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The Legal and Administrative Risks of Climate Regulation

June 2021

Citation: 51 ELR 10485

Issue: 6

Author: Jonathan H. Adler

Prioritizing federal environmental regulation as the primary means of achieving dramatic, rapid reductions in greenhouse gas (GHG) emissions may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay; climate legislation can reduce legal risks and accelerate policy implementation, but only on the margin. Adopting regulatory controls will be immensely resource-intensive for the U.S. Environmental Protection Agency and other agencies. Even with authorizing legislation, regulatory strategies may remain more time-consuming, conflict-ridden, and legally vulnerable than fiscal measures. A carbon tax, in particular, would be more legally secure and administratively easier to implement than regulatory controls on energy use and GHG emissions.

Jonathan H. Adler is Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law.

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