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Chicago-Kent Law Review Volume 91 Issue 1 Congressional Dysfunction and Executive Article 7 Lawmaking During the Obama Administration

1-29-2016 The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective Hari M. Osofsky University of Minnesota Law School

Jacqueline Peel University of Melbourne, School of Law

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Recommended Citation Hari M. Osofsky & Jacqueline Peel, The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective, 91 Chi.-Kent L. Rev. 139 (2016). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol91/iss1/7

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected]. 37288-ckt_91-1 Sheet No. 77 Side A 12/28/2015 14:43:02 ** EEL P ACQUELINE J 139 AND * ) 12/10/2015 11:09 AM SOFSKY ELETE D OT OT N M. O O (D ARI INAL H F THEGRASS GREENER: NOT ALWAYS IS EEL P SOFSKY SOFSKY CONGRESSIONAL DYSFUNCTION, EXECUTIVE ACTION, 1 6O 1.Wilcox, Cathy http://cathywilcox.com.au/cartoons/.cartoon This is reproduced with AND CLIMATE CHANGE IN COMPARATIVE PERSPECTIVE * Professor, University of School; Minnesota Law Faculty Director, Energy Transition Lab; Director,Joint Program Degree ScienceLaw, in & Technology; Faculty Member, Conservation BiologyProgram; GraduateAdjunct Professor, Department Environment Geography, of and Society; and Fellow, Institute on the Environment. This Article has significantly been improved by feedback during presentations at theAnnual AALS 2015 Meeting, 2015 Associationfor PropertyLaw, & Society AnnualMeeting, 2015 Association American Geographers of Annual Meeting, Florida State UniversityCollege of University Law, of School, Denver Law University of Minnesota School, Law University and the WeTulsa College of of also appreciate Law. the suggestionsinsightful June Jessica of Carbone, Clarke, Claire Hill, Neha Jain, and Brett McDonnell. Batres, Maya Burman, Thomas Sarah Schenck, Nicholas Boyd-Caine, and Justin provided invaluableMoor research assistance. Library at The Law the University of Minnesota Law School, and particularly Suzanne Thorpe, was extremely helpful. This project has received support from grant fromthe Australian Research Council (Discovery Project 130100500, “Transition to Energy a Clean Future: the Role of Change Litigation Climate in Shaping our Regulatory Path,” (2013-2015)) and the University of Minnesota School’s Law summer research support.AsI always, gratefullove, am support, the for Josh, and patience of Oz, and Scarlet Gitelson. ** Professor, University of Melbourne, School of Australia; Law, Associate Director of the Centre for Resources,Energy and Environmental Melbourne Law, Law School. During 2015, Professor PeelisVisiting Woods a at Scholar Institute for Environment, the Stanford University. theWilcox. permission of Cathy 37288-ckt_91-1 Sheet No. 77 Side A 12/28/2015 14:43:02 A 12/28/2015 77 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 77 Side B 12/28/2015 14:43:02 , HANGE C [Vol 91:1 TATEMENT OF TATEMENT OF 2015 (2015), LIMATE ,S ,C CT OF , NPR (Oct. 12, 2013), UDGET A Facing legislative SOFSKY 4 .&B M. O GMT It’s EvenIt’s Worse Than It M ROTECTION (2015). ARI P &H NERGY E FFICE OF EEL P ,O ATEPAYER ATEPAYER NTRODUCTION This symboliconly has bill, however, LEANER ) 12/10/2015 11:09 AM I. I C 2 5 , political scientists ThomasE. and Mann Prime MinisterWould Obama: U.S. the Be Better Served RESIDENT ELETE ACQUELINE D P J . 447, 448–51 (2012). OT OT EV CHICAGO-KENT LAW REVIEW N O House Passes Obama’sto Bill Undermine Rules Climate (Aug. 18,(Aug. 2011), http://world.time.com/2011/08/18/prime-minister- ATHWAYS TO – H.R. 2042 R (D P IME .U.L.R See also INAL Would the U.S.Better Be Offwith a Parliament? F AL ,T (June 24, http://www.huffingtonpost.com/2015/06/24/house-climate-2015), OLICY FFICE OF THE For instance, in their book, P EEL P 6 OST .O , 46 V , 46 EGULATORY at 447. P On the other side of the efforts of aisle, numerous the passing On side at other XEC :R 3 SOFSKY SOFSKY Id. 140 6O Many observers,Many despairing this affairs, over of state wistfully The U.S. Congress is generally tooThegenerally politically is to U.S. Congress divided take 3. E 4. Hari Osofsky has analyzedbarriers the to federal legislationHari M. in Osofsky, 6. Ari Shapiro, 2. Kate Sheppard, 5. . UFFINGTON DMINISTRATIVE ITIGATION political value; if Senate, Obama the passed President it even would veto it. contemplate parliamentary systemsof government in other countriesdeveloped thatto in passing seem be more effective legislation. https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/saphr2042r_20150623. pdf Litigation’s Role in the Path of U.S. Federal Climate Change Regulation: Implications of AEP v. Connecticut obama-would-the-u-s-be-better-served-by-a-parliament/. http://www.npr.org/sections/itsallpolitics/2013/10/12/232270289/would-the-u-s-be-better-off- gridlock in Congress, President Obama has sought to pursue his gridlock his Obama pursue to has sought President Congress, in administration’s climate policy goals through action under executive existingfederal environmental action, statutes. often Such in interaction litigation, with the has become primary mechanism for national-level regulation from gasgreenhouse of motor emissions plants. and power vehicles comprehensive climatecomprehensive change in legislation—including one early firstPresidentObama’sfailed, term—have little exists and prospect for legislationforeseeable such in the future. L A significant supportingchangeregulation. action opposing climate or on Even the rare it when occasions unites on thisissue, it does not Looks: How the American ConstitutionaltheLooks: American System How Collided with the New Politics of Extremism delay_n_7658096.html. H do for that presidential 2015, June survive could In veto. way so in a example, the passed the House of Ratepayer Representatives aimedProtection at undermining Act, Obama the a law administration’s Clean Power proposed Plan to regulate plant power greenhouse gas emissions. with-a-parliament; Ishaan Tharoor, with a Parliament? 37288-ckt_91-1 Sheet No. 77 Side B 12/28/2015 14:43:02 B 12/28/2015 77 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 78 Side A 12/28/2015 14:43:02 141 , xiii OW THE OW THE CTION :H A XTREMISM OOKS E L 7 HAN IT HAN IT T XECUTIVE XECUTIVE E OLITICS OF OLITICS P ORSE W EW N VEN E S ’ T ,I YSFUNCTION AND RNSTEIN D ) 12/10/2015 11:09 AM OLLIDED WITH THE J. O C ELETE D OT OT ORMAN YSTEM YSTEM N S O CLIMATECHANGE IN PERSPECTIVE &N Thisthe divergent Australian raises experience (D 8 ANN INAL F ONGRESSIONAL Part III. Part E. M EEL P ONSTITUTIONAL U.S. C C HOMAS SOFSKY SOFSKY See infra II. 2016] 6O But parliamentary at are more effective democracies any This Part in the explores ways which partisanship, a paired with Parts II and III examine the respective experiences in the United in the experiences the respective IIIParts II examine and 8. 7. T MERICAN experience of congressional dysfunction and executive action ofexperience dysfunction executive congressional and regarding climate thatchange with of Australia, has a which government.parliamentary high have countries of system Both levels of partisanshipof on issues climateand energy, change but Australiaface of does not the level same gridlock legislative because the that party leads its of House Representatives selects its prime minister. climate Instead, Australia has seen change legislationgovernment repealed be controlthen as shifts pass and parties.between dealing with major policy issues such as climate change where deep deep as climate change where dealing major such issues with policy partisan exist? compare In divisions the this we U.S. essay, (2012). system of government based on separation of powers and checks and checks on separationgovernmentsystem of based of powers resultedand balances, in congressional has gridlock executive and assertions of authority on climate change. a brief It with begins ofoverview the U.S.systemgovernment, of then turns to a issue ofthe partisanshipdiscussion of climate intense the over A Normal J. Ornstein compare the of dysfunction the U.S. political system unfavorably with parliamentary democracies, it is where foreasier act. majoritiesto adversarial parties Vehemently the in a U.S. “are say, they governmentsystem, separation-of-powers formulafor willful irresolution.” obstruction and policy question of whether it is better gridlock to have or legislative uncertainty; is ideal. neither which of States Australia in attempting climate and make progress to on theactionThese two in a partisan compare Parts environment. countries’ government, they systems of thefunction how when public and political parties divided are deeply on policy questions, out the in played these in interactions which and the have way The essay decades. over two climatedevelopment the of past policy concludes with a reflection on the difficulties faced under both forward. for better possibilities considers systems way a and 37288-ckt_91-1 Sheet No. 78 Side A 12/28/2015 14:43:02 A 12/28/2015 78 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 78 Side B 12/28/2015 14:43:02 , [Vol 91:1 As discussed 9 Most significantly Most 11 12 al branch, and for provides a ) 12/10/2015 11:09 AM Because the presidentleads neither the 10 ELETE D OT OT CHICAGO-KENT LAW REVIEW N O (D How the Is Government Branches Organized, U.S. Government of A.Government U.S. Control Divided of INAL F . art. I, 8. § Section II.C. Section EEL P ONST at art. III;at art. at art. II. , https://www.usa.gov/branches-of-government#item-211477 (last visited Sept. 12, SOFSKY SOFSKY See infra Id. Id. Id. Id. OV 142 6O Interestingly, the given current gridlock, to separate the decision Article creates II,most however, the divergence significant The U.S. Constitution the establishes threefederal branches of Article ISenate Representatives the establishes of and House Article III creates the judici the Article III creates 9. U.S. C 12. 10. 11. executive and legislative and executive more authority infully the United States stemmedfearof in part a partisanship. of out For example, for executive branch action in the climate change context, as for branch in the action climateexecutive change context, as discussed in more in Section depth II.C, the the evaluate can courts branch agencies have scope of executive whether legislation and abused theirfailing acting discretion act. to in or morefollowing in the Part, this structure legislative significantly is not differentfromthat Australia’s of bicameral legislature. thebetween U.S. and Australianforms government. of It establishes branch led state-designatedpresident a an executive by by elected electors, and thus separates branch the the from head of executive congressional leadership. change, and concludes by analyzing how that partisanship has that analyzingpartisanship how has by concludes change,and federalgovernment. out in the played government and their relationship to one another. This Section in tracesthe ways which this structure greater creates separation a among the three in comparison branches parliamentary system. to Australia’s and designates their procedures, election powers, and limitations. Section significantly,this provides 8 of purposes forMost essay, the Congress with legislative authority under its powers. Supremecongressionalfederal to Court authority and create lower courts. Although it does not detailed provide ofexplanation the as viewed federal are roles, interpreting widely courts’ they and in theevaluating U.S. laws system. common law Senate nor the House, the executive’s role in advancingSenatethe executive’s legislation House, nor the farmore a parliamentary system.is limitedthan in 2015). USA.G 37288-ckt_91-1 Sheet No. 78 Side B 12/28/2015 14:43:02 B 12/28/2015 78 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 79 Side A 12/28/2015 14:43:02 : , , 143 OST COM . .P RCHIVES Energy Energy ASH Washington ISTORY &A 14 DEOLOGY ANDDEOLOGY 15 ,W I RT L.J. (forthcoming ,H A 2012 study ,A 16 MORY MORY ANCE OF ISTORY D , 65 E :H HE :T James Madison even Madison James Partisanship Doesn’t Seem Worse. It 13 MERICA A EPRESENTATIVES R Energy Partisanship OLARIZED provides significant analysis of the the of analysis significant provides This Day in History Apr. 05 Apr. History in Day This ) 12/10/2015 11:09 AM ., P , OUSE OF H ELETE D . (June 4, 2012), http://www.washingtonpost.com/blogs/the- OT OT N OL ,U.S. . 10,(James at 57–58 Madison) (J. A. 1787). McLean, & O O CLIMATECHANGE IN PERSPECTIVE ARTY ETARTY AL (D :P N C C INAL M OST (Jan. 8, 2014), http://www.washingtonpost.com/blogs/monkey- F .P (The PressMIT 2006)); Chris Cillizza, EEL , the past two decades have seen a worsening of decades have two the , past What WeKnowand Don’t Know About Our Polarized Politics P OLAN EDERALIST ASH AGE F at 57. at C B. Partisan Politics Climate States United in the Change ICHES HE ,W R SOFSKY SOFSKY Id. Id. Presidential Vetoes 2016] 6O This legislative towards tendency gridlock during times of The U.S. system of checks and balances among the branches The thechecksamong and balances branches system U.S. of Ifa faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. mayIt clog the administration, it convulsemay the society; but it will be unable to execute and mask its violence under the forms of the Constitution.When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest boththe public good and the rights of other citizens. 13. T 15. 14. 16. Jacqueline Peel& Hari M. Osofsky, ONKEY ONKEY NEQUAL political division has greatly influenced the U.S. trajectory on climate change. As exploredin more depth in our article Partisanship partisanship acrossboard the in the United States. http://www.history.com/this-day-in-history/washington-exercises-first-presidential-veto (last fix/post/partisanship-doesnt-seem-worse-it-is-worse/2012/06/04/gJQAJIuzDV_blog.html); 2016) (citing N constrains the ofactions three all limits branches, and their action substantially the countrywhen divided. is closely As has been the case under administrations, many latter during the half of the Obama administration, different a party has controlled the legislative U dangers “mischiefs of faction”for of theform republican a need and governmentof to them. address Federalist 10 No. Papers cage/wp/2014/01/08/what-we-know-and-dont-know-about-our-polarized-politics/. acknowledges possibilities forgridlock in a republican system, explaining: M http://history.house.gov/Institution/Presidential-Vetoes/Presidential-Vetoes/ (last visited July Is Worse. branch than branch, controls executive the and the party controlling the legislative branch lacksthe to super necessary pass majority authority.legislation presidential veto could overcome that 29, 2015). George Washington29, 2015).exercised George thefirst presidential veto in 1792. Exercises First PresidentialVeto Nolan McCarty, visitedSept. 2015). 13, 37288-ckt_91-1 Sheet No. 79 Side A 12/28/2015 14:43:02 A 12/28/2015 79 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 79 Side B 12/28/2015 14:43:02 . EV Energy Energy [Vol 91:1 .L.R ARV (Apr. 4, 2014), , 126 H 19 ALLUP 17 ,G 1, 17–18 (June 4, 2012), RESS &P . 12, 12–14 (2009). Professor of Communication EV 18 D EOPLE P , ORG . ) 12/24/2015 7:06 PM USTAINABLE S FOR THE However, this support markedly declined 21 ELETE . D 20 TR note 16. note . Y FOR Y OBELPRIZE ’ OT OT C CHICAGO-KENT LAW REVIEW N Communicating Climate Change: WhyFrames Matter for Public PresidentialCombat Against Climate Change OL ,N O (D supra .&P CI INAL F ESEARCH note 16. :S R T ’ EEL P NV EW supra ,E , ,P SOFSKY SOFSKY Partisan Polarization Surges in Bush, Years: Obama TrendsAmerican in Values 144 6O Againstthat though, backdrop, environmental and climate Superstorm Sandy a keywas turning point, and successive The of partisanship levels and climate over waxed change have Predictably, on climate change, poll analyses reveal politically polarized opinions,resulting in two Americas divided along ideological lines. Over the past decade, an increasingmajority of Republicans question the validity of climate science and dismiss the urgency of the problem, an while increasingmajority of Democrats accept climate science and express concern about the issue. This deep partisan division remains even after factoring in education and knowledge. In fact, the persistent gap in perceptions over the past decade suggests that climate change has joined a short list of issues such as gun control or taxes that define what it means to be a Republican or Democrat. 19. C. Matthew Nisbet, 18. Peel & Osofsky, 20. MassachusettsEnvtl. v. Prot.Agency, 549 U.S. 497 (2007); Frank Newport, 17. 21. Richard J. Lazarus, Engagement issues have been especially divisive. issues have polls since have shown risinggradually levels ofpublic concern over http://www.people-press.org/files/legacy-pdf/06-04-12%20Values%20Release.pdf; Studies Matthew Nisbet explains: NisbetStudies Matthew waned over be lessening time,may waned somewhat currently. Public and supportfor on climate comparatively high action in change was 2007,Intergovernmental in which year the the Climate Panel on and thePrize U.S.ChangeGore a Nobel Peace shared and Al Supreme the Court landmark decided climate change case, v. EPA Massachusetts http://www.gallup.com/poll/168236/americans-show-low-levels-concern-global-warming.aspx; AmericansShow Low Concern of Levels Warming on Global 1987-2012 by the Pew Research thefor Centerfor Pew by theand the Press, People foundexample, that the core although nation’s beliefs principles and remainedhave pretty the stable over these past beliefs 25 years, are along partisan increasingly being sorted lines. http://www.nobelprize.org/nobel_prizes/peace/laureates/2007/ (last visitedSept. 15, 2015). F. 152 (2013). Partisanship over theover that reaching years followed, 2012 thatnadir by such a Professor Richard declared: Lazarus “[c]limate change had become the political equivalent Harryof Potter’s Voldemort:the Lord crisis that not be named.” dared The 2007 Prize Nobel Peace 37288-ckt_91-1 Sheet No. 79 Side B 12/28/2015 14:43:02 B 12/28/2015 79 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 80 Side A 12/28/2015 14:43:02 : , 145 How IMES T 23 . (Jan. 15, Republican ,N.Y. TR , C (Apr. 8, 2013), (Jan. 29, 2015), (Apr. 9, 2013), ALLUP note 16. note ESEARCH IMES R ,G Lydia Saad Lydia For instance, a 2015 EW supra ; ALLUP P 22 , , N.Y. T , N.Y. ,G As thesection next explores, 25 For a discussion of the poll, see Coral Davenport & ) 12/24/2015 7:06 PM Id. note 23;note Peel& Osofsky, ELETE There are in how also partisan differences D supra note 16. note OT OT 24 N O CLIMATE CHANGE IN PERSPECTIVE (D supra -Stanford University-Resources for the Future poll (June 11,(June 2014), http://www.bloomberg.com/news/articles/2014-06- Americans by 1 Would to to Pay More Curb Climate 2 Change INAL F Most Republicans SayTheyBack Climate Action, Poll Finds EEL P EWS N SOFSKY SOFSKY Global Warming:What Be Should Done? Americans’ Concerns AboutWarming Global on the Rise 2016] 6O However, even with this trend, a divide still withHowever, trend, divide this even among a exists . (Jan. 30, 2015), http://www.nytimes.com/2015/01/31/us/politics/most-americans-support- 23. 22. Lisa Lerer, 24. Peel25. Osofsky, & Davenport & Connelly, OL LOOMBERG 2014), http://www.pewresearch.org/key-data-points/environment-energy-2/. these party divides have have inactiontranslated these divides in the into party congressional United States. 10/americans-by-2-to1-would-pay-more-to-curb-climate-change important the issue is to people and how concerned they are about about are they concerned and how people to important is the issue the cost measures to address of it. instance,in the For above- mentioned 2015 poll, sixty-three percent Democrats of that indicated global very warming or extremely important was to them personally forty-seven and Republicans, percent of to eighteen as compared percent of that Republicans worried measures to address climate harmchange economy. the would http://www.gallup.com/poll/161714/republican-skepticism-global-warming-eases.aspx;Saad, Lydia Americansand EnvironmentalTop View the Energy Issues Democrats, they and Independents Republicans, treat in how this issue. remain Republicans less likely to measures supportpolicy to and moreaddress climatechange forlikely to deny vote those who themselvesclimate as qualified or do not view change science to theevaluate science. B climate changeand willingness totake action address to it among Democrats,Independents. Republicans,and http://www.nytimes.com/interactive/2015/01/29/us/global-warming-poll.html. 48 percent of Republican respondentssaid that also more they were likelyvote to for a candidate who supports dealing climate with change. P New York Times found that seventy-eight percentof the U.S. public—including sixty percent Republicans—supportof “thefederalgovernment limit[ing] out.” put gasesthat U.S. businesses greenhouse the of amount http://www.gallup.com/poll/161645/americans-concerns-global-warming-rise.aspx; government-action-on-climate-change-poll- finds.html?emc=edit_na_20150130&nlid=52930963&_r=0. Marjorie Connelly, Skepticism Toward Warming Global Eases 37288-ckt_91-1 Sheet No. 80 Side A 12/28/2015 14:43:02 A 12/28/2015 80 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 80 Side B 12/28/2015 14:43:02 . EO but 26 [Vol 91:1 ,25G Now More Now More The Private . 1 (2003). EV . 237 (2011) [hereinafter L. R EV Congressional gridlock IDENER .L.R Diagonal FederalismDiagonal and Climate LA 27 28 , 10 W , 10 . 339 (1990); James R. May, ,62A Litigation’s Regulatory the Pathways and EV But major without legislation on 29 .L.R note 27. For the defeated legislation, see The UL ) 12/10/2015 11:09 AM supra , 65 T , ELETE D OT OT CHICAGO-KENT LAW REVIEW N O (D Dysfunction and Executive Action Dysfunction Executive and INAL F ]. . Hari207, 223 (2013); M. Osofsky, Part III. Part EV EEL P Hari M. OsofskyHari Jacqueline & Peel, .L.R C.Policy—A U.S. of Tale Climate Change Congressional SOFSKY SOFSKY See Diagonal Federalism See infra See NVTL 146 6O The U.S. approach to addressing the problem of climate problem change of the addressing The to approach U.S. As a consequence, the president branchAs a consequence, and executive E 28. 29. 26. Citizen suits involve lawsuits by private citizens tostatute. enforce a Such provisions 27. L ’ NT has constrained legislative both those efforts broad to undermine environmental those statutes aimed and at passing comprehensive climate change legislation. Even early in Presidentfirst Obama’s term, his party held both when houses of Congress, comprehensive climatefailed legislation change pass. to reflects the combination of structural barriers legislative to action and partisanship climate over in the two previous changediscussed sections.The States, United unlike Australia, broad has environmentalwith statutes significant suits citizen provisions, Than Ever: Trends in Environmental Citizen SuitsinTrendsThan Ever: Environmental Citizen at 30 Diagonal Federalism AmericanEnergy Clean and SecurityCong. Act of 2009, (2009). H.R. 111th 2454, agencies—in recent years galvanized or litigation—galvanized influenced by agencies—inrecent years shaped the U.S. deeply regulatoryhave regarding path climate This thecrucialchange. the U.S. role explores executive Section of branch and limitedof role legislative the in determining branch how climatethefailure to its United has responded change States since to ratify decades ago. two the Like Protocol Kyoto in Australia, control of the legislative and executive branches has shifted back forthand duringtime this period. very limitedvery federal directly addressing statutory law climate change. U.S.federalon focus climate laws change primarily data on collection and scientific research, some language with about coordination and international leadership. Change: Implicationsfor the Administration Obama are particularlyfieldcommon the of in environmental Michael S. law. See Greve, EnforcementEnvironmental of Law I climate change—only broaderclimate implications statutesfor change—only with climate AdministrativeState: from U.S. Lessons Australian and Climate Governance Change change reforming acts like various energy regulation and including financial for incentives branch renewables—executive direction and dominatedinitiatives have U.S. the approach. 37288-ckt_91-1 Sheet No. 80 Side B 12/28/2015 14:43:02 B 12/28/2015 80 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 81 Side A 12/28/2015 14:43:02 33 147 This This Diagonal Diagonal CIENTIFIC CIENTIFIC 34 The 1987 :AS 32 LIMATE C IOXIDE ANDIOXIDE D In with accordance that law, 31 ARBON to C ) 12/10/2015 11:09 AM ELETE D OT OT Foreword N O CLIMATECHANGE IN PERSPECTIVE (D INAL F The 1978 National ClimateThe 1978 National Program Act requiredthe note 27, 246. note at EEL 30 P vii, viii (1979). supra 1. The Death of Kyoto Ratification and Executive Ratification Kyoto of and The Death 1. Action , SOFSKY SOFSKY National Climate Program Act, Pub. L. No. 95-367, 92 Stat. (1978) (codified 601, 601 . 2016] 6O The limitedU.S. legislation predates on climate the change PresidentClinton’s executive action on climate far change was 31 33. GlobalAct, Protection Climate No. Pub. §§ L. 100-204, 101 Stat. 1101–06, 1331, 34. S. Res. Cong. 105th 98, (enacted). (1997) 30. Hari M. Osofsky has described this legislation depth her prior work. in in 32. Suomi, E. Verner SSESSMENT wait-and-see mean may waiting policy until late.”too it is Clinton administration and the death of Protocol Kyoto ratification in the Senate. more comprehensive regime have still failed. still regime more have comprehensive than theless extensive regulations beingpromulgated under gridlock paired the patternPresidentObama, congressional of but 1408 (1987) (codified U.S.C. at § amended 15 as 2901 (2006)). no reason to believe that these changes will be negligible...[a] negligible...[a] be will changes these that believe to reason no Global Climate Protection Act, Ronald passed when Reagan was president, included language about “coordinated policy” national and U.S. in international leadership climateto efforts change, address resolution it Clinton made that the clear despite administration’s otherthe desire ofmany developed-countryjoin major to emitters in Federalism A but specific without mandates those to goals. achieve Although this follow-upAct has been amended since, legislative efforts to create a with executive action similar. was President Clinton’s administration, Vice PresidentAl Gore, in the led by Kyoto participated actively Protocol negotiations,key shaping some attributes. of its However, at home, President Clintonfaced such difficultlegislative barriers for submitratification.thethat ProtocolThe did not even Kyoto he Senate passed unanimously a resolution stating that the United States Protocol the Kyoto ratify it should not did not because include developing-country majoremitters like and India. China as U.S.C. at amended 15 §§ (2006)). 2901–2908 president to a program establish to and the “assist the world Nation to understand to respond and natural and man-induced climate theirprocesses and implications.” President Carter a National commissioned Research report Council findings producedwhich indicating ofproblem the the seriousness and need to “[i]f act: continues tocarbon dioxide increase,the study tofindsgroupreason no doubt result that climate changes and will 37288-ckt_91-1 Sheet No. 81 Side A 12/28/2015 14:43:02 A 12/28/2015 81 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 81 Side B 12/28/2015 14:43:02 , HE ,T LIMATE C [Vol 91:1 ROGRESS P President LOBAL 36 ., RL 30692, G ERV 40 S ECORD OF ECORD Numerous introduced bills were ESEARCH 39 .R ) 12/10/2015 11:09 AM 38 ONG 35 ,C ELETE D 2 (2005). OT OT .: A R CHICAGO-KENT LAW REVIEW N O LETCHER DMIN (D A ROTOCOL R. F INAL The administration Clinton promulgated also energy P F Greenhouse Gas Regulation Emissions Greenhouse 37 EEL P USAN YOTO YOTO 2. “Unsigning”2.Protocol Refusing EPA Kyoto the and S Energy Independence and Security Act of Pub. L. 2007, 110-140, 121 Stat. No. K ORE HE SOFSKY SOFSKY Id. Id. See The Clinton Presidency:Protecting Our Environment and Public Health See -G :T . 148 6O Despite this defeat, Protocol the Kyoto administration Clinton President George W.President George broughtBush’s presidency a more . See 35 37. 38. 39 40. For examples of proposed legislation that died in committee in the Senate or House, 36. LINTON HANGE advanced many many initiativesadvanced togreenhouse address gas emissions. ofMany these focused efforts on spurring technological developmentTheyto reduce needed the included emissions. Climate industryTechnology Initiative with and partnerships Change such as the Partnership for Generation a New Vehicles (PNGV), of the Partnershipfor Technology Advancing in Housing(PATH), Wise,Energy Star,Future. ClimatetheIndustries and of 1492, 1499 (2007). seePrevention Carbon LeakageAct, H.R. 7146, Cong. 110th Climate (2008); Act MATTERS of 2008, H.R. 6316, 110th Cong. (2008); Climate Stewardship and EconomicSecurity Act of 2007, H.R. 4226, 110th Cong. (2007); Carbon Low Economy Actof 2007, S. 1766, 110th Cong. (2007); Clean Air PlanningAct ofS. 2007, 1177, (2007); Cong. 110th Safe Climate Act complex relationshipcomplex between the executive branch and climate change action. As during the Clinton administration, congressional limited. The 2007 Energy was climate change action on Independence and Security Act (EISA) arguably was the law with thefor during most climate Bush’s change significance passed presidency.for It included, standards example, stricterthat CAFE required automakers bringto fleet-wide gas mileage to thirty-five 2020. gallonmiles perby (mpg) Clinton secured more than $3 billion in annual funding—afifty percent increase—for research and development of clean energy technologies. C C makingbinding commitmentsto targets timetables, and Congress action. prevent such would during President Bush’s two terms to address climate change during climate President terms change address to Bush’s two directly, in committee. them but all of died http://clinton5.nara.gov/WH/Accomplishments/eightyears-08.html (last visited Oct. 2015). 30, efficiency standards aimed at reducing the average appliance’s the appliance’s reducing average at efficiency standards aimed thirtyenergy percent. use by 37288-ckt_91-1 Sheet No. 81 Side B 12/28/2015 14:43:02 B 12/28/2015 81 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 82 Side A 12/28/2015 14:43:02 149 41 43 Internationally, the Bush 42 32 (Tim Bonyhady & Christoff Peter eds., 2007). ) 12/10/2015 11:09 AM ELETE D USTRALIA OT OT A N O CLIMATECHANGE IN PERSPECTIVE (D AW IN INAL L F EEL P LIMATE President W.George Bush, Address at the National Oceanic and Atmospheric C The KyotoProtocol the Asia and Pacific Partnership Clean Development on and in SOFSKY SOFSKY Id. See , . 2016] 6O In he also committedtothat speech, “cutting our nation’s President Republicans the unlikeBush, outspoken some of [W]emust address the issue of global climate change.We must also act in a serious and responsible way, given the scientific uncertainties.While these uncertainties remain, we can begin now to address the human factors that contribute to climate change. Wise action now is an insurance policy against future risks. 41 42. 43. For discussion Asia-Pacific the of Partnership, Peter see Christoff& Robyn greenhouse much gas intensity—how emit perwe unit of economic through agreements with 10 years” next the 18% over activity—by key industries;for developing standards measuring and emissions providing companies that can show real measurable reductions with transferrable credits; promoting and renewable energy, clean coal production, and nuclear power. duringObama’s President administration the 2016 election, and a serious problem. climate changeacknowledged as human-caused Protocol he rejectedthewhich as an Kyoto speech in In same the “unsound international throw millions that treaty will of citizens our out of work,”he reaffirmed the U.S. commitmentto the United Nations on Climate Convention the Framework Change and reduce emissions,to stating: importance acting of of 2007, H.R. (2007); 1590, Cong. Warming Global 110th Reduction Act of S. 2007, 485, 110th Cong. (2007); Climate Stewardship Act of 2007, H.R. 620, 110th Cong. (2007); Electric UtilityWarmingTrade Act S. 317, 2007, Cong. of Cap and Global 110th (2007);Pollution Reduction Act, S. 309, 110th (2007); Cong. Climate Stewardship and Innovation Act 2007, of S. 280, 110th Cong. (2007);Warming Global Reduction Act of S. 2006, 4039, 109th Cong. (2006); Safe Climate Act of 2006, H.R. 5642, 109th Cong. (2006); Clean Air Planning Act of 2006, S. 2724, 109th Cong. (2006); Keep America CompetitiveWarming Global Policy Act of 2006, H.R. Apollo109th 5049, Cong. New (2006); Energy Act 2005, of H.R. 2828, 109th Cong. (2005); Climate StewardshipInnovation and Act of 2005, S.1151, 109th Cong. (2005); Climate Stewardship Act of 2005, S. 109th 342, Cong. (2005); Climate Stewardship Actof 2005, H.R. 759, 109th Cong. (2005); Climate Stewardship Act 2004, of H.R. 4067, 108th Cong. (2004);Stewardship ClimateS. 139, (2003). Cong. Act of 108th 2003, Ironically,the bottom-up approach of the Asia-Pacific Partnership is the model now being pursued in international negotiationsfor post-2020 a new, climate agreement. administration led the push foradministration an Asia-Pacific Partnership push on Clean led the Development and Climate included Australia)—a Change (which Administration 2001). 11, (June Eckersley, Climate bottom-up model of nationally-nominatedbottom-upmodel of emissions reduction targets designed that as an alternative was to the top-down targets theof Protocol. Kyoto and timetable approach 37288-ckt_91-1 Sheet No. 82 Side A 12/28/2015 14:43:02 A 12/28/2015 82 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 82 Side B 12/28/2015 14:43:02 47 45 (Dec. HANGE C [Vol 91:1 IMES within a T LIMATE ,N.Y. (Dec. 21, 2007), the EPA under 48 IMES ,N.Y.T Massachusetts v. EPA EPA v. Massachusetts note 5, at 19. note at 5, ) 12/10/2015 11:09 AM supra Although the Bush administration did not , ELETE Is Change “International”?: Climate Litigation’s Diagonal 46 D , in which thein which , Supremeruled that the Court L. 585 (2009). OT OT The executive branch’s refusal to take these branch’sthese take refusal toThe executive CHICAGO-KENT LAW REVIEW L ’ N O ITIGATION NT 44 L (D and Major New Executive Action Executive New and Major .J.I A INAL Arrogance and Warming F HANGE note 63. at 5, C EEL ,49V P supra LIMATE E.P.A. Says 17 States Can’t Set Greenhouse Gas Rules for Cars , SOFSKY SOFSKY 3. The Death of Comprehensive Climate Comprehensive ChangeThe of Legislation Death 3. 150 6O Although the patternof limited action congressional and However, despitecommitments, thesethe administration Bush 48. EndangermentContribute and and Cause Findings for Gases Greenhouse under 45. C 47.more For detailed discussion Obamathe administration’s of initialactionclimate on 44. Editorial, 46. Massachusetts v. Envtl. Prot.Agency, 549 U.S.C 497 (2007); ITIGATION week of taking office, even as his administration worked with legislatorsclimate trycomprehensive to to change pass legislation. substantial over branch of power the executive shape U.S. efforts on climate change under continued the Obama administration, the far greater. his administration’s scope of actions President was federal toObama steps through began taking regulate agencies under the Clean Airpursuantto Act Section 202(a) of the CleanAct; Air Final Rule, 74 Fed. (Dec. Reg. 66496 15, 2009) (to be codified at 40 C.F.R.I). ch. take significant action pursuant to that decision, as discussed in the takethe significant actionthat to in discussed pursuant decision, as following section, the case provided the basis for extensive regulationmotor of sources and major vehicles the stationary by Obama administration. 20, 2007), http://www.nytimes.com/2007/12/20/Washington/20epa.html. steps to gas regulate greenhouse emissions, continued and congressional inaction, helped spur a growth in climate change litigation, first which in the emerged United States in the 1990’s. change,see Hari M. Osofsky, Regulatory Role L Aftermaking an Endangerment Findingto necessary regulate pollutantsthe under Clean Air Act in 2009, One of these challenges led, in 2007, to the landmark decision in EPA v. Massachusetts Bush administration had abused its EPA discretionin in the way gas regulate emissions motorto it greenhouse which refusedvehicle under the Clean Air Act. http://www.nytimes.com/2007/12/21/ opinion/21fri1.html?& M.John Broder Felicity r=0; Barringer, repeatedly refused to regulate domestic greenhouse gas emissions gas emissions greenhouse repeatedly regulate refused domestic to under existing environmental laws, and prevented leader states from theirregulation movingwith ahead own greenhouse of gasmotor emissions. vehicles 37288-ckt_91-1 Sheet No. 82 Side B 12/28/2015 14:43:02 B 12/28/2015 82 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 83 Side A 12/28/2015 14:43:02 151 U.S. see also see also Under the [carbon dioxide] 2 49 Regulatory Initiatives, Inagenciesfinalized the 2010, 50 emissions and toemissions fuel improve and to economy overlap 2 ) 12/10/2015 11:09 AM Tothis all program date, has survived 52 ELETE D OT OT N , http://www.epa.gov/climatechange/EPAactivities/regulatory- O CLIMATECHANGE IN PERSPECTIVE (D id. GENCY INAL at 24,009further n.7. For discussionmeasurementcompliance of and F 53 Id. EEL .A P Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Press Release, U.S. Envtl. Prot. Agency, EPA Report: Data Automakers Show ROT They have since addressed post-2017 model years of light- of model years addressed post-2017 since They have SOFSKY SOFSKY See 51 2016] 6O Parallel tomotor its regulations, vehicles EPA has also been the .P .See 51 49. of For an overview themitigation EPA’s efforts, see 50. NoticeJoint UpcomingEstablish of Rulemaking to Vehicle Emissions GHG and 52. Notice (Oct. Intent, 62,739 of Reg. 2010) (to 75 Fed. 13, be codified at 49 C.F.R. pts. 53. NVTL a great degree.” under the program,see Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25,324 (May 7, 2010) (to be codified 40 C.F.R. at pts.85, and 600; 86, 49 C.F.R. pts. 531, 536 533, et al.); President Barack Obama, Remarks on National Fuel Efficiency Standards in the Rose Garden 19,(May 2009) (on file at http://www.whitehouse.gov/the_ press_ office/Remarks-by-the- President-on-national-fuel-efficiency-standards/). acting Air Clean the Act § 111 of under to from address emissions plants first EPA’s and otherpower stationary The sources. in step to establish 2010 was thresholdgreenhouse gas permit requirements, the aimedfocusingregulation on only its which at duty vehicles, duty medium heavy and vehicles, and harmonizingfederal and California standards. judicial challenges been on track and automakersfor have meeting the standards. President regulating Obama began from emissions motor vehicles plants). power (such as and major sources stationary initiatives.html (last3, Aug. updated 2015). CAFEStandards, 74 Fed. 22, Reg. (May 2009). 24,007 The EPA regulations focus on tailpipe emissions under the Clean Air Act, and the National Highway Traffic Safety Administration (NHTSA) regulations involve CAFE standards under the Energy Independence and Security Act and the Energy Policy Conservation Act. They are coordinated thefor first time this under program on thethat basis “[t]he close relationship emissions between of CO E 531, 533);Gas Emissions GreenhouseEfficiency StandardsFuel and Standardsfor Medium and Heavy-Dutycodified EnginesVehicles,74152 (Nov. be Reg. 2010) (to at 75 Fed. 30, and 49 C.F.R. pts. 523, 534, 535). For correction to proposed rules, see Greenhouse Gas EmissionsStandards Fuel Efficiency and Standardsfor Medium and Heavy-Duty Engines and “National Program,” EPA and Department the Transportation of promulgatedhave regulations joint regarding fuel and economy tailpipegasemissions. greenhouse theirfirst set light-duty of vehicles rules formodel 2012- years 2016. –most the prevalent gas greenhouse motor – emitted by vehicles fuelconsumption, and means that the technologies to control CO Vehicles, 75 Fed. Reg. 81952 (Dec. 29, 2010) (to be codified at 37 C.F.R. pt. 201); Press37 C.F.R. 201);codified pt. Vehicles, 29, be at Fed. 2010) (to 81952 (Dec. Reg. 75 Release, U.S. Envtl. Prot. Agency & U.S. Dep’t of Transp., EPA, DOT and California Align TimeframeProposing for Generation Standards Next for of Clean (Jan. 2011) (on file Cars 24, at http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/6f34c8d6f2 b11e5885257822006f60c0!OpenDocument). on Trackmeeting inStandards Gas Greenhouse 25, 2014) (on file (Apr. at http://yosemite.epa.gov/opa/admpress.nsf/0/A04E3F24D235D141852 57CC5004 F1907). 37288-ckt_91-1 Sheet No. 83 Side A 12/28/2015 14:43:02 A 12/28/2015 83 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 83 Side B 12/28/2015 14:43:02 Judges Judges .L.243 [Vol 91:1 (Apr. 16, DMIN IMES T .&A (Dec. 23, 2010), The EPA put NVTL (June 2, (on file 2014) 55 , N.Y. The plan aims to Thus far, federal .J.E 57 GENCY 59 ICH .A ROT ce, 3 M 3 ce, .P Keynote Remarks at the University of EPA ProposesGuidelines EPA Firstto Cut NVTL E Clean AirClean Act Permitting for Greenhouse Gas 58 and the Supreme Court partially Supremeand the has ,U.S. ) 12/10/2015 11:09 AM 60 ELETE D OT OT CHICAGO-KENT LAW REVIEW N O (D INAL F The proposed EPA a “CarbonPollution Standard”for EEL P 54 Murray EnergyMurray Corp., 788 F.3d (D.C. 330 Cir. 2015); Coral Davenport, StandardsPerformance Greenhouse of for Emissions Stationary Gas from New SOFSKY SOFSKY —which proposes—which “emission guidelines for states followto in Id. See In re In 56 152 6O These efforts have been extremely controversialThese andhave efforts 56. Carbon PollutionEmission Guidelinesfor Existing Stationary Source:Electric Utility 57. 58. Release, News Envtl. U.S. Prot. Agency, 59. Press Release, U.S. House of Representatives Energy & Commerce Comm., 54. PreventionSignificant of Deterioration and TitleV Greenhouse Tailoring Gas Rule, 55. 60. Sources: Electric Utility Generating Units,Fed. Reg.79 1430 (Jan.8, 2014) (to be codified at 40 C.F.R. pts. 60, 70, 71 and 98); Gina McCarthy, Michigan Environmental Law and Public Health Conferen developing plans to address greenhouse gas emissions from from gas emissionsgreenhouse developing plans to address existing fossil fuel-fired electric generating units.” (2014). Generating Units, PrepublicationVersion the of Final Rule, Reg. Fed. 79 67406 (Aug. 3, 2015) codified(to be at 40 C.F.R. [hereinafter Part 60) Plan]. Power Clean Carbon Pollution fromExisting Plants/Clean Power Plan Power is Flexible Proposal to Ensure a Healthier Environment,Spur Innovation and StrengthenEconomy the at http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/5bb6d2066 8b9a18485257ceb00490c98!OpenDocument). Whitfield Unveils Ratepayer Protection Act to Address EPA’s Overreaching Plant Power Rule (Mar. 23, 2015) (on file at http://energycommerce.house.gov/press-release/whitfield-unveils-ratepayer-protection-act-address-epa%E2%80%99s-overreaching-power-plant-rule). forward its “Clean Power Plan” in 2014—revised the over course of finalform in proposed feedback in and to response the in year next 2015 challenged through legislation, such as the Protection Ratepayer Act 75 Fed. Reg. 31,514 (June 3, 2010) (to be codified75 Fed. 31,514 (to Reg. 3, (June be 2010) 52, pts. 40 C.F.R. 51, 70 at Press al.); et Emissions - Final Sheet Rules, Fact most significant emitters that account for seventy percent of mostfor significant seventy that emitters account emissions. http://www.epa.gov/NSR/ghgdocs/20101223factsheet.pdf. reduce carbonfrom dioxide emissions sector 30 the by power from 2030. levelspercent by 2005 new power plants under Clean Air Act § 111(b) in 2013, which was controversialvery because coal-fired plants power only could meet it throughpartial carbon sequestration and storage. 2015), http://www.nytimes.com/2015/04/17/us/legal-battle-begins-over-obama-bid-to-curb- courts PowerClean the challenges Plan deemed have brought prior to finalthe rule premature, Release,Envtl. U.S. Prot. Agency,to EPA Set Modest Pace for Gas Greenhouse Standards (Dec.2010) (on file 23, at http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/d2f038e9d aed78de8525780200568bec!OpenDocument); mentioned in the introduction, and lawsuits. Skeptical Challenge of to ProposedE.P.A. Rule on Climate Change greenhouse-gases.html?_r=0. 37288-ckt_91-1 Sheet No. 83 Side B 12/28/2015 14:43:02 B 12/28/2015 83 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 84 Side A 12/28/2015 14:43:02 , , G 61 ’ 153 UBL Shelve Shelve ,E&EP have been West Virginia, No. John Funk, In re re In see also also see emergency petitionfor an 62 ,the eighteen states, District of 65 Massachusetts v. EPA v. Massachusetts note 16. ) 12/24/2015 7:06 PM ELETE supra D Legal Challenges – Overview and Documents OT OT N and fifteenfiled 26 cases by states and industry O CLIMATE CHANGE IN PERSPECTIVE (D 63 INAL F EEL Mirroring in otherdynamics the climate change cases, (Aug. 5, 6:41 PM), 2015, P Massachusetts v. EPA Massachusetts 64 COM . SOFSKY SOFSKY the States York, of New California (by and through Governor Edmund G. Brown Jr.,the California Air ResourcesBoard, and Attorney General Kamala D. Harris), Connecticut, Delaware, Hawaii, Illinois,Iowa, Maine, Maryland, Minnesotaand (by through the Minnesota PollutionControl Agency), Hampshire, New Mexico, New Oregon, Rhode Island,Washington,Vermont, the of Commonwealths Massachusetts and Virginia, District the of Columbia, the Cities of Boulder, Chicago, York,Philadelphia, New and South County, and Broward Miami, Florida 2016] 6O The mitigation above actions thatObama the administration has 65. intervenors The EPAthe behalf include: on of 64. For a summary of the casesto date, discussion potential of future challenges, and 63. Petition for Extraordinary Writ to the U.S. Envtl. Prot. Agency, 61. Util.Air Regulatory v. Envtl. Grp. Prot. Agency,S. 134 62. (2014). Ct. 2427, 2449 LetterfromElbert Lin,W.Va., SolicitorGen. of to Gina The McCarthy, Honorable LEVELAND http://www.eenews.net/assets/2015/08/14/document_ew_04.pdf. http://www.cleveland.com/business/index.ssf/2015/08/shelve_clean_power_plan_until.html. exploration of these issues,see extraordinary writ, attemptedto justify under Unopposed Motion for Leave to Intervene as Respondents,WestVirginia v. Envtl. Prot. Agency, 15-1363, No. at 1 (D.C. Cir. Nov. 2015), 4, http://www.ag.ny.gov/pdfs/2015-11-04- accompanied by significant,accompanied by far but less controversial, action on adaptation.Obama President Interagency an created Climate Changefirst Taskforce in office explore during to Adaptation year his how federal policies and programs prepare could for climate change directedbetter.federal “evaluate to He simultaneously agencies 15-1277 (D.C. Cir. Aug. 13, 2015), Adm’r, U.S.Envtl. Prot. Agency,EPA Docket EPA-HQ-OAR-20 No. 13-0602; Application for accepted partially and rejecteda challenge the to tailoring rule, limited has which for practical consequences whatis regulated. However, been brought already challenges to have finalthe Clean Plan,Power including request,stay a http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last visited Apr. 25, 2015). For a more detailed discussion these of lawsuits reactions other and to the Clean Power Plan, see Peel & Osofsky, Motion-to-Intervene-FILED.pdf. groups been consolidated that before have theD.C. Circuit Court of Appeals. Columbia, five cities, one and county intervened behalf on of the including Clean Power Plan Until CourtsRule, Ohio,West Virginia Other States 13 and Ask EPA C AdministrativeWest StayState by the of VirginiaStates 15 Other and (Aug 2015) (on file5, at http://www.ago.wv.gov/Documents/WV%20- %20Administrative%20Request%20for%20Stay%20CPP.PDF); EPA in those consolidated cases. consolidated EPA in those 37288-ckt_91-1 Sheet No. 84 Side A 12/28/2015 14:43:02 A 12/28/2015 84 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 84 Side B 12/28/2015 14:43:02 This This [Vol 91:1 70 (June, 25 2013), OUSE LOPS H -F 69 HITE LIP F ,W That order also established a In 2013, presidentthe both and EGISLATIVE EGISLATIVE 68 L note 5. 66 note 27. ) 12/10/2015 11:09 AM supra , supra ELETE , D OT OT CHICAGO-KENT LAW REVIEW N USTRALIAN USTRALIAN O ITIGATION L (D III. A 71 INAL F HANGE C EEL P Agency plans focus respect on adaptation with to 67 LIMATE SOFSKY SOFSKY Id. See Federalism Diagonal President Plan Obama’s Fight Climate to Change 154 6O Thefederal U.S. consistentgovernmentthus had a very has Australia is just as divided along partisan lines as the United 68. Exec. Order No. 13,653—Preparing the United States for the Impacts of Climate 69. 70. 71. C 66. Exec. Order No. 13,514—Federal Leadership in Environmental, Energy, and 67. federalreleased climate agencies The change adaptation plans. president’sremoving barriers Plan addressesto Climate Action action;fostering state, and tribal local efforts; building scientific capacity; and identifying vulnerabilities across different economic sectors. operations, programs,missions and President and Obama issued an additional executive ordera federaltaketo directing agencies ofvariety adaptation.on steps federal-level interagency Council on Climate Preparedness and a multi-levelResilience and State, TribalTask Leaders and Local, Climate PreparednessForce and Resilience. on structural approach to addressing climate change over the over past two structuralto climatechange addressing approach notdecades. had the Congress political has cohesion to address climate change directly, though some legislation, it has passed particularlywith on energy, implicationsfor change. climate http://www.whitehouse.gov/share/climate-action-plan. Change, Reg. 1, (Nov. 78 Fed. 66,819 2013). Economic Performance,Fed. 52,117 Reg. 2009). (Oct. 74 5, agencyclimate change-risks vulnerabilities and and to manage the effects on theof agency’s climate operations change and mission in both the short and long term.” lack of significant action legislative has made the branch executive particularly powerful in this sphere, often on executive based ago. the All three of authorityfrom decades passed broader statutes followed thispast pattern, presidential administrations have though political differences authority altered that has have how executive been used and litigation has accordingly tried to push or limit federal action. executive States itissues of climate to comes clean energy and when change. However, in Australia, a different government of has seen system divergent outcomes policy on these issues. Australia’s parliamentary 37288-ckt_91-1 Sheet No. 84 Side B 12/28/2015 14:43:02 B 12/28/2015 84 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 85 Side A 12/28/2015 14:43:02 , ., 155 USTL A USTRALIAN 2014 A 72 Members of the ? 2 (2014). ATION N 74 INOSAURS D LIMATE OF THE LIMATE See About the of House Representatives C ., C NST I ) 12/10/2015 11:09 AM USTRALIANS LIMATE A C ELETE RE D HE . The six six .states The in the of Commonwealth Australia are New :A OT OT ,T N O CLIMATECHANGE IN PERSPECTIVE (D HANGE C INAL F TEFANOVA S EEL P LIMATE The federalThe legislature as houses known consists two of A. Parliamentary Australia’s Government of System C pt. I §1. Members of the House of Representatives—theof the I of Members House §1. pt.“people’s house”—are 73 RISTINA SOFSKY SOFSKY Australian Constitution Id. 2016] 6O This Part the examines Australian parliamentary system of At firstAt glance, Australia’s systemgovernment of looks very 72. K 73. 74. ARLIAMENT OF TTITUDES ON judiciary. A systemgovernmentaligns offederal the legislature the with allowingexecutive, for the action partyby that wins the majority of the of house seats lower parliament.in Rather legislative than gridlock, the result has been flip-flopsdramatic on climate policy under different administrations. Over the lastdecades, two Australia has both and embraced opposed ofratification the Protocol, Kyoto and has both introduced removed and a price on carbon.This policy has seen inconsistency it fall from being hailed as an international climateclimate dinosaur. as a being derided leader to http://www.aph.gov.au/About_Parliament/House_of_Representatives/About_the_House_of_R government,functioning and its in theof context partisan climate politics, as a backdrop for the understanding extraordinary legislative shifts on climate taken change that have place under federalsuccessive governments.the Although differentof structure government the kind has avoided in Australia of congressional gridlock in the seen United States, a partisan environment has nonetheless in inconsistent resulted those in the policies. United For forStates pine greater the who legislative efficiencya of parliamentaryAustralia’s system, on climate experience policy tale. a cautionaryprovides the House of Representatives and the Senate. and Representatives of the House South Wales,South Victoria, South Queensland, Australia,Western Australia and Tasmania. There are also self-governing two mainland territories: the Northern Territorythe and Australian house”seventy-six has senators, twelve fromcountry’s of the each six states from and two each mainland oftwo theterritories. Senators serve for years a period six of are elected and based on a system of proportional representation. Capital Territory. P elected for three-year terms to represent their electorates, the boundaries of which are designatedto coverage ensure of roughly equal numbers of electors.Senate “states’ The or familiarfederalConstitution,The has a country U.S. to eyes. closely modeled on the U.S. divides between powers Constitution, which states, also separates power six and federal thegovernmentthe and atfederal the level the between legislature, and executive, 37288-ckt_91-1 Sheet No. 85 Side A 12/28/2015 14:43:02 A 12/28/2015 85 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 85 Side B 12/28/2015 14:43:02 , ., ., On On USTL USTL A A 81 [Vol 91:1 ATIONALS N ANDBOOK OF H OUNDATIONS IN HE in , :F note 77. or the Coalition ARLIAMENT OF ARLIAMENT OF 75 ,P ,P SSENTIALS See supra E ., https://www.liberal.org.au (last AW USTL A ,L About the Senate About the Senate Composition ARTY OF ARTY UPUCHE P D 78 The government, executive therefore, To become need legislation, to laws ) 12/10/2015 11:09 AM 80 77 IBERAL , http://www.alp.org.au (last visited Sept. 15, 2015). The ELETE D ADELEINE 91, 93 (Claude Ménard & Mary M. Shirley91, Mary eds., & 93 (Claude Ménard 2008). OT OT ARTY CHICAGO-KENT LAW REVIEW N P &M O Presidential VersusParliamentary Government (D ABOR INAL CONOMICS F .L ACKEN E M EEL (Thomas Reuters 2011). (Thomas Reuters P USTL The political party the that majority of wins seats the in A In recentother the years, Australian such as parties, AW L at 92. at 79 LAIRE 76 SOFSKY SOFSKY Id. See 156 6O While structuralmany shares this featuresthe system with NSTITUTIONAL I 79. John M. Carey, 80. 81. It is still possible in the Australian systemfor the Senate controlled to be by a 76. For the Liberal Party, see L 78. C 75. 77. There are presently Greens 10 Senatorsmember and one Greens the of lower EW USTRALIAN pass each house ofpass each house Australianthe Parliament. Legislation then “royalreceives assent”from the Government—nominally Head of exercisesthe in this her Queen who England, regard powers of through the Governor-General. United States,an important thereLike western is many difference. a governmentcountries, Australia’s operates as system of andparliamentary not democracy as a strict separation-of-powers system. different party from that of the government or for independentsenators and senators from other minor partiesmake to “balance up the of power” in the Senate. This iscurrent the situationthe in Australian Greens, Senate where minor independent party and Senators constitute 18 ofSenatemembers. the The Australian Labor Party has 25 Senators the and Coalition has 33. To secure a majority of votes in the Senate therewhere is a partisan (Labor/Coalition divide),the Coalition secureto government fromthe or has votes Greens other independentminor Senatesto legislation. party pass and effectively controls legislature, the house, lower and in the least at generally tois able pursue its legislative agenda efficiently. Labor Party has strongmovement. ties with union the visitedSept. for 2015), 15, the and National see Party, T of theLiberal Party the and National Party (both with conservative a focus). N epresentatives (last visited Sept. 14, 2015); http://www.aph.gov.au/Senators_and_Members/Senators/Senate_composition (last visited Sept. 2015). 16, A House of Representatives and Senate (collectively known as the the as known (collectively Senate and ofHouse Representatives Australianparty belong Parliament) groupings: two of to usually one theAustralian Labor (with Party a center-leftfocus) http://www.aph.gov.au/About_Parliament/Senate/About_the_Senate (last visited Sept. 14, 2015). House of Representatives is able to form government and nominate House of is able to Representatives its leader as Prime Minister. http://www.nationals.org.au (last visited Sept. 2015). 15, house. Independentsminor and partiesmake up a further 6 members of the Senate and 5 membersthe of of Representatives.House Greens, as well as independent members, have been elected to to elected been members, as independent have Greens, well as both of houses parliament. 37288-ckt_91-1 Sheet No. 85 Side B 12/28/2015 14:43:02 B 12/28/2015 85 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 86 Side A 12/28/2015 14:43:02 82 157 (Nov. UARDIAN ,G Katherine Murphy, 35, 35–36 (2015); Irene See also HANGE C LIMATE :C IRES , 6 W , 6 ) 12/10/2015 11:09 AM International Trends in Public Perceptions of Climate 73, 75–76 (2006). ELETE PublicViews on Climate Change: European and USA D pt. I §57. OT OT N HANGE O CLIMATECHANGE IN PERSPECTIVE 83 C (D While in the United people with States, compared B. Partisan Climate Politicsin Australia INAL 84 F LIMATIC EEL P Stuart Capstick et al., , 77 C , 77 SOFSKY SOFSKY Australian Constitution See 2016] 6O Australia’s parliamentary system, and the scope it allows for the Australians, like their U.S. counterparts, relatively exhibit low 83. arguably This was the case the with Clean Energy Act the following Abbott 82. 84. Tony Abbott Begins Carbon Tax: Dismantling Bill to Reduce‘Our Your Bills’ government’s election on win a platform the of carbon “axing tax.” executive to enactexecutive its agendafirst legislative seems efficiently, at blush to compare favorably with the gridlock legislative and inaction seen in theUnited States. However, although system this tends to legislation,promote passagethose of the gains legislative can be quickly reversed following elections that install a different party with gridlock,a majority house. in the Rather lower the than problem can inconsistencybecome as one of legislation policy changes radically successive administrations.course with This phenomenon of legislative flipflops is particularly likely the majorwhere parties have strongly differing, on particular views partisan policy issues, which influencefollowing public attitudes. prevailing the Section As explores, partisanship is a well-established feature Australian of climatejust United in the it is politics as States. levelsgreater of climate concern a threat about change as and a aboutambivalence climate of citizens change science than many other countries. Lorenzoni & Nick F. Pidgeon, Perspectives occasion, blockagethe legislation of of through actions or opposition minorparty down slow senatorsmay progress on particular legislative proposals. However, Constitution provides the mechanismsto break deadlock if there is ongoing opposition in the Representatives. Senate the to House of by legislation passed Often, there strong is also political pressurefor theupper to house government especially pass compromise, a legislation reach or to the governmentwhen has been elected with a “mandate” or to pass repeal certain laws. Australiansmore likely to that are is climate believe change happening (morethan eighty percent in agreement) and to see Change over the Past Century Quarter 12, 2013), http://www.theguardian.com/world/2013/nov/13/abbott-begins-dismantling-carbon- tax. tax. 37288-ckt_91-1 Sheet No. 86 Side A 12/28/2015 14:43:02 A 12/28/2015 86 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 86 Side B 12/28/2015 14:43:02 , a 91 See 88 most most NNUAL th A [Vol 91:1 OURTH this has not not has this ., F RG 85 (2014). It is likely that O Further tothe left 87 EPORT R ESEARCH .R . NTERIM , http://greens.org.au/policies/climate- out of 8 environmentalout 8 concerns. of :I NDUS th .&I REENS CI HANGE S C .G EVISTON ET AL newspaper innewspaper May 2015 that “global warming is the L USTL ) 12/10/2015 11:09 AM LIMATE ,A 86 C See ELETE concerns of the Australian public. In recent the Australianconcerns public. recent of In D OMMONWEALTH , http://www.alp.org.au/asustainableenvironment (lastvisited OT OT CHICAGO-KENT LAW REVIEW N ., C O The Australian Climate Change:Climate Moral The Great Challenge Our Generation of ARTY Although Abbott toned his anti-climate down (D TTITUDES TO P A note 85, at 85, Respondentsnote climate 5. ranked as change 14 the general 90 INAL F note 72. Despite general agreementthat climate change is happening, ABOR EEL 89 P .L EVISTON ET AL supra L USTRALIAN A , USTL (Aug. 6, 2007),(Aug. 6, https://www.youtube.com/watch?v=CqZvpRjGtGM. OE SOFSKY SOFSKY See id supra Climate Change and Energy 158 6O By contrast, PrimeBy former conservative Minister of and leader Political elites in Australia, justthe as in United States, exhibit UBE T 86. 90. Interview Kerry with O’Brien, The 7.30 Report, on ABC Television 2, (Feb. 2010). In 87. A 85. Z 89. Australian Labor, 88. 91. For instance, Chairformer Prime of the Minister’s BusinessAdvisory Council, OU URVEY OF URVEY TEFANOVA partisan divides are more apparent with conservative voters muchmore likely to see the causes climate of change as natural. translated into directly environmental rising concerns up the thehierarchy of Australianssurveys, consistentlyrank change in climate as lower importancegeneral than concerns,other including the economy and other environmental issues. the interview, Tony Abbott retreats from his previous statement meeting at a in October 2011 thatclimatechange “The argument is crap,” absolute characterizing this as “a little bitof the rulinggovernment CoalitionTony September 14, 2015, up until is argument change the “climate saying record as on is Abbott, absolute crap.” of theAustralian Labor Party, the Australian Greens describe human-induced climatechangegreatest as “thethreat to our world” requiring “urgent local, and sustained national and global action;” important concern general concerns, among 16 and 7 position similarformer to Prime Labor Rudd’s Minister Kevin declarationgreatchange that is “themoral climate challenge our of generation.” S human activity as a significant contributing cause, as a significant contributing human activity change-energy (last23, visited Sept. 2015). Y a greater occurrence of weather extreme events in Australia, including major floods,fires, droughts, cyclones,more and concern prompted has climate local about change effects. S much more starkly divided on views climate change than do the general public. The Australian Labor Party,for itself instance, sees foras “the the party environment” believes and “[h]uman-induced climate change is real and it is happening now.” Sept. 2015). 23, rhetorical hyperbole” which didmy representconsidered “not position.” Maurice Newman, in wrote rhetoric after Prime the becoming members of many Minister, Liberal and National Parties that make up the Coalition, and their on climatescience. skepticalto advisors, views continue hold 37288-ckt_91-1 Sheet No. 86 Side B 12/28/2015 14:43:02 B 12/28/2015 86 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 87 Side A 12/28/2015 14:43:02 , 159 See —is (June 92 ELLING OF EWS S N (May 8, 2015), Rural LiberalsPut , ABC (May 22,(May 2014), OST .P USTRALIAN HANGE AND THE C ASH , A ,W LIMATE How Australia’s Winking Abbott Tony ,C 93 OWARD H OHN L. J. 90–96 (2007). 90, ) 12/10/2015 11:09 AM Terrence McCoy, while at thewhile sub-national level the Labor :J 95 RY ELETE D D LANNING LANNING OT OT Tony AbbottTony Ousted from Power Australia’s as Prime Minister see also N O CLIMATECHANGE IN PERSPECTIVE The Role Change Litigation Climate of Australia’s in Response to .&P (Sept. 2015), 14, (D IGH AND Malcolm Turnbull: Three Things We Need to Know about Our New NVTL INAL ,H (2007). F UARDIAN EEL , 24 E , 24 This generated approach similar public and political P EARSE ,G P UTURE F (Sept. 14, 2015), http://www.cbsnews.com/news/tony-abbott-ousted-from-power- 2015), 14, (Sept. 94 S UY UY ’ SOFSKY SOFSKY EWS 2016] 6O Partisan climate over divides playedan important change have N 95. Jacqueline Peel, 92.April SinceAbbottthe 2014, government trailed the Labor opposition in the polls. 94. G 93. Lenore Taylor, USTRALIA Global Warming http://www.theguardian.com/australia-news/2015/sep/14/malcolm-turnbull-the-three-things- role in shaping policy, public attitudes, activism and the on issue in Australia. the As further, section next discusses the ten-year period Prime saw Ministergovernment John Howard conservative of of the the emergence similar of a very political stance on climate change to thethat U.S.from Bush administration, of onwards. particularly 2001 http://www.washingtonpost.com/news/morning-mix/wp/2014/05/22/how-australias-winking- tony-abbott-became-one-of-the-worlds-most-unpopular-prime-ministers/. A hook” designed institute order to world under the control “a new UN.”the of Maurice Newman, Even so, thereEven are significant differencesof onopinion climate thechange within ruling Coalition government.For instance, new PrimeMinisterSeptember Turnbull—installed2015 14, on Malcolm after thespill displaced leadership a Tony unpopular Abbott http://www.theaustralian.com.au/opinion/the-un-is-using-climate-change-as-a-tool-not-an- dissent Unitedthatthe tofocus States.The in seen a courts became for environmental many groupsfrustrated with the lackfederal of action on climatechange, 23, 2015), http://www.abc.net.au/news/2015-06-23/rural-liberals-put-climate-scepticism-on- regarded as a climate change has previously who moderate supported cost-effective, market-based forapproaches reducing Australia’s greenhouse gas emissions. we-need-to-know-about-the-challenger. The UN is Using Climate Change as a Tool Not an Issue agenda-at-party-summit/6568082. Daniel &Waldie, Munoz Ian CBS Like administration, government President Bush’s Howard the rejectedthe and resisted the Protocol Kyoto introduction of domestic mitigation lobbying measures, heavy from under the coal mining industry. as-australias-prime-minister/; World’stheBecame Most Unpopular One of Prime Ministers Prime Minister issue/story-e6frg6zo-1227343839905.month A later at the Party Liberal federalcouncil meeting in June 2015, a group of rural membersJune meeting group offor a motion the 2015,calling of in a party forward a put parliamentary inquiry to “examine the scientific evidence that underpinsman-made the global warming theory and investigate the reasonsforfailure the models, computer of the Intergovernmental Panel on Climate Change and prominent individuals to predict, among other things, the in pause warming global century.” this Eliza Borello, Climate Skepticism on Agenda Federal at CouncilMeeting in Melbourne 37288-ckt_91-1 Sheet No. 87 Side A 12/28/2015 14:43:02 A 12/28/2015 87 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 87 Side B 12/28/2015 14:43:02 , 96 ALLUP LIMATE ECOND (2011), When C [Vol 91:1 101 ,G LEXANDER LEXANDER ., S 99 RG EPORT O R Natalie Collins, Collins, Natalie ; TTITUDES TO A As in the United NTERIM ESEARCH Only 37% Australians of :I 98 .R HANGE NDUS 151–57 (2013). C USTRALIANS :A .&I However, over theHowever, over four next CI ONTEXT ONTEXT LIMATE S C C 97 ? (Crawford School&Econ. Austl. of Gov’t, ATION N LOBAL G Australians’ Views Shifton Climate Change ) 12/10/2015 11:09 AM AW IN TTITUDES TO OMMONWEALTH ELETE L A (2011), http://www.lowyinstitute.org/publications/2011-lowy- D LIMATE OF THE LIMATE OF OT OT ., C CHICAGO-KENT LAW REVIEW N 2007), O LIMATE ( ., C OLICY C (D P NST I USTRALIAN L ’ INAL A F NT I OLUTIONS EEL S P A strong correlation also emerged politicalbetween LIMATE EVISTON ET AL USTRALIAN L C FOR For instance, a Morgan telephone poll conducted in July 2011 (when legislationconducted telephoneFor instance, pollJuly a Morgan in 2011 (when to ., A . OE HE 100 URVEY OF URVEY SOFSKY SOFSKY Id. S NST I 160 6O Paralleling developments in thethe United 2007 year States, 97. T 96. For discussionstate of initiatives and the proposed inter-stateemissions trading 99. Australians support for tacklingclimatechange decreased over the period of the 98. Anita Pugliese& Linda Lyons, 101. 100. Z HANGE AND ITS NNUAL AHAR ET AL OWY was a particularly highwas for point and Australian public awareness concern regarding climate change. leader, Tony Abbott—fed into negative public attitudes the about forneed During climate action.this period, Australians many while continued that to real, believe climatechange was a declining result human of being a this change as number them of saw activity. (Aug. 6, 2010), http://www.gallup.com/poll/141782/australians-views-shift-climate- https://publications.csiro.au/rpr/download?pid=csiro:EP116224&dsid=DS2. establish a carbon price being was debated in the federal parliament) found 37 percent of respondentsfor asked their view of global warming believed “concerns are exaggerated,” and years, a general there was shift in the “down” Australian public’s attitude threat the towards climate change. of preference and belief in and attitudes towards climate change. and attitudespreference belief towards climate in and A Z C institute-poll. state governments of the day pursued proactive climate pursued proactive day and policies the stategovernments of worked an inter-state towards emissions trading scheme. Dissatisfaction government’sHoward the with to approach climate for need action the change belief public and an increasing in Laborthe at Party and the Rudd of contributed victory Kevin the to 2007 federal election. http://www.climateinstitute.org.au/verve/_resources/climatenation_2007.pdf States,failure the of domestic and international efforts to make apparently a contributingfactor.progress issue was on the domestic legislation on climate changeemerge did eventually under thegovernment Labor Primeled by MinisterJulia Gillard, partisan rhetoric then opposition on climate by change—particularly voiced change.aspx. Rudd government75% in from just a high in 2007 to of 2011. support 46% Fergus Hanson, The Lowy Institute Poll 2011: AustraliaWorld and the Public Opinion and Foreign Policy L scheme (which shelvedwas Kevinwhen Rudd was elected Prime Minister) see A What Do Australians Say About Climate Change Nat’l Univ.,PolicyDiscussion Governance & Paper No. 2009) 09-01, https://crawford.anu.edu.au/degrees/pogo/discussion_papers/PDP09-01.pdf. 58 per cent opposed the proposed carbon pricingmechanism. 37288-ckt_91-1 Sheet No. 87 Side B 12/28/2015 14:43:02 B 12/28/2015 87 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 88 Side A 12/28/2015 14:43:02 , , OY OY 161 ,R (2015), note 72 2015 Lowy 2015 Lowy supra OLICY OLICY , P L ’ NT I TEFANOVA S FOR (June 22, 2014), 104 See also . It that is possible the with NST I 103 note 102. Australians Coalition’s Unhappy over Response to OWY ) 12/10/2015 11:09 AM (Sept. 15, 2015), http://www.theage.com.au/federal- UARDIAN supra supra ,L , ELETE D ERALD OT OT H N This Section tells the story Australia’s of policy O CLIMATECHANGE IN PERSPECTIVE Oliver Millman, Millman, Oliver ,G (D The Ties That Blind:The Ties That Abbott Tony NeverUnifying it Cut a as National 105 (July 15, 2011), http://www.roymorgan.com/findings/finding-4686- How the Fields’How the Carbon Tax ‘Killing Became of Australian Politics INAL also recorded widespread public dissatisfaction public widespread with also recorded F ORNING M EEL See also P ]. Polls C. Australian ClimatePolicy – of Inconsistency Tale A ESEARCH (Sept. 6, 2013), http://www.theguardian.com/environment/2013/sep/06/election- YDNEY R 102 SOFSKY SOFSKY 2015 Lowy Institution Poll 2015 LowyInstitution Poll Rapidly Finds Shifting Attitudes Issues on Climate and ,S 2016] 6O Fluctuating public attitudes to climate coupled change with In theof wake Tony Abbott’s in victory the September 2013 103. 102. 104. Peter Hartcher, 105. James West, ORGAN UARDIAN skeptics within his own Coalition his own skeptics government within formore the of need emissions. stringentmeasures reduce to the federalthegovernment’s management climate of change, which mostrankedaverage.” as “below Leader http://www.theguardian.com/environment/2014/jun/22/australian-unhappy-coalitions-response- climate. partisan politics on the issue have made for a toxic policy mix in policy toxic for made a issue have partisan on the politics Australia. Indeed, one journalist evocatively labeled climate change the “killingfields” Australian has been the issue of politics because the political death of leaders—from several parties—over the both decades. last two installation ofmoderate, climate Turnbull, Malcolm as the new leader twenty-ninththe of country’s Liberal and the Prime party Minister, there will be greater government alignment between policy and public attitudes on climate a majorfor change. hurdle However, Primethe Minister new remains: hard-line convincing climate federal election, attitudes public climate on change appeared to again shift, increasing with criticism of government’s the policy record. 201302150110. Strong Views AboutSolar Support the Gillard Government’s Carbon Tax While Clear Majority (58%–up 5%) Do Not 5%) (58%–up Clear Majority While Carbon Tax Government’s Support Gillard the M http://www.lowyinstitute.org/news-and-media/press-releases/2015-lowy-institute-poll-finds- 2013-carbon-price-australian-politics. which found, for the first time, support greater for laws that put would a price on carbon than oppositionsuch to laws. twists and turns on climate change, from the Howard government’s thefrom Howard climate twists change, and turns on opposition to ratifying Protocol Kyoto the 2000’s, early in the to the efforts under the Labor Rudd and Gillard governments to price politics/political-opinion/the-ties-that-blind-abbott-never-cut-it-as-a-unifying-national-leader- rapidly-shifting-attitudes-climate-issues-and-strong-views-about [hereinafter Institution Poll Institution 20150914-gjmi4i.html#ixzz3lifsqqCG. G Climate Change 37288-ckt_91-1 Sheet No. 88 Side A 12/28/2015 14:43:02 A 12/28/2015 88 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 88 Side B 12/28/2015 14:43:02 ., 109 L. J. USTL HANGE LIMATE A C C [Vol 91:1 LANNING LIMATE C .&P NVTL ONVENTION ON ARLIAMENT OF ARLIAMENT C ,P , 16 E , 16 EVELOPMENT OF D RAMEWORK The government Howard HE HE :T albeit with the caveat that “the that caveat albeit the with 110 ,U.N.F 107 TORM S Thegovernment Labor the of day ) 12/10/2015 11:09 AM 106 ELETE D OT OT CHICAGO-KENT LAW REVIEW N 111 UNNING FROM THE O Perceived Costs Versus Benefits of Meeting Kyoto the for Target (D ,R note 94. note Respondingto Change: Climate ProvidingPolicy Framework a fora INAL , 24 U. N.S.W. L.J. 550, 550–55 (2001). 33 (2001). F supra EEL AMILTON , P H 108 . USTRALIA LIVE EARSE A SOFSKY SOFSKY P Australia & Greenhouse Parliament - A Chronology Status Ratification of the Convention of (May 2,(May 1992), 1. Australian Early Climate Mirroring Policy States the United 162 6O Duringthe Australian 1990’s, governments enthusiastic were These concerns about the potentialThese the about concerns economic impact of climate 111. 108. C 110. Vincent Cusack, 109. Nick Minchin, 107. 106. HANGE OLICY IN OLICY proponents of action on climate change. The country was one of the Theclimate was proponents country on change. action of firstto ratify the UNFCCC. subsequently announced an emissions reduction target of twenty reduction target announced an emissionssubsequently twenty of 1990 levels 2005, percent by below 53, 54 (1999) subsequently signedsubsequently Protocol Kyoto the in 1998. However, its close ties to the Bush administrationin the United States the saw Australiangovernment thefollow latter the rejected U.S. lead when the2001. Protocol in Government will not proceed with measures which have net adverse net adverse not have measures proceedGovernment with will which economic impacts or nationally on Australia’s trade competitiveness in the of absence similar major action by greenhouse gas producing countries.” changemeasures the underpinned of climate policy the Howard governmentconservative in that camepower to 1996. http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/ Publications_Archive/Background_Papers/bp9798/98bp04 (last visited Sept. 27, 2015). Competitive Australia Competitive Greenhouse Gas Emission Reduction:Australian The Perspective http://www.unfccc.int/essential_background/convention/status_of_ratification/items/2631.php. P C While Australia participated in the international negotiationsfor the Protocol,Kyoto focusgovernment’s the on securing was key text,treaty concessions in the includinggenerous target a 108 of 2012. percent by levels of 1990 carbon, and finally tocarbon, the and repeal legislationthe of price carbon under Prime Abbott’s led new government, by Coalitionis now which Minister, Turnbull.Malcolm illustrates, As the discussion a in partisan environment, legislative the efficiency of a parliamentary- inconsistency. policy the of price at government come can style 37288-ckt_91-1 Sheet No. 88 Side B 12/28/2015 14:43:02 B 12/28/2015 88 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 89 Side A 12/28/2015 14:43:02 , 163 Did Did Many YNTHESIS YNTHESIS 116 115 EPORT OF THE 2007: S ,R Energy Efficiency An Inconvenient An Inconvenient HANGE RADING C Australia was alsoAustralia was T 117 LIMATE MISSIONS ,C (Cth) (Austl.); (Austl.); (Cth) E (2006) 232 ALR 510 (Austl.).(2006) 232 HANGE C ROUP ON G note 5, at 105–06. note at 5, but it remained opposed strongly LIMATE C ASK ) 12/10/2015 11:09 AM decision sparked majorfederal action, T 7 (2007). Howard towent the 2007 election a with National Greenhouse and Energy Reporting Act 2007 112 supra , ELETE However,unlike in the United States, where These factors combined to make climate D ANEL ON RADING RADING OT OT P T 114 N 118 INISTERIAL ITIGATION O L CLIMATECHANGE IN PERSPECTIVE M (D (Cth) (Austl.); WildlifePreservation Society of Queensland Proserpine/Whitsunday INAL RIME F Section III.B. Section HANGE P MISSIONS This inaction climate on focus change a became of C E T EEL ’ P 113 OV 3145 (2014). LIMATE .G NTERGOVERNMENTAL C SOFSKY SOFSKY Renewable Energy (Electricity) Act 2000 See supra 2. Flip – Legislative Price Australian toRoad The Carbon an 30–31 (Abdelkader Allaliet al. eds., 2007). ROUP ON , as well as the, strengthening as well findings scientific climate of of LIMATE USTL 2016] 6O ThefederalAustralia election a in in 2007 coincided with high Ongovernment front, theHoward the enacted domestic some G Massachusetts v. EPA Massachusetts C A 115. 118. On the role of the climate change Millennium in Drought,Wenju Cai et see al., 114. Most notably, 113.changing Sensingclimate public attitudes, governmentthe in Howard 2007 112. 117. I 116. EPORT ASK Climate Change–Induced Rainfall Trends Contribute to the Australian Millennium Drought? 27 J. throughoutten-yearits term emissionsto reduction mandatory measures. impact laid out in the fourth assessment report of the fourththeimpact the report of in assessment laid out Intergovernmental Panel on Climate Change. Truth were influencedwere by in their Al Gore’s views film, promise that a national emissionstrading scheme be introduced would no later than 2012, but lost election. the BranchInc.v. Minister Environment and Heritage the for climatechange legislation, public oppositionactivism. and cases were Several brought before federalthe courts seeking to and politicalpublic greater bring attention to the issue. Opportunities Act 2006 (Cth) (Austl.). commissioned a taskforce which recommended the adoption of an emissions trading scheme. See R T change a salient issue in the 2007 election. Kevin Rudd and the Rudd and the in the 2007 election. Kevin change a salientissue Labor approach party, on climatechange, promisinga new were of majority in the with to a sizeable House swept power Representatives.first The act of government the to new ratify was the Protocol, Kyoto an announcementthat Prime saw Minister Rudd the Australia’s morefederal limited restricted environmental the laws forscope opposed to those the policies to government’s force judicial review. action through on climateexecutive change point Australian in public concern climate over change. in the midst of a devastating drought, which became known as the in the devastating midst of as the known became a drought, which Millennium Drought. 37288-ckt_91-1 Sheet No. 89 Side A 12/28/2015 14:43:02 A 12/28/2015 89 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 89 Side B 12/28/2015 14:43:02 , 122 Carbon [Vol 91:1 (Austl.); (Austl.); (Dec. 2007), 3, (Sept. 14, 2015), .au/national/shock- GE EWS ,A 121 Malcolm Turnbull DefeatsMalcolm Tony , ABC N http://www.smh.com (Austl.). The Greens’ rejection of the CPRS was ) 12/10/2015 11:09 AM (Dec. 1, 2009), 1, 2009), (Dec. 119 ELETE D See The and Emissions Greens Trading: Your Questions (Jan. 14, 2010), http://greensmps.org.au/content/news- ERALD OT OT H CHICAGO-KENT LAW REVIEW N The Copenhagen Climate Change Conference: A Post-Mortem O (D Shock Abbott ResultWins as Liberal Leadership by One Vote . . . REENS ORNING INAL F M .G EEL P FollowingSenate’s the second rejection of the CPRS L. (2010). 230 USTL L ’ YDNEY YDNEY NT 120 ,S ,A SOFSKY SOFSKY Bali Summitfor Applauds KyotoMove Rudd Carbon Pollution (Charges-General)Scheme Reduction Bill 2009 .J.I 164 6O This action by theThis opposition by action have party in the Senate would The Rudd government’smajority in the lowerhouse and M 119. 121. Phillip Coorey, 120. 122. Daniel Bodansky, legislation that on government in October the it 2009, was seemed to the law deal on amendments the a bipartisan of brink brokered with then leader of Opposition,the Malcolm Turnbull. However, partisan in the Coalition divides climate over change Turnbull’s saw leadership toppled With the conservative of Abbott. Tony in favor anti-climatefaction in control, the Coalition the down voted party CPRS legislationtimefor Senate. the third in a provided groundsprovided for the Rudd government to activate the Constitution’s to provisions the resolve legislative deadlock.In the meantime, the international however, climate summit at lastCopenhagen best December world’s the 2009—touted in as chance to on agree framework theto new Kyoto succeed a “mandate” actiontranslate takefederal on climate to change did not into climate change legislation as rapidly many as supporters hoped. Followingextensive an consultation and advisory process, the presentedgovernmentfor twice legislation a Carbon in 2009 Pollution Reduction Scheme (CPRS)—a of system emissions trading to applicable large corporate emitters—but encountered oppositionfrom in the Senate Coalitionand the senators Australian Greens. result-as-abbott-wins-liberal-leadership-by-one-vote—ets-dead-20091130-k1uz.html. Public support for and theclimate CPRS measures change receive a standing a receive ovation at the Bali UNFCCC Conference of the Parties 2007. December in stories/greens-and-emissions-trading-–-your-questions-answered#cantsupportCPRS. ETS Dead http://www.abc.net.au/news/2007-12-04/bali-summit-applauds-rudd-for-kyoto-move/976302. http://www.theage.com.au/federal-politics/political-news/malcolm-turnbull-defeats-tony-abbott- in-liberal-leadership-spill-to-become-prime-minister-20150914-gjmhiu.html. Protocol—failed dismally to deliver anything close to treaty. a new Ironically, defeatedTurnbull Malcolmnow Tony Abbott has to take over leadership of the Liberal Party and the Prime Ministership. Latika Bourke, Minister Prime Become Abbott toin Liberal Leadership Spill Pollution Reduction Scheme Bill 2] [No. 2009 based on their that view the scheme not did have sufficientlystringent targetsmade and too manyconcessions to industry. Answered 104 A 37288-ckt_91-1 Sheet No. 89 Side B 12/28/2015 14:43:02 B 12/28/2015 89 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 90 Side A 12/28/2015 14:43:02 165 126 (June 2015),(June Climate Change 475, 476 (2012). EWS HANGE C . (2014). 429 (Cth) (Austl.); ECH , ABC N LIMATE C However, elaborate this .&T CI 125 ATURE Clean EnergyClean (Consequential Amendments) .J.L.,S , 2 N INN ) 12/10/2015 11:09 AM ELETE , 15(1) M (Cth) (Austl.); D The carbon pricing legislation,known as the OT OT N 124 O CLIMATECHANGE IN PERSPECTIVE (D Clean Energy Regulator Act 2011 Australia’s Carbon Price INAL The Killing SeasonThe (3 episodes) F (Cth) (Austl.). The Australian Carbon Pricing Mechanism: Promise and Pitfalls on the EEL 123 P (Cth) (Austl.); SOFSKY SOFSKY Clean Energy Act 2011 2016] 6O Soon after,Julia Gillard called a general election that she One later,year in November Julia Gillard’s Prime Minister 2011, 126. Frank Jotzo, 123. For an excellent insight into dramatic these events in Australian political history, see 125. The design and early experience thewith carbon pricing mechanism is described in 124. legislativeregime quickly “enter[ed] has as one of history the best- designed shortest-livedfor yet policies mitigation.” climate change narrowly won over narrowly oppositionwon leaderTony Abbott. Climate policy had againfeatured the issue in election as an campaigngiven but decliningfor public support strongclimate measures, major both parties opposition expressed to introducing a “carbon tax.” In one now-infamousmedia interview, Julia Gillard promised that if elected government. under tax no carbon there be her Theelection would produced a hung parliament neithermajor having party a with majoritythe of of House in members Representatives. In order to formgovernment,Gillard with the Julia a deal reached Australian Greens and independents that included agreeing toGreens’ the climate of policy. revisitto issue the demands government,from support with the Australian in the Greens Senate, passed a legislativesuccessfully package to introduce a “carbon pricing mechanism.” Clean Energy Acttook 2011, 1,The effect 2012. on July mechanism established a fixed period carbon price, as the known commonly carbonthat settransitionfully-fledged tax, to to was a emissions 2015. July from trading scheme http://www.abc.net.au/news/programs/killing-season/. Sarah Ferguson, Authority Act 2011 Jacqueline Peel, PathwayEnergy a Clean Future to collapsed, and the Rudd government decided to shelve the to government shelve decided thecollapsed,Rudd and legislationfor trading an emissions Havingannounced scheme. climate change as “the great moral challenge of generation,”our this failurepolicy on the partofgovernment the Rudd dealt a major blow to the Prime credibility. Minister’s Facingdire public polling, the Labor Party tookthe extraordinary step Rudd to remove from the partyleadership replaceto and the him party deputy with leader, Julia Gillard. Act 2011 37288-ckt_91-1 Sheet No. 90 Side A 12/28/2015 14:43:02 A 12/28/2015 90 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 90 Side B 12/28/2015 14:43:02 , , , ., T ’ NV USTL E A [Vol 91:1 Though Though 129 T OF THE ’ EP D (Cth) (Austl.). (Cth) T ’ OV (Cth) (Austl.) (amending the .G USTL ,A 128 (Cth) (Austl.)). In place of carbon-pricing the This voluntary program allows 131 Clean Energy Finance Corporation (Abolition) Bill 132 it successfully delivered on its election ) 12/10/2015 11:09 AM Dismal pollingfor Gillard the government 130 ELETE D 127 OT OT CHICAGO-KENT LAW REVIEW N See Change Authority The Climate (Abolition)Bill 2013 ., O Repealing the Tax Carbon (D Tony Abbott’s NextPolicyVow: Anything But a ‘Great Big Tax’ New USTL INAL A note 105. note F 3. Flop – Legislative Tax Carbon the of Axing EEL P supra (Dec. 2, 2009), http://www.theaustralian.com.au/news/tony-abbotts-next-policy- SOFSKY SOFSKY See Act Initiative Farming Carbon Amendment 2014 See Energy Clean Legislation (Carbon TaxAct Repeal) 2014 ARLIAMENT OF 166 6O Far fromFar a climate triumph, policy Energy Clean the passage of Thegovernment’s Abbott “first orderfollowing of business” the ,P 132. 131. 127. Lenore Taylor, 130. In particular,Abbott the governmentfailed repeal to legislation establishing the 129. For detailssee 128. West, ARLIAMENT OF ARLIAMENT USTRALIAN Carbon Credits Initiative) (Carbon Farming Act 2011 opposition to the carbon tax was stirred by Tony Abbott (aided by Abbott stirred Tony (aided by by was tax carbon oppositionthe to the media), conservative portrayed thewho carbon as “a tax giant new tax on everything.” Emissions Reduction Fund. http://aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bID= r5288 (lastAug. visited 2015). 29, Act by theAct Gillard by governmentquickly became millstonea around the neckthe ofParty Laborand the Prime Minister in particular. DuringPrime governmentthe and the 2011-2012, Minister became unpopular in thethedeeply of electorate, “broken” in part because pre-election tax. promise to carbon not Community introduce a scheme, the Abbott governmentfor enacted legislation an election the repeal ofwas the carbon pricing legislation and dismantlingthe of supporting institutional infrastructure. http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_search_results/Result? bId=r5136 (last visited Aug.2015); 29, 2014 A in the lead-up to the September 2013 federal in thetheto resulted lead-up 2013 September election in an promise to the “axe carbon tax.” http://www.environment.gov.au/climate-change/repealing-carbon-tax (last visitedAug. 29, 2015). ClimateAuthority Change (which advisesthe government emissions reductiontargets) on and theEnergy Clean Finance Corporation (which providesfundingclean for energy projects and technology development). P vow-anything-but-a-great-big-new-tax/story-e6frg6n6-1225805927737. opposition in the Senate from independent senators and the Greens Abbottattemptsfrustratedgovernment’srepeal the to of some climate-related legislation, internal party vote in June to (old) reinstate Rudd as the new Kevin leader of theThis change party. the did not Rudd/Gillard save government, soundly defeatedwas which at the election that Primeinstalled Tony Abbott Minister. as 37288-ckt_91-1 Sheet No. 90 Side B 12/28/2015 14:43:02 B 12/28/2015 90 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 91 Side A 12/28/2015 14:43:02 , , 167 (July (July Ross Ross NSIDE NSIDE ,I UARDIAN ,G (July 14, 2014), However, even However, even with APERS P 133 137 CON ,E ImpactAustralia’sPrice of the on Carbon Given the short life the of carbon price ) 12/10/2015 11:09 AM Direct ActionDirect Subsidies: WrongWay, Go Back However, with the of repeal the carbon 135 ELETE D 134 OT OT N (Mar. 7, 2014), http://www.smh.com.au/federal-politics/political- note 121. note O note 93. CLIMATECHANGE IN PERSPECTIVE (D supra INAL At the time of his overthrow by Abbott,TurnbullAt of by time the his overthrow ERALD supra F H EEL (Apr. 26, 2015), http://theconversation.com/on-these-numbers-australias- 136 On These Numbers, Australia’s Emissions AuctionWon’t Get the Job Done P Coorey, Taylor, Taylor, ORNING SOFSKY SOFSKY Carbon Tax Repeal SparksJump in Australia’s ElectricityEmissions M See See (Mar. 17, 2014), http://insiderstory.org.au/direct-action-subsidies-wrong-way-go-back; 2016] 6O Evidence fromAustralia’s emissions annual data indicates that With the ousting offrom Abbottthe Prime Ministership by 135. 133. Paul Burke & Frank Jotzo, 137. 136. 134. O’Gorman Marianna Frank Jotzo, & ONVERSATION YDNEY TORY announced: not “I lead will a party that is not as committed to effective action I on climate change am.” as the carbon price had a measurablethe carbon had a effect on emissions, especially price from the sector. power 5, 2015), http://www.theguardian.com/environment/2015/jul/05/carbon-tax-repeal-sparks- http://EconPapers.repec.org/RePEc:een:ccepwp:1411. emissions-auction-wont-get-the-job-done-40761; Peter Hannam Johnathan& Swan, S businesses to bid for moniesto businesses to bid activities public undertake that will reduce emissions, that an approach roundly criticized has been by advocates economists climate policy as more and less costly and environmentally effective price. carbon a than news/ross-garnaut-slams-abbott-governments-direct-action-policy-as-like-a-martian-beauty- Peter Christoff, Christoff, Peter Malcolm Turnbull, the course of climate change policy in AustraliaMalcolm Turnbull, climate is of change policy course the again uncertain.Turnbull infamously supported CPRS Rudd’s legislationfor trading an emissions that scheme, a move led to his downfall as opposition leaderwith and replacement the more hard- line Abbott. and the political that uncertainty itsfrom it attended birth, Australian businesses generally did not major make clean energy infrastructure investmentsthe under Gillard governmentthatmight locked have in pricing carbon the the legislation. of effects public attitudesfavor shifting of stronger in measures, climate Prime his partisan, by Minister constrained Turnbull’s be may actions colleagues.conservative Already, Turnbull has indicated that he will theto Australian reduction target not emissions changes make announced in the2015 internationalthe lead-up to December pricing legislation, reductionsthese reversed been as coal have producersretreat energy plants production and renewable increase from the electricity market. C jump-in-australias-electricity-emissions. Garnaut SlamsAbbottGovernment’s Direct ActionPolicy Like a as Beauty‘Martian Contest’ S contest-20140306-34atj.html. Electricity Demand, Supply and Emissions 37288-ckt_91-1 Sheet No. 91 Side A 12/28/2015 14:43:02 A 12/28/2015 91 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 91 Side B 12/28/2015 14:43:02 141 [Vol 91:1 ARTISAN P (Sept. 14, 2015), 140 IMES ROGRESS IN ? thatthese of types partisan :P The thing only thatseems certain is 138 ) 12/24/2015 7:06 PM ,N.Y.T EFLECTIONS NVIRONMENTS (Aug. 11, 2015), https://theconversation.com/australias- R E ELETE D Australia’s Post-2020 Climate Target Not Enough to Stop 2C note 16. note OT OT CHICAGO-KENT LAW REVIEW N O (D supra Energy Partisanship Malcolm Turnbull Defeats Tony AbbottBecome to Party Leader and ONVERSATION INAL F ONCLUDING Part III. Part Part II. Part ,C C EEL In Australia, similar happen, shiftsthrough just in policy P IV. 139 SOFSKY SOFSKY See infra See infra 168 6O We in argue In the final analysis, the Australian example suggests that a less thatAustralianfinal a less In suggests example the the analysis, 138. Michelle Innis, 139. 140. 141. Osofsky, Peel & divisions generally progress: lead to strategies two achieve to “going thearound”strategies one side circumvents other and in which “goingtogether”ground. people findstrategies in which common Prime Minister of Australia gridlocked better produce not system legislative necessarily does results. Neither system is idealfor making progress in a partisan Whileenvironment. one can debatemerits the legislative of inaction inconsistency,versus both the gridlock U.S. congressional paired with executive assertionsof authority and Australianflip-flopping legislation are problematic. Partisanship makes systems in both progress on climate the and change, other contentious politically in thisissues explored symposium,In the vulnerable. States, United gains on climate under one administration policy could be significantly undermined if the other party thewins presidential election. Thus far,Thusfocused has this primarily essay on “going around” strategies one in which side gains controlmechanisms of of power, whether in the legislative or executive branch, and uses it to policy.greatadvance accomplishkinds These a strategiescan of deal quickly, are they long can result they around and if in enough, corporate lock-in that a and path dependency survive change may in political Thewinds. Obama administration’s branch action executive climate negotiations in Paris. that climate change will remainpolitical of an issue salience high in Australia, chance every thatfederal election—due with in next seeflipNovember another 2016—will legislative climate on change. post-2020-climate-target-not-enough-to-stop-2c-warming-experts-45879. http://www.nytimes.com/2015/09/15/world/asia/tony-abbott-liberal-party-australia.html?_r=0. the legislature rather than the executive branch.the legislature executive rather the than Warming: Experts On Australia’s post-2020 targets,which are amongst the lowest by any developed announced country, see Pep Canadell et al., 37288-ckt_91-1 Sheet No. 91 Side B 12/28/2015 14:43:02 B 12/28/2015 91 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 92 Side A 12/28/2015 14:43:02 169 But the the But 143 suggests that that suggests The Australian 144 142 . ) 12/24/2015 7:06 PM Australia’s Renewable Energy Renaissance MayBe Over ELETE D note 16 OT OT N . (July 16, 2015), http://reneweconomy.com.au/2015/australias- O CLIMATE CHANGE IN PERSPECTIVE supra (D CON E INAL F 145 Section III.B. Section Section II.C. , Giles Parkinson, Parkinson, , Giles EEL P ENEW ,R SOFSKY SOFSKY See, e.g. See infra See infra 2016] 6O Our research indicates on partisanship that both substantive None of these strategies is a panacea, though, and our analysis ourthough, analysis and is a panacea, theseNone of strategies 144. 142. 143. 145. We have explored these framings in depth, relying on extensive interviews case and in 5 Years government’s carbon pricing legislation represented a major step forward in its effortsto climate address change. the part“goinga crucial puzzle. together” of be also must strategies and structural reframingof the climate change issue can play a role. Substantive reframing, focused on economic especially when development or disaster bipartisan resilience, has produced serves mitigation adaptationcooperationgoals, and and also whether climateis mentioned change or not. Structural reframing, in contentious, forumsthat often less to the are which is shifted action pairs well this substantivewith reframing.We have found that toscalingfocusing local levels,more state down and and on directly financial for incentives the and can private action sector corporate opportunitiesprovide for cooperation. Such bipartisan collaboration has often been elusive in the contentious of environments both countries’federalgovernments despite potential its contributionsto progress.policy Thestructural and substantive reframingstrategies an importantthushave may role in these to countries’ play partisan environments. renewable-energy-renaissance-may-be-over-in-5-years-87926 (arguing that without longer- vulnerability of have can themeasures to these election which cycle, a chilling effect and corporate lock-in, on investment has puthas mitigation adaptation and measures into that place a gridlocked not Congress managed has to overturn. of political the vulnerabilityObama of administration’s the executive action is not intended as a critiquetheof President’s choosing to act in the context. Partisanship, and the constant media focus on focusmedia on thein the constant and context. Partisanship, conflict,meaningful difficult progress “going makes and around” strategies at necessary times.The Obama administration not would the its—often without gains climate achieved it change have has on controversial—executivevery action. are not As mothers who skepticalmaking of think progress climate on change science, we this urgent. problem is termsignals, policy the energy industry renewable will fall cliff). off a studies in Peel & Osofsky, & Peel in studies 37288-ckt_91-1 Sheet No. 92 Side A 12/28/2015 14:43:02 A 12/28/2015 92 Side Sheet No. 37288-ckt_91-1 37288-ckt_91-1 Sheet No. 92 Side B 12/28/2015 14:43:02 [Vol 91:1 ) 12/10/2015 11:09 AM ELETE D OT OT CHICAGO-KENT LAW REVIEW N O (D 146 INAL F EEL P SOFSKY SOFSKY Id. 170 6O Rather, the primary purpose of this essay isRather,this of purpose essay primary the that make to clear 146. congressional is not dysfunction of the the heart problem. Partisanship justa roleas poisonous in other plays of systems government, comparative analysis. as demonstrated this essay’s by democraticIn people any in which system and their representatives politicallyare likelydivided, deeply resort side will one going to progress. across the achieve phenomenon But this to around other importancefindingthe tosystems underscores tamp ways of down the conflict commonground.focusOur on and on partisanship work suggests that this is possible to greater a extent than of the tenor political dialogue in both countries suggests, at least and as crucial and legislative executive one actionto bold progress by making as party or coalition. 37288-ckt_91-1 Sheet No. 92 Side B 12/28/2015 14:43:02 B 12/28/2015 92 Side Sheet No. 37288-ckt_91-1