On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. This Dialogue presents a transcript of that discussion, which has been edited for style, clarity, and space considerations.

At this point in time, climate change pervades every aspect of contemporary life. It is a persistent current through our lives and, increasingly, throughout the law. One would be hard-pressed to find any area of law that has not or will not soon be touched by climate change. The onset of climate change has prompted decades worth of deep and wide efforts to reshape law and policy. Yet, alongside this development, there is also erosion. This Comment takes up these two competing trends: the steady development of climate-related legal and political measures versus countermoves designed to undercut the emerging rule of law around climate change. It suggests that, despite the lack of climate-specific legislation, there is a growing body of law that advances efforts to limit climate change, and limits the ability of political actors (including the U.S. Supreme Court) to undercut legal progress.

The European Union, China, California, and a number of U.S. states in the Northeast are currently using emissions trading as part of their efforts to reduce greenhouse gas (GHG) emissions. However, the popularity of emissions trading as a policy tool co-exists with a well-established, and increasingly politically powerful, set of critiques of it in the United States. These critiques come from environmental justice advocates as well as some academics and other observers. This Comment ventures to propose an innovative application for trading—the development of a municipal trading program to help reduce GHG emissions from buildings, which account for the lion’s share of many cities’ GHG emissions—and lays out two forms of the proposed policy mechanism that cities could implement.