Why Localizing Climate Federalism Matters (Even) During a Biden Administration

20 Pages Posted: 21 Mar 2021

See all articles by Sarah Fox

Sarah Fox

Northern Illinois University - College of Law

Date Written: March 4, 2021

Abstract

After four years of a Trump Administration hostile to action on climate change, the United States is now under the leadership of the Biden Administration, which acknowledges the scope of the global climate crisis and has a number of proposals for addressing it. For now, the Democratic par-ty also controls both houses of Congress. All of that is good news for progress on climate change. It does not mean, however, that the federal government will be immediately poised to solve the climate challenge. First of all, the COVID-19 pandemic is likely to continue to occupy a tremendous share of federal resources for many months. And even with control of both houses of Congress, federal climate legislation (assuming it is forthcoming) will still take time to be written and introduced. The Biden Administration has been working quickly to reverse rollbacks of Trump-era federal climate regulations and guidance—but even such regulatory reversals may take up to several years. And the Administration will also need to work on restoring confidence and resources within the government agencies tasked with addressing climate change, making changes to national energy policy, and taking myriad other actions critical to climate progress. All of this takes time, resources, and political capital. Total reliance on federal executive action on climate has a number of other drawbacks as well, including vulnerability to reversal, likelihood of great political opposition, and uncertain responses by courts when many of these actions inevitably become the subject of litigation.

These same issues have plagued the U.S. federal climate response to date, even in administrations otherwise inclined to take action on the issue. Correspondingly, the past several decades have seen an increase in environmental initiatives by state and local governments that aim to fill in the gaps in climate mitigation and adaptation efforts. Those efforts have al-lowed sub-federal government actors to react to the impacts of climate change and to play a role in broader mitigation efforts. They are also likely to remain an important piece of climate engagement in the United States, as they may allow for some progress to be made in stemming harm from climate change, particularly where federal action is either absent or insufficient. Thus, climate federalism—meaning the allocation of responsibility for climate change policy among the federal, state, and local governments—is likely to remain important throughout the Biden Administration. The discussion herein focuses on the particular role that local governments may play in that process. While local actors may not be the level of government ideally suited to address all aspects of a global issue like climate change, they have potential to perform an important gap-filling function within the federal system.

This Essay disaggregates local environmental responses into four categories: land use-based adaptation actions; affirmative litigation and symbolic local action; local governments as proprietary actors; and local regulatory responses. Within those categories, it offers examples of the different kinds of local environmental actions and explains the relative strengths or weaknesses of local authority in each category. These analyses make clear that, in talking about local climate action, conversations should focus on where the local government is located (and, therefore, its political and legal setting), as well as what the local government is trying to do. At a very high level of generality, it is the rare local government that has the authority and ability to take any action it wishes to on climate change—but nearly all local governments have the authority and ability to do some-thing. Understanding the differences in types of local climate action can help make the extent of local authority clear and chart a viable path for continued local progress. The Essay concludes by offering suggestions for ways that the federal government might support local climate action, while emphasizing the continued importance of a more unified federal response.

Keywords: local government, sustainability, climate change, environmental law, environmental federalism

Suggested Citation

Fox, Sarah, Why Localizing Climate Federalism Matters (Even) During a Biden Administration (March 4, 2021). Texas Law Review Online, Vol. 99, No. 122, 2021, Available at SSRN: https://ssrn.com/abstract=3797728

Sarah Fox (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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