Document Type
Article
Publication Title
KLRI Journal of Law and Legislation
Abstract
‘Cap-and-trade’ regulation is the regulatory 21st century tool used in environmental law and climate change regulation. It is a key mechanism employed under the U.S. Clean Air Act, integral to the Clean Development Mechanism of the Kyoto Protocol for greenhouse gas control, and the regulatory foundation of carbon control legislation in every U.S. state which regulates carbon. This modern ‘cap-and-trade’ mechanism for environmental regulation has been challenged in recent litigation in the U.S. The D.C. Circuit Court of Appeals in every one of five recent legal challenges has held EPA’s use of ‘cap-and-trade’ to be illegal. In only one case, the U.S. Supreme Court in 2014 reversed the Circuit Court. ‘Cap-and-trade’ regulation to mitigate climate change is now under similar challenge. Judicial review of the legality of regulation is established in various common law (including the U.S., England, Australia, Canada, India, Singapore, Pakistan, and South Africa) and civil law countries. In the U.S., a significant portion of the E.P.A. federal ‘cap-and-trade’ environmental regulation has been ruled illegal by the U.S. federal courts, as has some of the state of California’s ‘cap-and-trade’ regulation of carbon emissions and climate change. This article examines the administrative law, legislative enactments, and judicial interpretation of U.S. ‘cap-and-trade’ regulation and California’s carbon ‘cap-and-trade’ regulation as a viable legal mechanism. The lessons for legislative and administrative law apply to many world countries, and to carbon and global warming ‘cap-and-trade’ regulation is now moving forward in several countries toward a sustainable future.
First Page
77
Last Page
130
Publication Date
7-21-2014
Recommended Citation
Steven Ferrey, Court Limitations on 'Cap and Trade' Regulation: Administrative Law Decisions Applicable to the Mechanism of the Kyoto Protocol, E.U.-ETS, and U.S. Regulation, 4 KLRI J. of L. and Legis. 78 (2014).
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