The Rise and Fall of Clean Air Act Climate Policy

Abstract

The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most ambitious federal climate policy in American history. Now, twelve years after Massachusetts was decided, that program is in ruins, largely repealed or weakened by the climate-skeptic Trump administration. Massachusetts has not provided a foundation for durable climate policy. The roots of the Clean Air Act’s climate policy failures lie not just in changes in political leadership, but also in a Supreme Court majority increasingly skeptical of not just climate regulation but of the administrative state in general. This and other barriers will persist regardless of who occupies the White House. This article explores why climate regulation under the Clean Air Act has been so much more fragile than other regulations under the statute, which actors bear responsibility for its failures, and what prospects remain for future federal climate policy.