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 Now, twelve years after Massachusetts was decided, that program is in ruins, largely repealed or weakened by the climate-skeptic Trump administration.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