Ratifying Kyoto Via Local Actors: Accomplishments and Limitations of Local Cap-and-Trade Programs

August 2010
Citation:
40
ELR 10780
Issue
8
Author
Roger R. Martella and James W. Coleman

The authors of the current piece argue that "the Mayors Climate Protection Agreement illustrates that the notion of an exclusive, national authority to deal with issues deemed `foreign' cannot succeed." The argument is that while "rulemakers try to classify a set of problems as categorically national or local, the world in which they are operating belies the boundaries imposed." They see groups such as the U.S. Conference of Mayors and the National Governors' Association playing a natural role in addressing issues that, like climate change, have ramifications simultaneously at the local, national, and international levels. Noting that these groups operating in this capacity are technically translocal nongovernmental organizations of local government officials, the authors helpfully dub them TOGAs.

The authors convincingly argue that TOGAs are of increasing importance across the spectrum of political issues. But it is worth noting that more traditional organizations of local actors are already addressing the specific issue highlighted by the authors--global climate change--through regional greenhouse gas (GHG) cap-and-trade systems. These regional systems have sprung up across the United States and across the world. TOGAs, in turn, have the opportunity to play a critical role in bridging these distinct local efforts to address a fundamentally global challenge.

The authors also identify specific legal doctrines--such as federal preemption--as impediments to the efforts of TOGAs because these doctrines privilege uniform national laws over patchworks of local laws. Consistent with this theory, regional cap-and-trade systems are indeed imperfect because of their limited geographical scope, a challenge highlighted with climate change due to the lack of nexus between regulating GHG emissions at the local level and local impacts from climate change. But the pursuit of a comprehensive national GHG regime, even if it preempts local systems to some extent, does not by any means eliminate critical opportunities for local actors, coordinated by TOGAs, to play a key role in contributing to climate change solutions.

Roger Martella is a partner in the Environmental Practice Group at Sidley Austin LLP. He recently rejoined Sidley Austin after serving as the General Counsel of the U.S. Environmental Protection Agency, where he led the team responsible for developing the federal government's climate change legal framework in response to the landmark Supreme Court decision Massachusetts v. EPA. James Coleman is an associate at Sidley Austin LLP. His practice focuses on climate change, including climate legislation, climate tort suits, NEPA, state low carbon fuel standards, and EPA's full suite of GHG rulemakings.
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