FINISHING THE CLIMATE CHANGE PUZZLE: A PROPOSAL FOR THE UNITED STATES NATIONAL CLIMATE CHANGE LAW

American University of Hawaii From the SelectedWorks of Carolyn Aguilar June 15, 2010 FINISHING THE CLIMATE CHANGE PUZZLE: A PROPOSAL FOR THE UNITED STATES NATIONAL CLIMATE CHANGE LAW Carolyn Aguilar Available at: https://works.bepress.com/carolyn_aguilar/1/

TABLE OF CONTENTS I. INTRODUCTION... 1 II. BACKGROUND CURRENT STATE OF THE CLIMATE CHANGE PUZZLE PIECES... 4 A. The Global Climate Crisis and the Necessity For Multilevel Solutions... 5 B. Beyond Copenhagen and Kyoto The Status of an International Climate Change Agreement... 7 C. Subnational Efforts to Solving the Climate Change Puzzle... 9 D. The Status of A National Climate Change Law... 11 E. Key Elements to Making the Pieces of the Climate Change Puzzle Fit... 13 1. The Concept of Congressional-Executive Agreements... 14 2. The Potential Constitutional Problem of Preemption... 15 III. ANALYSIS WEIGHING THE NATIONAL PUZZLE PIECE OPTIONS... 17 A. Aligning A Fit With The International Climate Change Pieces... 17 1. Treaties... 17 2. Executive Agreements... 19 a. Sole-Executive Agreements... 19 b. Treaty-Executive Agreements... 21 c. Congressional-executive Agreements... 22 B. Aligning A Fit With The Subnational Climate Change Pieces... 24 1. The Pro Preemption Argument... 24 2. The Anti-Preemption Argument... 26 IV. PROPOSAL: FINISHING THE CLIMATE CHANGE PUZZLE... 28 A. Identifying the Crucial U.S. National Piece Among the Proposed Climate Change Bills in Congress... 28 1. The American Clean Energy and Security Act of 2009 ( Waxman-Markey )... 29 2. The Clean Energy Jobs and American Power Act of 2009 (CEJAPA... 31 3. The Kerry-Lieberman-Graham Proposal... 32 V. CONCLUSION... 33

April 26, 2010 Carolyn Aguilar FINISHING THE CLIMATE CHANGE PUZZLE: A PROPOSAL FOR THE UNITED STATES NATIONAL CLIMATE CHANGE LAW Now is the time to confront this challenge once and for all. Delay is no longer an option. Denial is no longer an acceptable response. The stakes are too high. The consequences, too serious. - President-Elect Barack Obama 1 I. INTRODUCTION The delay is over. At long last it looks like one of the missing pieces of the climate change solution puzzle a U.S. national climate change law may finally fall into place. 2 A U.S. national climate change law is the crucial piece to finishing the climate change puzzle. To fully combat the problems of climate change, all efforts international, national, and subnational -- are needed. 3 As the President has said the stakes are too high: 4 Changing coastlines 5 and massive flooding. 6 Wide-spread disease 7 and drought. 8 Human refugees in the millions. 9 Extinction of thousands of species. 10 These are real possibilities if nothing is done to stop global climate change. 11 Some global climate change effects, such as increasingly severe weather and changes in the biological cycles of plants and animals, are already occurring. 12 And, at least one island has already disappeared because of rising sea levels. 13 Climate change problems affect countries, regions, and cities differently, which is why multilevel solutions are needed. 14 For example, coastal areas may face coastal erosion and sea-level rise, whereas inland locations may face drought and wild fires. 15 Solutions involve not only reduction of greenhouse gas (GHG) emissions but also changes in life styles; and involve not only the international or national entities, but individuals and states as well. 16 Much like pieces of a puzzle, the varied solutions to climate change all need to fit together to solve the problem and no one piece by itself is enough. 17

Not many doubt the necessity of the international climate change piece. 18 Unfortunately, the world does not have an international agreement regarding necessary mitigation or adaption measures to address climate change. 19 But, the international climate change piece needs the U.S. domestic climate change piece to succeed. 20 The Kyoto Protocol, arguably the most aggressive international response toward reducing greenhouse gas (GHG) emissions, 21 and the closest thing to an international agreement on climate change, is set to expire in 2012. 22 As of April 2010, no binding international agreement to replace Kyoto has yet been reached. 23 Moreover, the U.S. is not a party to the Kyoto Protocol, which may perhaps be Kyoto s biggest failure because its reductions measures are not enforceable in the U.S, currently the second largest global polluter. 24 Additionally, the international community has no faith in America s commitment to climate change or in protecting the international environment, not least of which is because America failed to ratify several important international environmental agreements including the Kyoto Protocol and the United Nations Convention on the Law of the Sea. 25 A U.S. domestic climate change law will assist future international discussions by not only lending faith to the U.S. bargaining position through its actions at home, but also by actually reducing a substantial portion of global GHG emissions. 26 Thus, a domestic climate change law in the United States will help to secure a future, much-needed, enforceable international climate change agreement. In the absence of a U.S. domestic climate change law, subnational levels of government, cities, states, and regions, developed their own solutions to combat climate change problems. 27 Much like different countries, different states and cities face varying climate change problems. 28 California enacted the Global Warming Solution Act of 2006 and also developed strict motor vehicle emissions standards under the Clean Air Act. 29 Approximately twenty-three states have set GHG emission targets. 30 States and regions have also collaborated in creating regional 2

emissions goals and cap-and-trade systems. 31 Staggeringly, almost 1,000 cities have signed on to the Kyoto Protocol s emissions reductions goals as well, signaling their commitment to solving climate change issues. 32 These varied subnational solutions, however, may be endangered by a future U.S. domestic climate change law should Congress decide to preempt the field of climate change in the United States. 33 The preemption comes from the Supremacy Clause in the Constitution, where federal law shall be the supreme Law of the Land. 34 If there is a conflict between federal law and state or local law, the latter is deemed preempted. 35 Now, the time for delay is over 36 and the missing national piece is poised to fall into place. Congress has been active in pursuing a domestic climate change law and has proposed at least 150 bills as of April 24, 2010 dealing with climate change. 37 Currently, two of the bills stand out on addressing the forefront issues of the international climate change debate including emissions targets and foreign funding. The first bill, proposed by Senators John Kerry (D-Mass.) and Barbara Boxer (D-Cal.) in September of 2009, the Clean Energy Jobs and Production Act ("CEJAPA ), may stand the best chance of being passed by Congress, given its potential bipartisan nature. 38 The second bill, proposed by House Representatives Henry Waxman (D- CA) and Edward Markey (D-MA) in March of 2009 is the Americans for Clean Energy and Security Act ( Waxman-Markey ), which already passed in the House of Representatives, but whose prospects for passage in the Senate look slim. 39 A potential third bill, proposed by Senators John Kerry (D-Mass.), Lindsey Graham (R-S.C.), and Joe Lieberman (I-Conn.) ( KGL ) may also be a potential frontrunner of a national climate change bill. 40 With the national piece poised to be passed, Congress should ensure that it fits seamlessly with the other pieces to best finish the puzzle. A seamless climate law will provide for a flexible, but enforceable, international piece and also avoid preempting the subnational pieces. The 3

international agreement should be in the form of a congressional-executive agreement (CEA), which is a type of international agreement that is executed by the President, but which has the full support of Congress through implementing legislation. 41 A CEA is the most commonly signed type of international agreement today. 42 It could provide for both the enforcement of an international climate change agreement domestically, through the ex ante authority of Congress in enacting a new climate change law and also provide the necessary flexibility for quick ratification of an international climate change agreement as well by avoiding the more problematic treaty ratification process. 43 Additionally, a seamless fit will need to incorporate the already existing state and regional laws, therefore, Congress should also avoid preemption. 44 Part II of this paper will describe the background of the climate change issues and the current status of the international, national, and subnational pieces of the puzzle. Part III will analyze the potential options for a seamless domestic climate change law in the U.S., both its international component and the subnational component. Part IV proposes how the climate change solution puzzle could be finished by constructing a national climate change law that uses (1) the mechanism of a congressional-executive agreement and (2) avoids preemption to ensure a lasting and enforceable climate change solutions in the United States. Finally, part IV examines the current bills before Congress: Waxman-Markey, CEJAPA, and KGL to determine which might be the best fit for the national climate change piece to finish the climate change puzzle. II. BACKGROUND CURRENT STATE OF THE CLIMATE CHANGE PUZZLE PIECES This background section will first explain the nature of the climate change problems and the urgency of establishing a multilevel solution. Then, section B will discuss the status of an international climate change agreement. Section C explains the subnational efforts that arose in the vacuum of a U.S. national climate change law. Finally, the last sections discuss the current status of the domestic U.S. national climate change law, the congressional climate change bills in 4

Congress now, and concludes with an explanation of the key elements necessary to enact a U.S. national climate change law, so that it will seamlessly fit together with the international and subnational pieces of the puzzle. A. The Global Climate Crisis and the Necessity For Multilevel Solutions A first step to understanding the necessity of a multilevel solution is to understand the nature of the climate change problems. Climate change is already exerting a substantial and pervasive influence on the globe. 45 The current problems include severe storms, shrinking glaciers, melting permafrost, coastal erosion, and biological effects (changes in the timing of blooming of flora, species migration, and reproduction). 46 The potential climate change effects are even worse than the current ones. According to the Intergovernmental Panel on Climate Change s (IPCC) Fourth Assessment Report (AR4), if global temperatures rise just two degrees: many coral reefs will bleach, causing 50% of the world s subsistence and artisanal fisheries to be lost; forest ecosystems will lose biodiversity, which could cause whole forests to collapse; 20-30% of species will face an increased risk of extinction; and humans will face catastrophic problems of coastal flooding, increased vector-borne infectious diseases, and food scarcity. 47 The greenhouse effect explains the concept of global warming as caused by humans in that greenhouse gases (GHGs), primarily water vapor (H 2 O), carbon dioxide (CO 2 ), ozone (O 3 ), methane (CH 4 ), and nitrous oxide (N 2 O), increase in density in the Earth s atmosphere. 48 This increase causes infrared radiation from the Sun, which normally travels easily through these gases and back out to space, to become trapped in the atmosphere, raising the global temperature of the planet, like a greenhouse does for plants. 49 The accumulation of GHGs is caused by many different human activities including fossil fuel combustion, intensive agricultural practices, and deforestation. 50 Thus, the solutions to climate change necessarily include many different mitigation and adaptation pieces, including reduction of carbon emissions, development of 5

alternative energy sources, reforestation, alteration of agricultural practices, and creation of sea defenses. 51 These solutions, in turn, require different levels of governmental action. 52 Climate change is an individual, local, state, national, regional, and international problem. 53 As an extended example of how different levels of government are impacted, take the example of automobile emissions. 54 Emissions reductions might begin with an individual s choice on the fuel-efficiency of his automobile (a hybrid versus an electric car, for example). 55 The state or city may further impact that individual s decision with regulations regarding gasoline availability (ethanol, clean-diesel, or regular petrol) or availability of electric car outlets. 56 The national government could also affect that individual s decision through increased funding to automotive companies, potentially resulting in the availability of more fuel-efficient vehicles or in the overall regulation of automobile emissions. 57 Finally, international and regional agreements will affect this individual s choices as those agreements determine which vehicles can be imported or exported. 58 States, especially big states, like California are large emitters of GHGs and have their own stakes in wanting to reduce GHG emissions. 59 Because the effects are so pervasive in society, an effective solution to the climate change puzzle necessitates an aligned multilevel-governmental response: subnational, national, and international. 60 Currently, some subnational U.S. laws are in place fighting GHG emissions. 61 But, the international 62 and U.S. national pieces are missing. These pieces are crucial to finishing the climate change solution puzzle. 63 Climate change is controversial, which makes creating the international and national pieces difficult. 64 Although most have accepted the IPCC s conclusions, many climate change naysayers still doubt the science and reality of climate change. 65 These naysayers believe that because of the heavy winter storms and snowfall in the Eastern United States during the 2009-6

2010 winter global warming is a myth. 66 But, as many scientists agree, some snow in Washington does not mean the rest of the earth is similarly cool. 67 The severity of the storms, however, actually indicates climate change problems. 68 Climate experts also note that under normal weather conditions, it is often too cold to snow. 69 But, with global warming, the combination of more moisture in the atmosphere and higher temperatures has actually created heavier snow falls. 70 The science of climate change is no myth; humans are warming the climate through greenhouse gas (GHG) pollution. 71 This controversy makes finding solutions even harder. It is therefore important for the national climate change law to be flexible enough to support an international climate change agreement and embrace existing subnational laws to accommodate the varying views on climate change. B. Beyond Copenhagen and Kyoto The Status of an International Climate Change Agreement After the failure of the international community to reach an international climate change agreement at the fifteenth session of the Conference of the Parties held in Copenhagen, December 2009 (COP 15 or Copenhagen Convention) and even though the Kyoto Protocol is set to expire in 2012, a future international climate change agreement remains unlikely to occur in 2010. 72 The future success of an international climate change agreement depends in large part on the participation of the United States. 73 The international climate change debate is contentious, as many countries will face differing effects from climate change. 74 Climate change problems affect almost every aspect of life energy, transportation, agriculture, and the sovereignty over natural resources. 75 The African continent will likely see greater droughts. 76 The Asian continent will likely see increased flooding. 77 Small islands will likely see extreme coastal erosion. 78 In fact, an island in the Bay of Bengal has already disappeared due to sea-level rise, with potentially more islands to 7

suffer the same fate in the coming decade. 79 Decisions with regard to mitigation or adaptation, therefore, force nations to make difficult choices in matters of economic and industrial policy, which will be different for each country. 80 Nations, including the United States, have been reluctant to endorse an international agreement on climate change because of the effect solutions may have on economic growth. 81 Additionally, the United States wants to ensure that all countries are mitigating emissions, including developing countries. 82 In fact, this is a major reason why the U.S. did not sign the Kyoto Protocol. 83 Developed nations, like the U.S., believe that developing nations, like China and India, need to cut emissions, as those countries will likely emit the majority of future emissions and that any international agreement that exempts them from action, like the Kyoto Protocol did, would not be acceptable. 84 Many developing nations, on the other hand, believe that the problems of climate change were caused by developed nations, and so therefore, those nations should bear the costs through emissions cuts only for developed nations. 85 This complex geopolitical variety of opinions requires a somewhat flexible bargaining position for international climate change agreement negotiations, 86 which is why Congressional input in a U.S. domestic law with an eye toward international negotiations is key to finishing the climate change puzzle. Despite the differences of opinion, however, the international community is actively trying to reach agreement regarding climate change. In December 2009, at the Copenhagen Convention, 192 countries met in hopes of reaching an international agreement to replace the Kyoto Protocol that would mitigate or adapt to climate change problems. 87 Though the goal of reaching a binding agreement was not achieved, the Copenhagen Convention did result in Decision 2/CP.15, also known as the Copenhagen Accord where 75 parties submitted pledges to cut or reduce GHG emissions by 2020, representing 80% of the world s global emissions. 88 8

As a party to the Copenhagen Accord, the United States agreed to emissions reductions of 17% of 2005 levels by 2020, depending on the enactment of climate change legislation by Congress. 89 The major issues raised in Copenhagen are now at the forefront of international debate, including emissions reductions standards for greenhouse gases (GHGs), the establishment of an international fund to assist developing countries with adaptation and mitigation, and transparency guidelines regarding enforcement. 90 These issues are still highly contentious and still need resolution in order for international climate change talks to proceed. 91 But, with emissions targets pledged in the Copenhagen Accord and at least a thirty billion U.S. dollars pledged toward an international climate change fund, future negotiation details can proceed from there. 92 The road ahead for reaching an international climate change agreement will be difficult, but the Copenhagen Accord was a good start at opening up international discussions and will assist with future international climate change discussions. 93 In order to move international climate change talks forward, Congress must enact a domestic climate change law setting emissions targets for the U.S. and providing for an international climate change fund, addressing the two major international climate change issues being debated. 94 If the U.S. Congress passes a climate change law that includes emissions targets at least as great as pledged in the Copenhagen Accord, it will also bolster the U.S. reputation abroad to further discussions in achieving an international climate change agreement. 95 C. Subnational Efforts to Solving the Climate Change Puzzle In the absence of a U.S. domestic climate change law, states, cities, and regional groups filled the regulatory role of reducing GHG emissions. 96 Much like different countries globally, subnational groups have an interest in mitigating and adapting to climate change, too. 97 Coastal states are concerned with rising sea levels. 98 Western states will face droughts and increased 9

wildfire risks. 99 Coastal cities will face increased damage due to severe weather patterns. 100 Some cities will see greater intensity heat waves. 101 In fact, even the U.S. Supreme Court recognized subnational interests from climate change in Massachusetts v. EPA, 102 where the court recognized that the Commonwealth of Massachusetts was sufficiently injured by climate change to meet standing requirements. 103 Many states have developed efforts to combat climate change through climate action commissions, climate action plans, and laws to reduce GHG emissions. 104 Thirty-four states and the District of Colombia have established Renewable Portfolio Standards (RPS), which are standards requiring a certain percentage of electricity generation from a renewable energy source by a deadline year. 105 States have developed policy portfolios, where states are using a wide range of policies and plans to combat climate change including codes and standards, marketbased systems, RPSs, financial incentives, and technical assistance. 106 California has been the leader in state action for climate change passing its Global Warming Solution Act of 2006 107 and adopting strict motor vehicle GHG standards under the Clean Air Act, as well. 108 Regionally, states have collaborated in reaching climate change initiatives. The Regional Greenhouse Gas Initiative (RGGI) is an agreement among ten Northeastern and Mid-Atlantic states establishing a regional cap-and-trade program for carbon emissions from electric power plants. 109 The Western Climate Initiative (WCI) is another regional initiative that includes California, Arizona, New Mexico, Oregon, Utah, Montana and Washington. 110 WCI has set a goal to reduce regional greenhouse emissions to 15% below 2005 levels by 2020. 111 The Canadian provinces British Columbia, Manitoba, Ontario, and Quebec have also signed on to WCI. 112 Today, the WCI also includes observer states: Alaska, Colorado, Idaho, Kansas, Nevada, and Wyoming; the Canadian provinces of Nova Scotia and Saskatchewan; and the 10

Mexican border states of Baja California, Chihuahua, Coahuila, Nuevo Leon, Sonora, and Tamaulipas. 113 WCI has also developed a regional cap-and-trade program that will begin in 2012. 114 Another regional initiative is the Midwestern Regional Greenhouse Gas Reduction Accord (MGGRA), which includes Illinois, Iowa, Kansas, Michigan, Minnesota, Wisconsin, and the Canadian Province of Manitoba 115. The MGGRA agreed to establish GHG reduction targets and to establish a multi-sector cap-and-trade program. 116 Indiana, Ohio, and South Dakota are observers to MGGRA. 117 Even cities are getting into the climate change action. Almost 1,000 mayors signed onto the U.S. Mayors Climate Protection Agreement, in which cities have committed to meet or beat the Kyoto Protocol targets. 118 These local approaches are invaluable to the climate change solution puzzle because the problems of climate change are so pervasive. 119 Subnational governments mitigate climate change problems through their management of transportation systems, electric utilities, land use controls, agricultural uses, landfill management, and building codes -- areas specific to subnational governmental control. 120 The problems presented by climate change are disparate and diverse necessitating that these lower levels of government be utilized in order to effectively address climate change problems. 121 D. The Status of A National Climate Change Law In the United States, it is more likely than in prior years that a domestic climate change law will be passed by Congress. 122 Climate change legislation needs to be passed before the November interim elections or a climate change law may not be passed at all in 2010. 123 Republicans could be voted into office later this year, which may eliminate the Democratic majority in Congress needed to pass a controversial climate bill. 124 Given that there is such a make or break deadline for the climate change legislation, many supporters, including Senator 11

John Kerry (D-Mass.) and President Barack Obama are pushing hard toward passing climate change legislation this year. 125 The United States also notified the world of its intentions to pass a climate change law in its association with the Copenhagen Accord. Notably, in its letter to the U.N. setting forth an American emissions reduction target of 17% of 2005 levels by 2020, the United States stated that this range is in conformity with anticipated U.S. energy and climate legislation, recognizing that the final target will be reported to the Secretariat in light of enacted legislation. 126 The U.S. also stated, [t]he pathway set forth in pending legislation would entail a 30% reduction in 2025 and a 42% reduction in 2030, in line with the goal to reduce emissions 83% by 2050. 127 At home in the U.S., climate change legislation is on Congress agenda where over 150 bills involving climate change have been proposed as of April 2010, which gives substance to America s statements in the Copenhagen Accord. 128 In June 2009, the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009 ( Waxman- Markey ). 129 Now that Waxman-Markey has reached the Senate, the next step is for the Senate to pass a climate change bill. 130 In addition to considering Waxman-Markey, the Senate is looking at approximately five other major climate change bills: the Clean Energy Jobs and American Power Act of 2009 ( CEJAPA ), the American Clean Energy Leadership Act of 2009 (S.B. 1462), the Clean Energy Partnerships Act of 2009 (S.B. 2729), the Clean Energy Act of 2009 (S.B. 2776), and the Carbon Limits and Energy for America s Renewal Act of 2009 (S.B. 2877). 131 The hottest bill, though, is still yet to be proposed. 132 Senators John Kerry (D-Mass.), Lindsey Graham (R-S.C.), and Joe Lieberman (I-Conn.) are crafting a compromise climate change measure, set to be proposed by in late April 2010. 133 ( Kerry-Lieberman-Graham Bill ). 134 The Kerry-Lieberman-Graham Bill is a bipartisan measure with input from business 12

leaders, interest groups, and members of the Obama Administration. 135 It has also received key input from previously reluctant Senators, both Democrat and Republican. 136 As of the date of this paper, this bill seems to have the best likelihood of passing through the Senate, given all of the foregoing support. The focus of U.S. domestic climate change legislation is different from the international climate change focus on emissions reductions and funding. A letter from Senators Kerry, Lieberman, and Graham to the Obama Administration before the Copenhagen Convention outlines America s focus on economic concerns of climate change: not burdening consumers with costs of cleaner energy, creating jobs, lowering America s dependence on foreign oil, not regulating agricultural pollution to avoid the burdens on the agricultural industry, creating incentives for development of cleaner energy technologies, limited, phased-in pollution reduction targets to accommodate business adaptation, support for existing technologies like nuclear power, and support for assisting the coal industry in transitioning to cleaner energy. 137 While the international community is more focused on establishing targets for global emissions reductions, domestically, nations like the United States are concerned with economic factors. This difference in focus makes connecting the national piece of the climate change puzzle a difficult task. 138 Congress needs to enact domestic legislation with a mind toward a future international climate change agreement, but also with a mind toward local interests, so as to make all the pieces of the climate change puzzle fit together seamlessly. E. Key Elements to Making the Pieces of the Climate Change Puzzle Fit The key elements to making the multileveled-pieces of the climate change solution puzzle fit are: balance and flexibility. These terms are simple, but explain accurately the key concepts to enact the missing international and national pieces. 13

For the international climate change piece to fit, the U.S. agreement mechanism must be flexible enough to allow for open international negotiations, but also be enforceable within the U.S. in order to be effective. Thus, an international climate change agreement in the form of a congressional-executive agreement is likely the best choice to assist the implementation of a future international climate change agreement. For the national climate change piece, the law should be a balance between Congress authority and states authority under federalism guidelines. Thus, soundly avoiding preemption may be the best way to strike the necessary balance and make the national climate change piece fit seamlessly with the existing subnational efforts. 1. The Concept of Congressional-Executive Agreements Despite the perhaps unfamiliar term, congressional-executive agreements (CEA) are not new to the American international agreement schema. 139 Most of the United States recent international agreements over the last fifty years have actually been in the form of congressionalexecutive agreements. 140 For the United States, there are two general forms of achieving an international agreement: the typical treaty process (as most Americans understand the traditional Constitutional concept) or variations of executive agreements (President-enacted international agreements). 141 These two forms present both benefits and burdens. 142 A treaty, although it presents a constitutionally sound basis, can be difficult to pass as it requires a two-thirds majority of the Senate to agree, in addition to needing implementing legislation, which are two necessary conditions that may not likely occur. 143 An executive agreement, although much easier to implement and more likely to be ratified through Congress, has some questionable constitutional validity. 144 There are also several forms of executive agreements, some with more constitutional validity than others. 145 Executive agreements can take the form of sole-executive agreements, 14

treaty-executive agreements, ex ante congressional-executive agreements, ex-post congressionalexecutive agreements, and hybrid congressional-executive agreements, 146 which will be explained in more detail in Part III, A below. Most international scholars agree that a global solution to climate change problems is necessary 147 and the urgency of the problems indicate that any global solution must be enacted quickly. But, international negotiations require flexibility, too. 148 First, without a broadly supported foreign climate policy, U.S. negotiators are unlikely to be able to commit to any international agreement that would politically acceptable or factually realistic. 149 Second, because the issue of climate change is so contentious in America, few policy makers are likely to understand the geopolitics the President will have to negotiate through in order to achieve an international agreement and the necessity of designing domestic legislation with the international community firmly in mind. 150 For example, developing countries like China and India will not sign on to an international climate change agreement unless they see commitment from the United States in the way of funding for international adaption or mitigation to climate change and significant efforts by the United States to reduce carbon emissions. 151 Thus, the United States must enact domestic climate legislation to lend credence to a future international climate agreement. CEAs provide the perfect dose of flexibility and constitutionality to make a future international climate change agreement fit seamlessly with a U.S. domestic climate change law. 2. The Potential Constitutional Problem of Preemption Another issue is that by enacting a new national climate change law, Congress will preempt existing subnational laws aimed at climate change. 152 Preemption comes from the Supremacy Clause of the Constitution, where the Laws of the United States... shall be the supreme Law of the Land. 153 If there is a conflict between federal law and state or local law, the latter is deemed preempted. 154 There are two situations where the U.S. Supreme Court has 15

recognized where preemption occurs: 1) where a federal law expressly preempts state or local law and 2) where preemption is implied by a clear congressional intent to preempt state or local law. 155 In the case of a national climate change law, the concern is that Congress will explicitly preempt subnational efforts, as a few Senators, including staunch climate bill supporters like John Kerry (D-Mass), have stated that [t]he absence of national greenhouse gas emissions standards has invited a patchwork of inconsistent state and regional regulations. Since it is not reasonable to expect businesses to comply with fifty different standards, it is imperative that a federal pollution control system be meaningful and be set by federally elected officials. 156 The preemption concern is also highlighted by pleas to Senators Kerry, Graham, and Lieberman from several states Attorneys General to not preempt subnational climate change efforts when crafting the new national climate change legislation: We write today to urge you to craft a Senate climate and energy bill in a way that capitalizes on, and does not abandon, the significant progress that has been achieved through numerous State efforts to address global warming pollution. 157 The debate around preemption actually falls within a broader policy debate regarding federalism centralization (i.e. national government autonomy) versus decentralization (i.e. state sovereignty). 158 The debate in favor of centralization advocates that 1) interstate spill-over costs requires a federal response, 2) centralization counteracts the race to the bottom of subnational jurisdictions to attract industry, 3) a national scale provides economic efficiencies to regulated entities, 4) pooling national resources at a larger scale also improves gathering, research, rulemaking and enforcement processes, and 5) a national scale provides greater diversity of interest groups to finding solutions. 159 The arguments in favor of decentralization or state sovereignty advocate that 1) states can act as laboratories for new innovations, 2) local 16

decision making is more responsive to local preferences, 3) local decision making can also be tailored to specific local environmental realities, 4) states as laboratories can adapt quickly to new ideas, and 5) interjurisdictional competition can lead to economically efficient regulation. 160 This debate is further explored below in Part III, B below. III. ANALYSIS WEIGHING THE NATIONAL PUZZLE PIECE OPTIONS A U.S. national climate change piece could fit with an international agreement and the subnational laws in a few different ways. For the international fit, the U.S. national climate change law could contain elements to create a future congressional-executive agreement (CEA) or could not contain anything and hope for a future enforceable treaty. For the subnational fit, the U.S. national climate change law could harmonize with the subnational laws or the national law could preempt them. This section weighs the possible national climate change law elements to find the combination that would support both a future, enforceable international climate change agreement and a durable, cooperative subnational climate change regime. A. Aligning A Fit With The International Climate Change Pieces With the presumption that an international climate change agreement is necessary 161 and that an enacted U.S. domestic climate change law will assist international negotiations, 162 the next step is to identify how the United States might enter into an international agreement that responds quickly to the problems of climate change, but that is enforceable in the United States, ensuring a durable international piece of the climate change solution puzzle. International agreements can take many forms, but principally there are just two forms that could bind the United States: a treaty or an executive agreement. 163 1. Treaties The traditional mechanism for international agreements is a treaty. From 1775 to 1825, the United States concluded twice as many treaties as nontreaty agreements. 164 Treaties are 17

explicitly authorized in the Constitution under Article II, Section 2; the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. 165 Additionally, the Constitution explicitly states that treaties are binding as part of the supreme Law of the Land. 166 The subject matter for treaties is unrestricted in that it can include any subject suggested by its national interests in relations with other nations. 167 The strong constitutionality of treaties is a point in favor of using the treaty to make an international climate agreement as it can easily stand the test of a constitutional challenge. An example of a successful international environmental treaty is the 1987 Montreal Protocol. 168 One of the problems with treaties, however, is that a small minority group in the Senate can indefinitely hold up a treaty from ratification. 169 In today s treaty process, before a treaty is even presented to the full Senate for a two-thirds vote, it must be approved by the Senate Foreign Relations Committee. 170 The Committee will not act on a treaty if a minority in the Committee objects and demands more time to consider, creating a hold on the treaty process. 171 This minority could be just one Senator. 172 Currently, approximately twenty-seven treaties are languishing in the Senate, ten of which date back to between 1949 and 1987. 173 The treaty process presents a problem to an international climate agreement in that a very small minority in the Senate could hold off ratification indefinitely, thus frustrating the goal of expediently enacting a global climate change solution. Another problem with treaties is the two-thirds supermajority required for ratification. Should a treaty pass out of the Foreign Relations Committee, a treaty requires two-thirds of the Senators to agree before ratification can occur. 174 Ratification of a climate change treaty by a supermajority in the Senate is unlikely to occur given the controversy over climate change, 175 not 18

to mention that any favorable majority currently in the Senate is likely to decline come November. 176 This in itself creates an impediment to an international climate treaty. Finally, any climate change treaty will likely require implementing legislation because of the specific concerns of lesser-developed countries and access to funding. Theoretically, a treaty could be self-executing meaning that it contains provisions explicitly that enforce the provisions of the treaty domestically. 177 One of the major issues debated during the Copenhagen Convention was the issue of funding for developing countries to adapt to climate change or to develop cleaner energies. 178 If the United States were to sign onto an international climate treaty and agree to fund an international climate fund, this would require an appropriation of funds by Congress, which would require implementing legislation by Congress in order to fulfill that obligation of the treaty. 179 In this case, a treaty would not only have to be ratified by a two-thirds majority in the Senate, but then would need implementing legislation passed by both House and Senate to effectuate the treaty. The 1989 Basel Convention, which regulates the transboundary movement and disposal of hazardous waste, is an example of this exact failure: although the treaty was ratified by the Senate in 1989, the necessary implementing legislation has not yet been approved by Congress and the United States is still not a party to that convention. 180 Thus, with a treaty domestic legislation will be necessary for the United States to be a party to an international climate treaty. 2. Executive Agreements Executive agreements come in several varieties: sole-executive, treaty-executive, and congressional-executive. This section will discuss the benefits and problems associated with each type. a. Sole-Executive Agreements 19

Sole-executive agreements are made solely by the President without any explicit authorization from Congress. 181 The President has the constitutional authority to make these agreements without congressional authorization under several provisions in the Constitution. 182 This power specifically allows the President to recognize foreign states or governments and to make agreements as commander in chief during declared wars, including armistice agreements. 183 Additionally, it has been recognized by the U.S. Supreme Court that the President tends to have broad authority to make many other international agreements, at least in the absence of congressional legislation to the contrary or if in accordance with existing congressional legislation. 184 Some examples of sole-executive agreements include the Yalta Agreement of 1945, the Vietnam Peace Agreement of 1973, and the Iran Hostage Agreement of 1981. 185 Arguably, the President could enact an international climate agreement pursuant to the Clean Air Act (CAA). 186 The U.S. Supreme Court in Massachusetts v. Environmental Protection Agency, held that the Environmental Protection Agency (EPA) had the authority to regulate GHG emissions under the CAA. 187 Thus, under the authority of the CAA, the President could theoretically enter into an international climate agreement with regard to regulation of GHG emissions. 188 The problem of this approach, however, is that the President could not agree to other areas of an international climate agreement that would require monetary appropriations from Congress, and it is debatable whether a system of cap-and-trade on carbon would be authorized under the CAA without prior congressional amendment. 189 Certainly, the President acting on his own is a more expedient process as opposed to achieving a majority of votes from the numerous members of Congress or even just the Senate. But, without congressional support, the President may enact only an agreement that is limited to 20

the President s authorized Powers. 190 This may explain why only about five percent of executive agreements are sole-executive agreements. 191 Finally, even if a solid basis could be found for the sole-executive international climate agreement, it would be politically unwise for the President to enter into that agreement without congressional approval. 192 Widespread bipartisan political support is a precondition for an effective and enduring U.S. climate change foreign policy. 193 b. Treaty-Executive Agreements Treaty-executive agreements are executed by the President on the basis of a previously enacted treaty. 194 These agreements, like sole-executive agreements, are generally rare. 195 Some examples include subsidiary arrangements under the North Atlantic Treaty, the General Agreement on Tariffs and Trade, and the Panama Canal Treaty. 196 The benefits to these types of agreements are that they have some constitutional validity because they were enacted on the basis of a previously ratified treaty. 197 The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) 198 and the 1992 United Nations Framework Convention on Climate Change (UNFCCC) 199 are both treaties that theoretically could authorize the President to engage in an international treaty-executive climate agreement. 200 The Montreal Protocol, however, regulates pollution in only the stratosphere and it is unclear whether other parts of the atmosphere could be regulated pursuant to this agreement. 201 The UNFCCC also is problematic as it is not a self-executing agreement and there was no implementing legislation in order to enact the original convention. 202 So, under either the UNFCCC or the Montreal Protocol, it would be difficult for the President to commit to an international treaty-executive climate agreement without additional congressional buy-in, as an international climate agreement is likely to require appropriations from Congress or other reduction remedies outside the scope of the CAA. 203 These examples highlight explicitly the problem with treaty-executive agreements - - it may not be clear whether the President has authority to enact a future amendment to the 21

treaty or whether the amendment will require implementing legislation to enact. In essence, this type of agreement presents the same problems as a treaty, even though there is somewhat more constitutional validity to this agreement as opposed to a sole-executive agreement. The benefit is that they have some constitutional validity, because they were enacted on the basis of a previously ratified treaty, but that is also the burden as well. 204 c. Congressional-executive Agreements Congressional-executive agreements (CEA), in contrast to treaty-executive or soleexecutive agreements, are instances where Congress (as a whole, including the House and the Senate) has created domestic legislation either ex ante (meaning before the President was to engage in an international agreement) or ex post (meaning after the President has already engaged in an international agreement) or some hybrid. 205 Just from the definition, one can see that the problem with this type of agreement is that congressional action is required in connection with any international agreement. Regardless, congressional-executive agreements dominate the international agreement arena in that they constitute approximately eighty to ninety percent of all international agreements. 206 Some of the most important international agreements to date have been in the form of congressional-executive agreements: the Bretton Woods agreement (creating the World Bank and the International Monetary Fund), the North American Free Trade Agreement (NAFTA), the World Trade Organization (WTO), and the legal instruments incorporating Texas and Hawaii into the United States. 207 The constitutional validity of congressional-executive agreements, however, has been cast in doubt by some constitutional scholars. 208 Professor Laurence Tribe argues that because congressional-executive agreements are not explicitly authorized by the Constitution, they are unconstitutional. 209 He argues that treaties are the exclusive vehicle for international agreements. 210 But, Professor Tribe has not been consistent with this opinion. He previously 22

stated that congressional-executive agreements are coextensive with the treaty power. 211 Moreover, the view that congressional-executive agreements are unconstitutional is inconsistent with U.S. practice, case law, and the weight of scholarly opinion. 212 Most of the hostility toward congressional-executive agreements has been directed at expost agreements that arguably have the least constitutional validity as the President is not acting pursuant to any Congressional authority. 213 In contrast, ex-ante agreements have more constitutional validity because Congress has more say in regards to the agreement prior to it being enacted. 214 Nigel Purvis, a climate policy expert, has argued that there is a third type of congressional-executive agreement that is a type of hybrid of the ex-ante and ex-post congressional-executive agreement. 215 These agreements are most recognizable in the trade agreements, where generally Congress enacts a framework statute that: (i) grants the President the authority to negotiate one or more agreements; (ii) establishes somewhat general negotiating objectives for the United States; (iii) requires regular consultation between the executive and legislative branches; (iv) gives life to this requirement by demanding periodic reports from U.S. negotiators and by creating a formal congressional observer group to the negotiations; and, most importantly, (v) creates a streamlined review and approval process for Congress to consider both the new agreement and any domestic implementing legislation needed to give the agreement effect under domestic law. 216 Arguably an ex-ante or a hybrid congressional-executive agreement has the most constitutional validity (assuming it does not breach any separation of powers doctrines) because the President would have the full support of Congress behind him when he negotiates an international agreement. The treaty process, in contrast, limits Congress power only to the Senate, where the House does not get buy-in before any agreement is made, despite the fact that the agreement may require subsequent agreement from the House for any implementing legislation. 217 Congressional-executive agreements are similar to treaties, though, in that they allow the President to enter into international agreements not only under the powers of the President, but of 23

Congress too. 218 Therefore the scope of a congressional-executive agreement could be on any subject. 219 A sole-executive agreement in contrast would allow the President to negotiate only under those powers that he has under the Constitution. 220 B. Aligning A Fit With The Subnational Climate Change Pieces The U.S. domestic climate change law should also fit seamlessly with the already existing subnational climate change efforts. A new national climate change law could preempt more strict state or regional laws. Pro preemption arguments advocate that global climate change requires a global solution, that subnational efforts are ineffective or may even worsen climate change problems, and that the patchwork of subnational laws is inefficient. Antipreemption arguments advocate that subnational efforts are necessary pieces to the climate change solution puzzle and that subnational governments can act as laboratories for innovation. On balance, given the dynamic requirements of federalism, Congress should avoid preempting already existing subnational laws. 1. The Pro Preemption Argument On the side of preemption, the first argument advanced is that climate change problems require global solutions. 221 Because sources of GHGs are globally widespread, subnational (and even subglobal) regulations will fail to control important sources of pollutants. 222 This is similar to the centralization federalism argument that the problems of interstate spill over costs require a federal response. 223 For example, Professor Jonathan Wiener argues that although states, like California, contribute a share of global GHG emissions, no state can effectively control its own ambient level of carbon dioxide or other GHGs because ambient levels are determined by worldwide concentrations of GHGs in the atmosphere. 224 Professor Wiener concludes this point by stating that only international cooperation on emissions limitations can effectively reduce ambient concentrations. 225 24

Additionally, subnational trading markets (like Regional Greenhouse Gas Initiative s capand-trade program for instance) forfeit the greater cost savings obtainable in a larger allowance trading market encompassing more countries. 226 This problem is echoed in the centralist federalism argument advocating that the pooling of resources at a larger scale provides the necessary economic efficiencies to regulated entities. 227 Uniformity... can be desirable for products with important economies of scale in production.... disparate regulation would break up the national market for the product and be costly in terms of foregone economies of scale. 228 Another similar point for preemption argues that a national climate change law will avoid the patchwork of inconsistent subnational regulations. In fact, Senator George Voinovich (R- Ohio) has stated, [b]ecause climate change is a global issue, I believe that addressing climate change effectively must be done through a single, national program that replaces the existing, conflicting patchwork of rules, regulations, and lawsuits. 229 Finally, the pro-preemption argues that the largest problem with subnational regulation is from cross-border leakage. 230 Leakage can best be described by a market example: suppose State A decides to combat climate change by placing restrictions on harvesting timber. 231 State A s restrictions on the timber supply would raise the market price for timber, inducing an increase in the quantity of timber harvested by other non-restricted states, like State B. 232 State B, however, could produce the same harmful climate change problems State A tried prevent or could even make climate change worse if the methods for harvesting timber in State B were more harmful to the environment than were State A s original harvest methods. 233 Thus, the problem of leakage could not only be counterproductive to subnational goals, it could even result in worse results by increasing net global emissions. 234 The leakage argument is similar to the centralization argument that federal regulation can counteract the problem of race to the 25

bottom state competition, where subnational governments lower environmental standards to potentially harmful levels in order to attract industry. 235 These are strong arguments in favor of complete national regulation of climate change, but the other side has strong arguments as well. 2. The Anti-Preemption Argument In opposition to preemption, The Center for Progressive Reform (CPR), a non-profit and educational organization comprising of a network of scholars across the nation, 236 counters that climate change does not solely require a global top down approach that subnational efforts do make an impact on global emissions reductions. 237 Texas is the seventh largest emitter of carbon dioxide in the world and California is the twelfth. 238 Ten of the largest cities in the United States, by themselves, account for 10% of total U.S. emissions. 239 Subnational efforts are necessary for an effective climate change solution. 240 CPR argues that prohibiting state and local governments from acting in areas that have always been within their exclusive jurisdiction including the regulation of electric utilities, land use control, agriculture, landfills, and building codes would make it impossible for the United States to achieve the carbon reductions needed to avoid catastrophic climate change. 241 For example, development and transportation decisions made by local governments will be key to reducing carbon emissions. 242 Additionally, Hari Osofsky, climate change scholar, notes that the IPCC has recognized the value in both topdown (i.e. global to national to subnational) and bottom-up (i.e. state to national to global) models are needed to regulate emissions most efficiently. 243 In response to the uniformity and patchwork pro-preemption arguments above, scholars argue that a cooperative form of federalism has always existed and that the patchwork argument is really a smokescreen for deregulation. Congress can avoid preempting the field by explicitly stating that states may hold stricter regulations on GHGs and it has done so in the past. 244 First, 26

Raymond and Brian Biering note that there are numerous examples of effective federal and state co-regulation of environmental matters, such as contained within the Clean Air Act (CAA), the Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), and the National Environmental Policy Act of 1969 (NEPA). 245 Thus, they argue, [t]here is no reason to assume that climate change cannot be addressed similarly. 246 smokescreen for deregulation. 247 Second, CPR argues that the patchwork argument is just a Regulated industries typically raise the patchwork argument only with respect to state requirements that are tougher than their federal counterparts, suggesting that deregulation is their true agenda. 248 CPR also notes that most of the industries, including those solidly against any climate change regulation, actually have systems already in place to ensure their compliance not only with different federal, state, and local laws, but also with the differing international legal regimes that affect their globalized businesses. 249 Thus, the idea that large multinational companies are overburdened by stringent subnational laws is not credible. 250 Moreover, the value of subnational efforts to provide for new innovations should not be lost to preemption, especially given its strong federalism support. Subnational governments can act as laboratories of innovation where they serve as a proving ground for new ideas and technologies. 251 Once successfully demonstrated at the subnational level, these ideas can then be adopted nationally to provide even greater benefits. 252 In fact, the laboratories argument is frequently made for protecting federalism. 253 Justice Brandeis first articulated the idea when he stated that, [i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. 254 27

Finally, within the United States dual federalism concept, Congress should not preempt subnational efforts. The Supreme Court has stated, [a]lthough the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. 255 Instead of complete preemption, Congress could work cooperatively with states by setting a floor or minimum level of federal protection but allowing states to exceed the floor by adopting more stringent laws. 256 Effects of climate change are disparate, making solutions difficult to achieve by any one level of government. 257 Thus, a cooperative national climate change law could provide a level of uniformity to address GHG emission, but also allow states and localities to adopt stricter targets as necessary to address their own constituents concerns. IV. PROPOSAL: FINISHING THE CLIMATE CHANGE PUZZLE A U.S. domestic climate change piece is necessary to finish the climate change solution puzzle. The new U.S. domestic climate change piece requires two elements: 1) that it provides for a flexible and enforceable international component and 2) avoids preemption of existing subnational climate change efforts. A congressional-executive agreement, in a form similar to an ex-ante congressional-executive agreement would be the best form of international climate agreement because of the flexibility in meeting the complex geopolitics of climate change, the efficiency of being quickly adapted, and the constitutionality of pre-congressional approval of an international climate agreement. 258 A new domestic climate change law should also not completely preempt existing state and regional efforts to combat climate change, but instead should work cooperatively to best address the problems caused by climate change. 259 The next section addresses whether the proposed climate bills in Congress address these two key elements. A. Identifying the Crucial U.S. National Piece Among the Proposed Climate Change Bills in Congress 28

Among the major climate change bills pending in the Senate currently, any one of them could potentially be the new U.S. national climate change law. The frontrunners are 1) the American Clean Energy and Security Act of 2009 ( Waxman-Markey ), 2) the Clean Energy Jobs and American Power Act of 2009 ( CEJAPA ), and 3) the new Kerry-Lieberman-Graham proposal, set to be unveiled April 26, 2010. 260 The best bill will be the one that provides the necessary concessions for a future international climate change agreement, but also does not disturb the current subnational climate change laws already in existence. 1. The American Clean Energy and Security Act of 2009 ( Waxman-Markey ) The American Clean Energy and Security Act of 2009 ( Waxman-Markey ) is probably the best of all the proposed climate change bills because of its comprehensiveness. Waxman- Markey contains provisions for both an international monetary fund and some clauses allowing states to have stricter climate change regulations on emissions. 261 Waxman-Markey seeks to balance interests in national uniformity with subnational interests in diversity by preempting some state action with federal ceilings, but adds in savings clauses to allow states to surpass federal minimums in others. 262 Waxman-Markey includes provisions for international climate agreements, setting up a potential basis for the congressional-executive agreement. It allows for an international framework agreement to regulate GHGs for civil aircraft. 263 It includes a provision directing the President to advise Congress if certain reports indicate that global actions are not on schedule to maintain safe global average surface temperature and atmospheric thresholds for GHGs. 264 Significantly, it also contains a provision directing the President to inform Congress of the status of any international actions to achieve GHG reductions. 265 Additionally, Waxman-Markey s cap-and-trade program allows for international standards on carbon tonnage. 266 Notably, like the trade agreements, it seems to give the President authority to negotiate an international climate 29

change agreement subject to the requirements by Congress of equal emissions holdings by other countries and to contribute to an international fund to support climate change. 267 By providing for an international fund and setting forth guidelines for a future international agreement, Waxman-Markey nicely provides for a future international climate change agreement in the form of a congressional-executive agreement. Waxman-Markey may provide a balance of preemption and anti-preemption interests. 268 Waxman-Markey does explicitly preempt cap-and-trade programs in Title III, 335 where it states, no State or political subdivision thereof shall implement or enforce a cap and trade program that covers any capped emissions emitted during the years 2012 through 2017. 269 This provision is vague as to whether regional cap-and-trade programs would be explicitly preempted for those years. 270 Title 1, 101 establishes a national renewable portfolio standard that preserves the rights of states to surpass it, [n]othing in this section shall... diminish or qualify any authority of a State... to... adopt or enforce any law or regulation respecting renewable electricity or energy efficiency, including any law or regulation establishing requirements more stringent than those established by this section.... 271 Title II, 201 establishes a national building code energy efficiency target and preserves the right of states to surpass it. 272 Title II, also establishes new energy efficiency standards for various appliances 273 and allows a waiver from federal preemption. 274 Nicely, Title II continues to allow the Environmental Protection Agency Administrator to set new emissions standards for vehicles, but leaves intact California s special waiver status. 275 Unfortunately Waxman-Markey is not likely to pass in the Senate. 276 This bill was passed in the House of Representatives on June 26, 2009, but is currently awaiting a parallel, 30

compromise Senate bill that will scale-back some measures, without clear indication of what those specific differences will be. 277 2. The Clean Energy Jobs and American Power Act of 2009 (CEJAPA The Clean Energy Jobs and American Power Act of 2009 (CEJAPA) is second most likely to be the new climate change law, as it is the Senate s companion legislation to Waxman- Markey. 278 Functionally, CEJAPA is similar to Waxman-Markey but with less international provisions and potentially more preemption. 279 The international provisions in CEJAPA are similar to Waxman-Markey. CEJAPA provides for an international fund for climate activities to provide assistance to developing countries for reduced emissions from deforestation and GHG emissions, like Waxman- Markey. 280 The bill also creates agencies that would monitor these funds and other international developments regarding climate change. 281 This bill also directs the President to advise Congress of any international agreements that would reduce GHG emission and for establishment of an international cap-and-trade system. 282 But, CEJAPA does not include specific guidelines to the President for negotiating an international climate change agreement. In this sense, CEJAPA could provide at least some good negotiating tools for a new international climate change agreement but it lacks the definiteness necessary for a congressional-executive agreement. Without clear negotiating guidelines from Congress, CEJAPA fits more into the role of a sole-executive agreement, which could be problematic for future international climate change negotiations if the President cannot enter into an agreement with the full support of Congress or with enforceable measures. CEJAPA contains a similar preemption provision to cap-and-trade, but allows state and regional cap-and-trade programs to remain in effect until nine months after the first auction of greenhouse gas allowances. 283 Once the federal program is operational, however, then the same 31

five year preemption from Waxman-Markey works to preempt subnational cap-and-trade programs. 284 Conspicuously absent from CEJAPA, however, is any language stating that nothing in this section prevents a State from enacting more stringent laws, as was explicitly added in Waxman-Markey. 285 Professor William Buzbee states that CEJAPA s language may actually preserve states ability to require lower carbon emissions standards, in that requir[ing] the surrender to the States or a political subdivision thereof of emission allowances or offset credits, or requiring those allowances as a means of demonstrating compliance with subnational laws. 286 Like Waxman-Markey, the status quo for EPA regulation of GHGs is also intact in CEJAPA. 287 CEJAPA has a better chance of passing through the Senate than Waxman-Markey because of its more bipartisan nature. 288 Works Committee in November 2009. 289 CEJAPA passed the Senate Environment and Public CEJAPA seems likely to be superseded by the Kerry- Lieberman-Graham proposal, as that proposal seems to be the new frontrunner given its recent media attention. 290 Without knowing for certain whether CEJAPA will go forward as it currently stands, it may be too soon to suggest it be removed from consideration. But, if it passes as it stands and becomes the U.S. national climate change law, it would be a poor fit given its lack of provisions for an international congressional-executive agreement and its lack of provisions preserving subnational efforts. 3. The Kerry-Lieberman-Graham Proposal Although the Kerry-Lieberman-Graham climate change proposal (KGL) has not officially been released, its comprehensive, bipartisan nature makes it the most likely candidate for Senate passage, 291 and therefore the most likely candidate for the new national climate change law. Unfortunately, compared to both Waxman-Markey and CEJAPA, KGL may have worse preemption provisions and its international provisions are unknown as of April 26, 2010. 32

According to the Washington Post, Senator Kerry gave some highlights of KGL, noting that KGL explicitly preempts both states and the Environmental Protection Agency s ability to regulate greenhouse gases under the Clean Air Act. 292 KGL was set to be released on April 26, 2010, however, due to Senator Graham s sudden withdrawal from the proposal the unveiling has been postponed. 293 The current status of this bill and its potential viability remain in question. V. CONCLUSION Delay is no longer an option.... The stakes are too high. 294 Strong words coming from one no less than the President of the United States of America. But, true. The dire realities of climate change are upon us, as witnessed in the increasing severity of storms and the disappearance of islands. 295 To keep even more drastic effects such as fishery collapse, mass species extinction, and sea-level rise from happening, 296 a comprehensive, multilevel governmental solution regime is needed. 297 Like pieces of a puzzle, the different levels of governmental solutions -- international, national, and subnational -- are all critical to ending climate change, and no one piece will work by itself. 298 And, the center piece to solving this puzzle is a U.S. domestic climate change law. Although the international climate change piece is far from complete, its future success depends in part upon an enacted U.S. climate change law. 299 With the Kyoto Protocol, the world s closest thing to an international climate change agreement, set to expire in 2012, a new international agreement with substantive and enforceable mitigation and adaptation provisions is needed. 300 The international community needs U.S. leadership for a new international climate change agreement to succeed both because the U.S. is the second largest global GHG emitter and because prior U.S. failures to ratify key international agreements have created doubt about America honoring its international commitments. 33

In the vacuum of a U.S. national climate change policy, subnational groups have banned together and filled in the regulatory gaps to resolving climate change issues. 301 Almost 1,000 cities have agreed to abide by Kyoto Protocol emissions reductions targets. 302 Many states have enacted their own climate change legislation containing a varied mix of climate change solution alternatives ranging from clean energy initiatives to reduction in GHG emissions to alternative transportation methods. 303 Regions, including foreign provinces, have united to reduce GHG emissions in cap-and-trade systems. 304 But, these cities, states, and regions have invested too much of their time and money to see their efforts completely undone because of preemption by a late-to-the-party, national climate change law. 305 Therefore, as the U.S. national climate change law is poised now to fall into place and Congress is seriously considering either its Waxman-Markey or CEJAPA proposals, 306 it is crucial that this piece fit seamlessly with the international and subnational pieces in order to best finish the climate change solution puzzle. This means flexibility and balance. The best fit for the international piece requires flexibility not only to meet varying geopolitical views, but also to most quickly enforce a workable international solution. Congressional-executive agreements provide the perfect mix of flexibility and enforceability. 307 Thus, in enacting the new climate change law Congress should consider adding key international bargaining provisions, such as provided in Waxman-Markey, to best achieve this component. The best fit for the subnational pieces requires balancing national uniformity concerns with federalism doctrines. Avoiding preemption as much as possible helps to preserve what subnational efforts have already started. 308 Thus, Congress should consider avoiding preemption of subnational laws in favor of a more cooperative federalism model, similar to some of the provisions provided in Waxman- Markey. 34

Congress will pass a new climate change law soon, regardless of its components, as delay is no longer an option. 309 But, the stakes are too high 310 for Congress not enact the right piece that will successfully finish the climate change solution puzzle. 35

Chart on Steps to Making an Executive Agreement: 311 36

312 1 President-Elect Barack Obama, Speech to the Governor s Climate Summit Organized by California Governor Arnold Schwarzenegger (Nov. 18, 2008), excerpts available at United Nations Environment Programme webpage: http://www.unep.org/documents.multilingual/default.asp?documentid=556&articleid=6044&l=en [hereinafter Obama Speech]. 2 Ben Geman, Crunch Time For Climate Change Bill, THE HILL, Apr. 12, 2010, available at http://thehill.com/blogs/e2-wire/677-e2-wire/91543-crunch-time-for-climatebill?utm_source=twitterfeed&utm_medium=twitter [hereinafter Geman Crunch Article]. 37