In the United States to date, most of the first genuine steps toward addressing the challenge of climate change have taken place at the state level.1 Many states have proceeded in a meaningful, comprehensive fashion while the federal government struggles to take its first significant step toward legislative or regulatory action. Yet it is clear that these state actions, even when taken together, are not enough to put the United States on a course to reduce greenhouse gas (GHG) emissions to the level deemed necessary by the science. Nationwide action requiring reductions in all 50 states will be necessary. Assuming the federal government will eventually put such a comprehensive program in place, however, a number of questions arise as to the appropriate division of responsibilities between state and federal governments across the many areas where climate change action is needed.
Given the relative historical competencies of state and federal governments, it is neither desirable nor likely that the federal government will step in comprehensively to eliminate any state role in tackling climate change. Indeed, some areas central to climate change policy, such as smart growth and land use planning, fall within the near-exclusive purview of state and local governments. At the other extreme are international climate change negotiations leading to international agreements, which is a matter for exclusive federal control. Most areas relevant to climate change policy, however, fall between these two extremes and have historically been shared by both state and federal governments.
Against the current and historical jurisdictional backdrop, the key question is not whether responsibility for climate change action should rest exclusively with the federal government or the states, but rather how the federal government and the states should share responsibility for tackling the problem. It is difficult to imagine the federal government stepping in to assume exclusive and broad authority over all activities in the United States that contribute to climate change. Because legal authority is already shared in many of these areas, the appropriate questions relate to the degree to which state and federal governments will continue to share responsibility. Will the path forward rely most heavily on the states to tackle the problem, with the federal government stepping in to make sure all states are acting with comparable vigor? Or will future climate change policy place the federal government in the dual role of both devising and implementing policy from Washington, D.C., perhaps with the states acting as local enforcers? Or will Congress devise an approach that places certain key responsibilities with federal agencies while vesting other key responsibilities with the states?
This paper aims to further a constructive dialogue on the appropriate roles for state and federal
government in meeting the challenge of climate change in the United States. Section II includes a brief
overview of the climate change actions taken by states, a review of the common issues that have arisen in the debate over state action, and a brief exposition of the relevant historical areas of federal and state authority. Section III summarizes the law of federal preemption to provide a basic understanding of the various way state policy can be affected by federal action. Section IV briefly explores the state and federal partnership established under the federal Clean Air Act for reducing air pollution, noting some key experiences with the Clean Air Act as it relates to the division of federal and state responsibility. Section V examines three possible approaches to comprehensive nationwide climate change action, taking into account the challenges and benefits associated with each option. Section VI sets out some key conclusions, questions, and principles for a continuing dialogue on these issues.