Economic theory suggests that pollution tax and cap-and-trade regulations can be functionally equivalent. Environmentalists tend to prefer the firm emissions cap in cap-and-trade programs, while economists and business interests tend to prefer the price certainty of tax programs. But both may be overlooking behavioral distinctions between the two policies. Using a novel randomized case experiment, this Article tests whether the framing changes negotiated policies. It finds that negotiators reach more environmentally protective policies under the tax rather than the cap-and-trade frame, a finding which comports with real-world observations that carbon taxes tend to be higher than permit prices in carbon cap-and-trade programs. The findings have two important implications. First, negotiators treat pollution tax and cap-and-trade regulations differently—they are not psychologically equivalent. Second, contrary to the general environmentalist preference for cap and trade, taxes may generate greater environmental protection.

This Comment takes up two recent conflicting developments: the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency, which was designed to undercut present and future federal climate action, and Congress’ surprising countermove passing climate legislation in the form of the Inflation Reduction Act, which has dramatically accelerated development of the rule of law around climate change in the United States. It suggests that climate creep has taken hold, and that we have entered a new era in the development of climate law that not only limits the ability of the Court to obstruct legal progress, but also creates a firmer foundation for systemwide change.

On the final day of the 2021-2022 term, the U.S. Supreme Court released its decision in West Virginia v. Environmental Protection Agency. The majority (6-3) opinion limited the U.S. Environmental Protection Agency’s (EPA’s) authority to regulate greenhouse gas emissions from power plants under Clean Air Act §111(d), in part by invoking the “major questions doctrine.” The decision has implications for EPA’s authority both to regulate emissions from stationary sources and to regulate greenhouse gases more broadly. It also has implications for administrative law generally, including how the U.S. Congress may delegate regulatory authority to any federal agency. On July 12, 2022, the Environmental Law Institute hosted a panel of experts that considered questions raised by the justices’ opinions, and discussed what the decision will mean for environmental law, administrative law, and EPA’s power to act on climate change.