This post is the fifth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
To expand a bit on some of what Bill Buzbee discussed in his excellent analysis of the Boxer-Kerry bill on CPRBlog, it is critical to ensure that the implementation of a new climate change regime is done in a way that is prompt and efficient, but also accountable. An effective bill needs to hold government and private actors accountable for their new climate change obligations and actions. Such accountability is key to ensuring that there is confidence in the new cap-and-trade market and that we actually obtain the greenhouse gas reductions we need. In particular, we should focus on the citizen enforcement provisions of the bill and the management of offsets.
The bill incorporates the Clean Air Act enforcement provisions, including its citizen suit provisions that allow citizens to sue government to force it enforce the law (sections 126-27). That’s good. But it would be even better if the bill had its own citizen suit provision, as Bill Buzbee notes. Further, the bill would be even stronger if it made an effort to clarify the uncertain law on standing -- whether and which citizens can bring claims to help avert climate change. As I wrote in my blog entry on Waxman-Markey, citizen enforcement suits are a critical supplement to government enforcement of the law’s violations against greenhouse gas dischargers and a means of holding government itself accountable for carrying out environmental programs properly. Citizen standing is a particularly challenging issue because of the widespread nature of the harm from global warming – it will be difficult to say that any individual citizen’s harm is “particularized” and distinctively different from the harm suffered by others. A clear congressional indication that citizens should be able to bring claims despite the widespread nature of the harm is likely to be helpful in the courts. The bill would be stronger if it added such language to a citizen suit provision.
Full textOn Friday, the Washington Times went A1 above-the-fold with "Climate bill could trigger lawsuit landslide."
Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers.Quite simply, this is a false alarm. One week before the Washington Times "Exclusive" on the citizen enforcement suit provisions in Waxman-Markey, I wrote here about the provisions. They are important, and good. And they're not exactly radical. Full text
"You could be spawning lawsuits at almost any place [climate-change modeling] computers place at harm's risk," said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.
By setting solid targets for reducing global warming in a cap-and-trade system and including a host of other helpful provisions, the Waxman-Markey bill is a terrific first contribution to this Congress's debate on climate change. A less obvious but still extremely positive aspect of the bill is its approach to citizen enforcement of the laws. In addition to government enforcement provisions, the bill includes strong citizen suit provisions. It reaffirms the importance of citizen enforcement of the environmental laws against both potential violators and agencies that have the responsibility to implement the regime. Citizens have traditionally had this enforcement power under the environmental laws, but it has recently been threatened by a series of judicial decisions. The Waxman-Markey bill responds to these judicial decisions and strives to ensure the vitality of citizen suits. Full text
Center for Progressive Reform Member Scholar Nina Mendelson reacts to the Supreme Court's decision in Wyeth vs. Levine. Full text
Guest Blogger: Liz Borkowski