The changing climate for United States law
Just a few years ago, the subject of American climate change law would not merit an article like this one, let alone the book that the American Bar Association has recently published on the subject.1 But the United States has changed, at least somewhat. At the moment, most important United States climate change law consists of state and local law, but there are signs that the federal government may create significant climate change law as well, at least after President Bush leaves office.2 This article has two goals. The obvious one is simply to describe some of the American climate change law’s more important aspects. The second goal involves raising some questions about the dominant neoliberal approach to climate change in the United States, an approach that has heavily influenced the Kyoto Protocol and the law of countries implementing the Kyoto Protocol.3 I mean by this an approach that basically treats climate change as an economic problem, rather than as a legal problem of how to address an environmental crisis. Economics, of course, has something important to contribute to climate change law. But U.S. policy-makers have exhibited an unfortunate tendency to apply free market worship, rather than careful legal analysis informed by economics and other disciplines, to address climate change. I will only have space here to introduce these considerations briefly as I describe some key United States programs.