chapter IV reviews recent examples of state PSCs reacting to pressure to consider climate change when making decisions about the energy grid. Based on the survey, the Chapter suggests that state PSCs across the country are not taking adequate responsibility for climate impacts, sometimes even in spite of clear legislative mandates to consider the environment or climate. The Chapter proposes that, in order to modernize the energy grid, states must modernize their PSCs. In the short term, the Chapter argues that 100% clean energy mandates are effective and politically palatable policy tools to redirect state PSCs. In the long term, the Chapter suggests that all branches of state government should take steps to shift the institutional agency culture of PSCs toward modern climate goals.
Chapter V begins by returning to Glasgow, where this edition of Developments in the Law began, and the Chapter observes the lack of binding emissions targets set at COP26. Looking to an alternative to multilateral treaties, the Chapter explores carbon tariffs as a measure to address the problem of “carbon leakage,” the process by which carbon-intensive production relocates to a jurisdiction with more relaxed climate policies.141 Carbon leakage undercuts emissions-reductions policies while incentivizing jurisdictions to relax standards to gain a market advantage.142 Carbon tariffs seek to remediate the commons problem by imposing a cost on imports equal to the effective carbon price borne by domestic producers and by exempting imports from jurisdictions with comparable carbon pricing regulatory standards.143 The Chapter proceeds by surveying prominent models under consideration, including proposals being examined by the federal executive,144 Congress,145 and the European Union.146
Next, Chapter V assesses the legality of carbon tariffs under the World Trade Organization’s (WTO) rules of trade law. The Chapter summarizes competing views in trade law scholarship, argues that the legality of carbon tariffs under the WTO system is ambiguous, and notes that there is no timeline for a final disposition on the matter, as the WTO’s Appellate Body has lacked a quorum since 2019.147 With the WTO in a deadlock, the Chapter looks to core principles of international law and state responsibility to analyze whether carbon tariffs can be justified as a response to violations of a responsibility to respond to climate change. Ultimately, the Chapter argues that these doctrines do not provide a clear legal answer either.
Lastly, Chapter V considers the implications of the imminent arrival of carbon tariffs despite their ambiguous status under international law. The Chapter suggests that the effects could undermine the WTO system and exacerbate concerns about its structural integrity. At the same time, the Chapter suggests that carbon tariffs could advance the development of customary international law and help clarify the contours of a state responsibility to respond to climate change. Chapter V concludes by suggesting that policymakers should give serious consideration to the promise of carbon tariffs in overcoming carbon leakage, without looking past their uncertain status under international law.
Together, the Chapters in this edition of Developments in the Law represent a modern response to climate change by a multilevel government, as the world increasingly seeks solutions. The global response to climate change in upcoming decades will determine the degree to which “[f]reedom in a commons brings ruin to all.” 148 However, the latest IPCC report found that the goals of the Paris Agreement are still within reach, and the following Chapters catalog the sorts of developing efforts that will play a role in the years to come.