Climbing Mount Mitigation: A Proposal for Legislative Suspension of Climate Change "Mitigation Litigation"

Abstract

This Article has been in press for several months without opportunity for updating, and thus does not reflect EPA’s Clean Air Act rule promulgations and several other relevant events. Nevertheless, the basic thrust of the Article – that “mitigation litigation” is not leading to or supporting a coherent national climate change policy – remains current.

This Article explores the dysfunctional effects litigation designed to force agencies into regulating greenhouse gas emissions under existing laws – what I call “mitigation litigation” – is likely to have on agency policy development. Even disregarding the inherently poor attributes of litigation for making national policy in general – i.e., that it is not transparent, it limits public participation, it is piecemeal, it can lead to inconsistent results, it takes a long time to reach conclusion, etc. – mitigation litigation is an especially awful platform for developing national climate change policy.

Using the Endangered Species Act as a case study, in Part I of the Article I argue that, while it has pushed a few agencies into examining the role of existing authorities, mitigation litigation in the long run will lead to an uncoordinated and ineffective climate change policy. Existing legislation, if creatively applied within the bounds of permissible agency statutory interpretation, offers many opportunities for agencies to pursue mitigation and adaptation policies, but targeting agencies with this kind of mitigation litigation forces the federal government to build a mitigation policy through ad hoc, agency-by-agency litigation.

Part II of the Essay suggests a way out of this trap. I propose federal legislation that would suspend for two years all causes of action against agencies designed to force them to develop climate change policies under existing legislation. During this period agencies would be required to conduct coordinated statutory and policy studies, develop and finalize regulatory proposals, and suggest legislative amendments, after which any litigation about the final regulations would be channeled through a prescribed judicial review forum. Necessary interim agency decisions, such as preparation of environmental impact statements and issuance of permits, would to the maximum extent practicable and permitted by law be made contingent on the outcome of the rule promulgations. This process would allow agencies to get out from under the perverse mitigation litigation cloud while formulating climate change policy in a coordinated government-wide process.

As unlikely as it is that Congress would choose to offend the lawyers and interest groups pursuing mitigation litigation or to appear to be limiting public participation, this Article outlines what I believe is a sensible approach to suspending mitigation litigation while federal agencies are required to develop coordinated rulemakings for activating existing laws to contribute to climate change mitigation and adaptation.