All hands on deck: Local governments and the potential for bidirectional climate change regulation

Stanford Law Review

Volumn 62, Issue 3, 2010, Pages 669-746

  Trisolini, Katherine A ^a  

^a LOYOLA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950453694     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (407)

1. Manny Diaz, Mayor, Miami, Fla., Address as President of the United States Conference of Mayors (June 22, 2008), available at http://www.cfecoalition.org/PDFs/Mayor_Diaz_Speech.pdf.
2. Although scholars and courts sometimes refer to state governments as "local," this Article uses the term "local government" exclusively to refer to jurisdictions smaller than states. City governments in the United States have been the predominant local actors on climate change policy and most of the policies discussed here come from these municipal governments. However, because counties, metropolitan area governance structures, school districts, and special use districts also have adopted programs, this Article refers to "local governments" to capture their activities as well.
3. Org. for Am., New Energy for America, http://my.barackobama.com/page/content/newenergy_more (last visited Jan. 18, 2010).
4. See Pew Ctr. on Global Climate Change, Summary: Copenhagen Climate Summit, http://www.pewclimate.org/international/copenhagen-climate-summit-summary (last visited Feb. 13, 2010).
5. See Juliet Eilperin & Steven Mufson, Budget Expects Revenue from Limits on Emissions, WASH. POST, Feb. 26, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/02/25/AR2009022503360_pf.html.
6. The most recent legislative effort, the American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong., barely squeaked through the House and faces significant opposition in the Senate.
7. See, e.g., GovTrack, House Vote on Passage: H.R. 2454: American Clean Energy and Security Act of 2009, http://www.govtrack.us/congress/vote.xpd?vote=h2009-477 (last visited Feb. 3, 2010) (showing that the House voted 219 to 212 to pass the Act);
8. Josh Nelson, GOP Candidates Attacking Dems for Positions They Don't Hold, FIREDOGLAKE, Jan. 14, 2010, http://seminal.firedoglake.com/diary/23944 (describing strong negative response from Republican Party following House passage of the Act). While the Environmental Protection Agency has initiated regulatory action under the Clean Air Act to reduce greenhouse gas emissions, these efforts will be time-consuming and are likely to be tied up in litigation for some time.
9. See infra Part II.B.
10. Although carbon dioxide is by far the most prevalent greenhouse gas and receives the most attention (for example, popular climate change efforts often discuss how to reduce one's "carbon footprint"), several other gases cause the same greenhouse effect and are in fact more effective at trapping heat than carbon dioxide. At the most extreme, one metric ton of sulfur hexafluoride has the same heating effect (referred to as "radiative forcing") as 23,900 tons of carbon dioxide. In order to create a common metric for evaluating the effect of these gases, scientists give the radiative forcing caused by carbon dioxide a value of one and describe other gases effect in terms of equivalence to carbon dioxide. Thus, for example, one ton of methane has the radiative forcing value of twenty-one compared to carbon dioxide. This allows greenhouse gas inventories to evaluate the greenhouse effect of all gases combined by providing the total in terms of "metric tons of carbon dioxide equivalent" (MTCO2eq.).
11. See Int'l Emissions Trading Assoc., What Are Carbon Dioxide Equivalents?, http://www.ieta.org/ieta/www/pages/index.php?IdSitePage=123 (last visited Feb. 3, 2010).
12. Although human activity has already raised average global temperatures enough to extinguish species, alter weather patterns, increase the frequency and intensity of extreme storm events and heat waves, spread disease vectors, and raise sea levels (among other things), impacts will accelerate between now and 2100 absent dramatic emissions reductions.
13. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT 48 (2007), available at http://www.ipcc.ch/pdf/assessmentreport/ar4/syr/ar4_syr.pdf. While the atmospheric lifetime of greenhouse gases commits the planet to some further warming already, scientists predict that catastrophic climate change can be avoided if current global emissions are cut by fifty to eighty-five percent by midcentury. Id. at 66-67. A more recent analysis by one of NASA's experts calls for even more rapid and significant emissions cuts to avoid triggering irreversible climatic "tipping points."
14. James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 OPEN ATMOSPHERIC SCI. J. 217 (2008), available at http://www.columbia.edu/~jeh1/2008/TargetCO2_20080407.pdf.
15. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Although human activity has already raised average global temperatures enough to extinguish species, alter weather patterns, increase the frequency and intensity of extreme storm events and heat waves, spread disease vectors, and raise sea levels (among other things), impacts will accelerate between now and 2100 absent dramatic emissions reductions. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT 48 (2007), available at http://www.ipcc.ch/pdf/assessmentreport/ar4/syr/ar4_syr.pdf. While the atmospheric lifetime of greenhouse gases commits the planet to some further warming already, scientists predict that catastrophic climate change can be avoided if current global emissions are cut by fifty to eighty-five percent by midcentury. Id. at 66-67. A more recent analysis by one of NASA's experts calls for even more rapid and significant emissions cuts to avoid triggering irreversible climatic "tipping points." James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 OPEN ATMOSPHERIC SCI. J. 217 (2008), available at http://www.columbia.edu/~jeh1/2008/TargetCO2_20080407.pdf., at 48; see also Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (stating that "[t]he harms associated with climate change are serious and well recognized" and identifying an "objective and independent" study cataloguing these harms (quoting Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922-02, 52,930 (effective Sept. 8, 2003)) (internal quotation marks omitted)).
16. While China recently surpassed the U.S. in total emissions, Press Release, Neth. Env't Assessment Agency, China Now No. 1 in CO2 Emissions; USA in Second Position (June 19, 2007), available at http://www.pbl.nl/en/news/pressreleases/2007/20070619Chinanowno1inCO2emissionsUSAi nsecondposition.html, on a per capita basis, the United States still far exceeds every other country's emissions (with the exception of Australia), producing nearly a quarter of the world's greenhouse gases with only five percent of the population. Union of Concerned Scientists, Each Country's Share of CO2 Emissions, http://www.ucsusa.org/global_warming/science_and_impacts/science/each-countrys-shareof- co2.html (last visited Jan. 18, 2010); see also POPULATION REFERENCE BUREAU, 2009 WORLD POPULATION DATA SHEET 2 (2009), http://www.prb.org/pdf09/09wpds_eng.pdf. Projected U.S. population growth of 48.8 percent between 2000 and 2050 (an increase of 137,729,000 people) renders U.S. emissions all the more critical to address. U.S. CENSUS BUREAU, U.S. INTERIM PROJECTIONS BY AGE, SEX, RACE, AND HISPANIC ORIGIN: 2000-2050 tbl.2a (2004), available at http://www.census.gov/population/www/projections/usinterimproj/natprojtab02a.pdf.
17. See U.S. Envtl. Prot. Agency, U.S. Greenhouse Gas Inventory, http://www.epa.gov/climatechange/emissions/usgginventory.html (last visited Nov. 2, 2009).
18. See U.S. Envtl. Prot. Agency, U.S. Greenhouse Gas Inventory, http://www.epa.gov/climatechange/emissions/usgginventory.html (last visited Nov. 2, 2009).
19. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244 (1968).
20. See, e.g., Barton Thompson, Essay, Tragically Difficult: The Obstacles to Governing the Commons, 30 ENVTL. L. 241, 246 (2000);
21. see also Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 URB. L. 1015, 1022 (2006)
22. "Climate change is widely considered an excellent example of the overexploitation of a commons resource similar to that popularized by Garret [sic] Hardin's parable of the tragedy of the commons.".
23. See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 8-13 (1990);
24. Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOLOGY L.Q. 183, 191 (2005).
25. See infra Part III.A.
26. But see John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365 (2002) (recognizing the emergence of "local environmental law").
27. Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action.
28. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004)
29. "[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation.
30. See, e.g., David Roberts, Sparks Fly When the Mayors Meet the Congressfolk, GRIST, Nov. 5, 2007, http://gristmill.grist.org/story/2007/11/4/224955/084 (memorializing New York Mayor Bloomberg's attacks on recalcitrant Congressmen); see also Massachusetts v. EPA, 549 U.S. 497, 502, 504 (2007) (listing plaintiffs to include New York City, Baltimore, and Washington, D.C and stating that the U.S. Conference of Mayors wrote an amicus brief in support of plaintiffs).
31. Mayors Climate Prot. Ctr., U.S. Conference of Mayors, List of Participating Mayors, http://www.usmayors.org/climateprotection/list.asp (last visited Jan. 18, 2010).
32. Mayors Climate Prot. Ctr., U.S. Conference of Mayors, About the Mayors Climate Protection Center, http://usmayors.org/climateprotection/about.htm (last visited Jan. 18, 2010).
33. MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, THE U.S. MAYORS CLIMATE PROTECTION AGREEMENT 1 (2005), available at http://usmayors.org/climateprotection/documents/mcpAgreement.pdf.
34. See Jennifer Hattam, Green Streets: Where Great Ideas Are Transforming Urban Life, SIERRA, July-Aug. 2006, at 36, 36.
35. Nicholas Lutsey, Prioritizing Climate Change Mitigation Alternatives: Comparing Transportation Technologies to Options in Other Sectors 9 tbl.2 (June 2008) (unpublished Ph.D. dissertation, University of California, Davis Institute of Transportation Studies), available at http://pubs.its.ucdavis.edu/download_pdf.php?id=1175.
36. Int'l Council for Local Envtl. Initiatives, CCP Participants by Region, http://www.iclei.org/index.php?id=1484®ion=NA (last visited Feb. 3, 2010).
37. Int'l Council for Local Envtl. Initiatives, Case Study 84: Cities for Climate Protection Campaign, http://www3.iclei.org/localstrategies/pdf/ccp.pdf (last visited Feb. 3, 2010).
38. Int'l Council for Local Initiatives, The Five Milestone Process, http://www.iclei.org/index.php?id=810 (last visited Feb. 3, 2010). CCP's plan has five requirements: First, members must conduct baseline emissions inventories and forecasts for governmental operations and emissions based on energy consumption and waste generation for the base and forecast years using ICLEI's standardized software. Second, they must adopt an emissions reduction target for the forecast year. Third, members have to develop a local action plan that describes the policies and measures that they will take to reduce greenhouse gas emissions and meet their targets. Fourth, they must implement the plan. Fifth, they should monitor and verify their results on an ongoing basis. Id.; see also Int'l Council for Local Envtl. Initiatives, Technical Assistance, http://www.iclei.org/index.php?id=1247 (last visited Jan. 18, 2010).
39. INT'L COUNCIL FOR LOCAL ENVTL. INITIATIVES, ICLEI INTERNATIONAL PROGRESS REPORT: CITIES FOR CLIMATE PROTECTION 17 (2006), available at http://www.iclei.org/documents/USA/documents/CCP/ICLEI-CCP_International_Report- 2006.pdf.
40. See Int'l Council for Local Envtl. Initiatives, Regional Membership Lists by Country: North America, http://www.iclei.org/index.php?id=1387®ion=NA (last visited Jan. 18, 2010).
41. See C40 Cities Climate Leadership Group, Participating Cities, http://www.c40cities.org/cities/ (last visited Jan. 18, 2010).
42. The meaning of the term "built environment" as used in this Article is well captured in the following definition: "The buildings, roads, utilities, homes, fixtures, parks and all other man-made entities that form the physical characteristics of a community." Ctrs. for Disease Control and Prevention, Health Places Terminology, http://www.cdc.gov/healthyplaces/terminology.htm (last visited Jan. 18, 2010).
43. See MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, SURVEY ON MAYORAL LEADERSHIP ON CLIMATE PROTECTION (2007), http://www.usmayors.org/climateprotection/climatesurvey07.pdf; Int'l Council for Local Envtl. Initiatives USA, 2008 ICLEI USA Membership Survey: Member Priorities, http://www.icleiusa.org/about-iclei/members/2008-iclei-usa-membership-survey/memberpriorities (last visited Jan. 18, 2010).
44. See, e.g., David Roberts, Sparks Fly When the Mayors Meet the Congressfolk, GRIST, Nov. 5, 2007, http://gristmill.grist.org/story/2007/11/4/224955/084 (memorializing New York Mayor Bloomberg's attacks on recalcitrant Congressmen); see also Massachusetts v. EPA, 549 U.S. 497, 502, 504 (2007) (listing plaintiffs to include New York City, Baltimore, and Washington, D.C and stating that the U.S. Conference of Mayors wrote an amicus brief in support of plaintiffs).
45. See infra Part II.B.4.
46. See infra Part II.B.1-3.
47. For example, in Think Globally, Act Globally, Jonathan Wiener focuses his argument on state-level action but nonetheless uses terms "local" and "state" interchangeably. Wiener, supra note 19, at 1962;
48. see also, e.g., Richard B. Stewart, States and Cities as Actors in Global Climate Change Regulation: Unitary vs. Plural Architectures, 50 ARIZ. L. REV. 681,(2008) (analyzing the benefits of having climate change policies run by "states, cities, and other sub-national actors," to which he collectively refers as "SNAs");
49. Carol M. Rose, Federalism and Climate Change: The Role of the States in a Future Federal Regime-An Introduction, 50 ARIZ. L. REV. 673,(2008) (adopting Stewart's acronym "SNA" to describe collective state and local action).
50. See, e.g., Robert B. McKinstry, Jr., Laboratories for Local Solutions for Global Problems, 12 PENN ST. ENVTL. L. REV. 15, 64-67 (2004); Wiener, supra note 19, at 1963.
51. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation., at 1963.
52. Following the Elliott-Ackerman-Millian hypothesis that finds industry support for federalization of environmental law in order to avoid a patchwork of inconsistent state standards, E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326-27 (1985), several scholars argue that subnational actions may have their primary effect by driving industry to lobby for uniform federal climate change legislation. See, e.g., Engel, supra note 15, at 1026-29; Wiener, supra note 19, at 1963 ("[S]tate level strategies could yield some significant results, including... raising the specter of a patchwork of inconsistent state regulations as a political gambit to motivate industry to support broader federal regulation."). Jody Freeman and J.R. DeShazo comprehensively analyze this potential, identifying numerous elements of existing state plans that may have created the perfect storm for prompting industry (and environmentalists) to seek federal preemption of these diverse, inconsistent, and unpredictable state plans. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. 1499 (2007); see also Engel, supra note 15, at 1026-28.
53. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation., at 1964.
54. Engel, See, e.g., Barton Thompson, Essay, Tragically Difficult: The Obstacles to Governing the Commons, 30 ENVTL. L. 241, 246 (2000); see also Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 URB. L. 1015, 1022 (2006) ("Climate change is widely considered an excellent example of the overexploitation of a commons resource similar to that popularized by Garret [sic] Hardin's parable of the tragedy of the commons.", at 1026.
55. Robert Michaels, "Renewable" Electricity Creating Jobs, Destroying Wealth, HUMAN EVENTS, Aug. 30, 2006, http://www.humanevents.com/article.php?id=16751.
56. David G. Victor, Joshua C. House & Sarah Joy, A Madisonian Approach to Climate Policy, 309 SCIENCE 1820, 1821 (2005).
57. See, e.g., Hari M. Osofsky & Janet Koven Levit, The Scale of Networks?: Local Climate Change Coalitions, 8 CHI. J. INT'L L. 409, 414 (2008) (arguing that local climate plans contribute to the "re-scaling" of the climate change debate by creating bottom-up legal evolution).
58. But cf. id. at 430 (noting that cities' "micro-decisions... bear hard legal consequences that have an impact on global emissions, especially in light of the substantial aggregate contribution of cities").
59. Kevin L. Doran, U.S. Sub-Federal Climate Change Initiatives: An Irrational Means to a Rational End?, 26 VA. ENVTL. L.J. 189, 226 (2008).
60. See Engel, See, e.g., Barton Thompson, Essay, Tragically Difficult: The Obstacles to Governing the Commons, 30 ENVTL. L. 241, 246 (2000); see also Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmenta Law?, 38 URB. L. 1015, 1022 (2006) ("Climate change is widely considered an excellent example of the overexploitation of a commons resource similar to that popularized by Garret [sic] Hardin's parable of the tragedy of the commons."), at 1020, 1028.
61. See Engel, See, e.g., Barton Thompson, Essay, Tragically Difficult: The Obstacles to Governing the Commons, 30 ENVTL. L. 241, 246 (2000); see also Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmenta Law?, 38 URB. L. 1015, 1022 (2006) ("Climate change is widely considered an excellent example of the overexploitation of a commons resource similar to that popularized by Garret [sic] Hardin's parable of the tragedy of the commons."), at 1028.
62. See Richard B. Stewart, Pyramids of Sacrifice?: Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1211 (1977)
63. The Tragedy of the Commons arises in noncentralized decisionmaking under conditions in which the rational but independent pursuit by each decisionmaker of its own self-interest leads to results that leave all decisionmakers worse off than they would have been had they been able to agree collectively on a different set of policies.
64. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation, at 1965. 51. See OSTROM, supra note 16, at 8-13.
65. One could describe a cap-and-trade system as creating property rights to pollute the atmosphere. In that sense, it could be "privatized" to some degree.
66. See Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 25 (1996).
67. See Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. at 24.
68. Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 130, 175-76 (2005).
69. For a seminal article describing this justification, see Stewart A, See Richard B. Stewart, Pyramids of Sacrifice?: Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1211 (1977)
70. The Tragedy of the Commons arises in noncentralized decisionmaking under conditions in which the rational but independent pursuit by each decisionmaker of its own self-interest leads to results that leave all decisionmakers worse off than they would have been had they been able to agree collectively on a different set of policies."), at 1215 ("Even if the commons problem were eliminated, decentralized environmental decisionmaking would remain flawed because spillover impacts of decisions in one jurisdiction on well-being in other jurisdictions generate conflicts and welfare losses not easily remedied under a decentralized regime.
71. Butler & Macey, at 26 ("In general, the most compelling argument for federal regulation is to deal with interstate externalities that cannot be adequately addressed by state and local regulations.").
72. See Jonathan B. Wiener, Radiative Forcing: Climate Policy to Break the Logjam in Environmental Law, 17 N.Y.U. ENVTL. L.J. 210, 236-37 (2008)
73. A generation ago, the debate raged between advocates of command-and-control technology standards and advocates of market-based incentives. Today this question has largely been settled with broad acceptance of incentive instruments....
74. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y 298, 304 (2008).
75. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y. at 302, 309.
76. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y at 303.
77. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y at 314-15.
78. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y at 315.
79. Richard B. Stewart A Wiener, The Comprehensive Approach to Global Climate Policy: Issues of Design and Practicality 9 ARIZ. J. INT'L & COMP. L. 83, 86, 103-04 (1992).
80. Richard B. Stewart A Jonathan B. Wiener at 88, 95-96.
81. Richard B. Stewart A Jonathan B. Wiener at 96.
82. The authors also describe policies that target only some greenhouse gases or sectors as "piecemeal" and adverse to the development of a comprehensive system. Id. at 98-99.
83. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Capand- Trade System, 24 OXFORD REV. ECON. POL'Y at 103-10.
84. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation.
85. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation at 1964.
86. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation at 1967.
87. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation 1967-70.
88. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation 1969-70.
89. Wiener, Some commentators evaluate state and local climate change plans as potential alternatives (rather than complements) to federal regulation. Not surprisingly, they criticize the idea that state and local policies can substitute effectively for federal action. See, e.g., Laura H. Kosloff, Mark C. Texler & Hal Nelson, Outcome-Oriented Leadership: How State and Local Climate Change Strategies Can Most Effectively Contribute to Global Warming Mitigation, 14 WIDENER L.J. 173, 174-75 (2004) ("[S]tate and local policies cannot truly substitute for national and international policies and measures in achieving a successful outcome.... Thinking globally and acting locally simply isn't sufficient."); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("[L]ocal action is not well suited to regulating mobile global conduct yielding a global externality.... [S]ubnational state-level action, by itself, is of limited value, and may even yield perverse results...."). Yet, there appears to be a general consensus that subnational actions alone are insufficient to mitigate U.S. greenhouse gas emissions. Indeed, state and local governments themselves have strongly advocated for federal action, exhorting, suing, and lobbying the federal government for national climate change regulation and legislation 1970-73.
90. Cary Coglianese & Jocelyn D'Ambrosio, Response, Policymaking Under Pressure: The Perils of Incremental Responses to Climate Change, 40 CONN. L. REV. 1411, 1429 (2008).
91. Cary Coglianese & Jocelyn D'Ambrosio, Response, Policymaking Under Pressure: The Perils of Incremental Responses to Climate Change, 40 CONN. L. REV. 1411, 1429 (2008)
92. Wiener, ("Some key climate policy tools, such as electric utility regulation, building codes, transportation systems, and land use planning, are handled by the states. The new national climate policy should encourage the use of such state and local authorities to reduce GHG emissions, so long as they do not impede the national capand- trade program.").
93. See, e.g., Butler & Macey, supra note 53, at 45 (arguing against the "race-to-thebottom" rationale for federal regulation because "[t]he interest group problem is more acute at the federal level"); DeShazo & Freeman, supra note 39, at 1560 (discussing the influence of interest groups on federal climate change legislation).
94. The passage of the Energy Independence and Security Act of 2007 overhauled corporate average fuel economy (CAFE) standards for the first time in thirty years, John M. Broder, House, 314-100, Passes Broad Energy Bill; Bush to Sign It Today, N.Y. TIMES, Dec. 19, 2007, at A24, despite the fact that technology that could raise average fuel efficiency had been available for quite some time, Maria Godoy, CAFE Standards: Gas-Sipping Etiquette for Cars, NAT'L PUB. RADIO, June 18, 2007, http://www.npr.org/templates/story/story.php?storyId=5448289.
95. While it makes sense to reduce potential leakage where it is feasible to do so without harming other objectives, the substantial uncertainties regarding its impact warrant caution in slowing the pace of mitigation efforts out of fear of theoretical leakage. The IPCC's review of economic literature on the international impact of leakage from the Kyoto Protocol suggests why. The review shows widely divergent estimates-ranging from as low as six percent to as high as 130 percent at the extreme. However, the review cites studies finding that the high-end estimates overlook limiting conditions on the ground that favor local production. The latter studies anticipate leakage at "considerably lower" levels than previously projected. See Awwad Alharthi et al., Mitigation from a Cross-Sectoral Perspective, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: MITIGATION OF CLIMATE CHANGE 619, 665-66 (B. Metz et al. eds., 2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-chapter11.pdf.
96. Local governments often cooperate directly with the federal government, independent of their respective states, a phenomenon captured by Nestor Davidson in the phrase "cooperative localism." Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959, 960 (2007). This independent local relationship remains "submerged" in the "reigning iconography" of dual federalism, which fails to recognize either localities independently or the "ubiquity" of cooperative relationships. Id. at 963-66, 1000. Indeed, recent federalism decisions limiting federal power and devolving regulatory power to states may ultimately disempower local governments vis-à-vis states, undermining the localist values. Id. at 1000-23.
97. See PEW CTR. ON GLOBAL CLIMATE CHANGE, CONTAINING THE COST OF CLIMATE CHANGE POLICY 1 (2008), available at http://www.pewclimate.org/docUploads/Costs.pdf.
98. The most common mechanisms proposed to address these include: banking, or allowing covered sources to hold on to unused allowances for future use; borrowing-either allowing firms to borrow from their own future allowances, or an economy-wide model that gives the program administrator the authority to borrow additional allowances from the future; offsetting, which allows covered entities to pay for reductions from domestic or international uncapped sources in lieu of their own emissions reductions; a strategic allowance reserve that could provide additional allowances if the price exceeds a certain level; multi-year compliance deadlines; provisions to extend compliance periods if prices become too high; and a "circuit breaker" that adjusts the cap or extends the deadline for economy-wide reductions if the price exceeds a certain level. Id. at 4-10.
99. Of the eight major cap-and-trade proposals submitted in the 110th Congress, all but one specified cost-containment measures such as offsets, borrowing, banking, or freezes on the cap if prices exceed a certain level. Id. at 13. Both the House and Senate versions of climate legislation pending as of January 2010 in the 111th Congress include cost containment mechanisms. PEW CTR. ON GLOBAL CLIMATE CHANGE, CLEAN ENERGY JOBS AND AMERICAN POWER ACT (2009), http://www.pewclimate.org/docUploads/chairmans-mark-kerry-boxer- 10-29-09.pdf. The Senate version allows borrowing, offsets, and creates a reserve stocked with additional offsets and future allowances that could be tapped if the price exceeds a designated threshold. Id. The House version also incorporates borrowing, offsets, and banking (with slightly different requirements) and creates a strategic reserve of allowances that could be tapped if the price exceeds a particular threshold. See PEW CTR. ON GLOBAL CLIMATE CHANGE, AMERICAN CLEAN ENERGY AND SECURITY ACT AT A GLANCE (2009), http://www.pewclimate.org/docUploads/Waxman-Markey-short-summary-revised- June26.pdf.
100. For example, one approach allows for borrowing from future years' allowances, PEW CTR. ON GLOBAL CLIMATE CHANGE, supra note 83, at 5, creating uncertainty around the effectiveness of repayment requirements. Other approaches allow firms to "offset" their emissions by paying for emissions reductions that fall outside of the cap, either domestically or internationally. Id. at 6-7. In addition, some devices specifically relax the cap if prices exceed a certain threshold. Id. at 7, 9-10.
101. Environmental federalism scholarship in the 1990s generally divided between advocates of centralized and decentralized regulation. For advocates of a centralized regime, see, for example, Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L.J. 271 (1997), and Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67 (1996). Examples of decentralized regime advocacy include, for example, Butler & Macey, supra note 53; Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992).
102. See, e.g., Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570, 572, 74 (1996) (Noting that "[s]implistic notions of regulatory reform-including attempts to establish a single, appropriate level of government intervention-are doomed to fail" and "the challenge is to find the best fit possible between environmental problems and regulatory responses-not to pick a single level of government for all problems.").
103. See, e.g., Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281, 312-17 (2003).
104. Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 161 (2006).
105. Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 161 (2006).
106. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 797-98 (2005).
107. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 797-98 (2005)
108. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. at 795, 797-98.
109. See Stewart A, at 681. Note that Stewart does not draw upon the analogy to a comprehensive international regime, as Wiener does, Wiener, at 1966-73, to conclude that subnational action will undermine U.S. federal policy.
110. Stewart A, For example, in Think Globally, Act Globally, Jonathan Wiener focuses his argument on state-level action but nonetheless uses terms "local" and "state" interchangeably. Wiener, supra note 19, at 1962; see also, e.g., Richard B. Stewart, States and Cities as Actors in Global Climate Change Regulation: Unitary vs. Plural Architectures, 50 ARIZ. L. REV. 681, 681 (2008) (analyzing the benefits of having climate change policies run by "states, cities, and other sub-national actors," to which he collectively refers as "SNAs"); Carol M. Rose, Federalism and Climate Change: The Role of the States in a Future Federal Regime-An Introduction, 50 ARIZ. L. REV. 673, 673 (2008) (adopting, at 699-701. 96. Id. at 700.
111. See Susanne C. Moser, In the Long Shadow of Inaction: The Quiet Building of a Climate Protection Movement in the United States, GLOBAL ENVTL. POL., May 2007, at 124, 131-40.
112. See, e.g., INT'L COUNCIL FOR LOCAL ENVTL. INITIATIVES, U.S. CITIES FOR CLIMATE PROTECTION PROGRESS REPORT 8 (2006), available at <url>http://www.icleiusa.org/library/documents/action-center/ICLEI-CCP_US_Report-</url> 2006.pdf/at_download/file ("Together we have huge purchasing power, and if we invest wisely, that can have huge implications for the environment." (quoting Charlotte, North Carolina Mayor Patrick McCrory)); City of Portland Bureau of Planning and Sustainability, How Is Our Region Reducing Emissions?, http://www.portlandonline.com/bps/index.cfm?c=41896&a=111833 (last visited Jan. 10, 2010) ("While the actions of one city will have only a small impact on global CO2 emissions, many cities together can achieve meaningful reductions.").
113. U.S.CENSUS BUREAU, U.S. DEP'T OF COMMERCE, UNITED STATES SUMMARY: 2000, POPULATION AND HOUSING UNIT COUNTS 13 tbl.8, 14 tbl.9 (2004).
114. Richard Briffault, The Central Place of States and Local Governments in American Federalism, in THE HANDBOOK OF MUNICIPAL BONDS 3, 15 (Sylvan G. Feldstein & Frank J. Fabozzi eds., 2008).
115. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, ANNUAL ESTIMATES OF THE RESIDENT POPULATION FOR INCORPORATED PLACES OVER 100,000, RANKED BY JULY 1, 2008 POPULATION (2008), http://www.census.gov/popest/cities/tables/SUB-EST2008-01.xls; C40 Cities Climate Leadership Group
116. C40 Cities Climate Leadership Group, Participating Cities, http://www.c40cities.org/cities/ (last visited Jan. 18, 2010).
117. PEW CTR. ON GLOBAL CLIMATE CHANGE & PEW CTR. ON THE STATES, CLIMATE CHANGE 101: LOCAL ACTION 1 (2009), available at http://www.pewcenteronthestates.org/uploadedFiles/Climate%20Change%20101,%20Local%20Action.pdf.
118. Mayors Climate Prot. Ctr., U.S. Conference of Mayors, List of Participating Mayors, http://www.usmayors.org/climateprotection/list.asp (last visited Jan. 18, 2010).
119. CITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING GLOBAL WARMING 2 (2007), http://www.ladwp.com/ladwp/cms/ladwp010314.pdf.
120. U.S. Census Bureau, Local Governments and Public School Systems by Type and State: 2007, http://www.census.gov/govs/cog/GovOrgTab03ss.html (last visited Jan. 15, 2010). This figure includes general purpose local governments (i.e., cities and counties), school districts, and special-use districts.
121. U.S. Census Bureau, Local Governments and Public School Systems by Type and State: 2007, http://www.census.gov/govs/cog/GovOrgTab03ss.html (last visited Jan. 15, 2010). This figure includes general purpose local governments (i.e., cities and counties), school districts, and special-use districts.
122. Dillon's Rule, so named for its author John F. Dillon, a late-nineteenth century Iowa Supreme Court Judge, provides: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and none others: First, those granted in express words. Second, those necessarily or fairly implied in or incident to the powers expressly granted; Third, those essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable. And any fair reasonable doubt concerning the existence of the power is resolved by the courts against the corporation.
123. Knapp v. Kansas City, 48 Mo. App. 485, 492 (Mo. Ct. App. 1892) (emphases added) (citations omitted) (original emphases omitted); see also Nat'l League of Cities, Dillon's Rule, http://www.nlc.org/about_cities/cities_101/154.aspx (last visited Jan. 10, 2010). Dillon's Rule was widely adopted and provided the basis for a narrow reading of local powers starting in the late-nineteenth century and during much of the twentieth century.
124. RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT LAW 266-69 (6th ed. 2004).
125. David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003);
126. See also BRIFFAULT & REYNOLDS, supra note 106, at 268 ("By 1990, forty-eight states provided a measure of home rule for at least some of their cities. In addition, thirty-seven states provided for home rule for some of their counties.").
127. At the federal level, eight cap-and-trade legislative proposals were introduced into the 110th Congress.
128. The most common mechanisms proposed to address these include: banking, or allowing covered sources to hold on to unused allowances for future use; borrowing-either allowing firms to borrow from their own future allowances, or an economy-wide model that gives the program administrator the authority to borrow additional allowances from the future; offsetting, which allows covered entities to pay for reductions from domestic or international uncapped sources in lieu of their own emissions reductions; a strategic allowance reserve that could provide additional allowances if the price exceeds a certain level; multi-year compliance deadlines; provisions to extend compliance periods if prices become too high; and a "circuit breaker" that adjusts the cap or extends the deadline for economy-wide reductions if the price exceeds a certain level.
129. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. (2007), at 1546.
130. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. (2007), at 1546
131. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. (2007), at 1546
132. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. (2007), at 1546
133. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. (2007), at 1547-48.
134. This is not to argue that local governments are the only governmental entities that regulate downstream. The state and federal governments already target energy consumption to some degree through such mechanisms as energy efficiency requirements for appliances and tax incentives.
135. Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. (1996). at 29 ("The economic goal of government regulation of pollution is to force polluters to bear the full cost of their activities. In economic jargon, the regulatory goal should be to force the internalization of externalities. Externalities are costs and benefits that are not directly priced by the market system.... Externalities in the use of resources often arise where property rights are either nonexistent or poorly specified, as is the case with resources such as the atmosphere.").
136. S. Pacala & R. Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 SCIENCE 968 (2004).
137. See supra note 8 (providing an explanation of this measurement, which stands for "metric tons of carbon dioxide equivalent emissions").
138. S. Pacala & R. Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 SCIENCE, at 970 tbl.1.
139. Pacala and Socolow presumed that stabilizing carbon dioxide concentrations in the atmosphere at 500 ppm, a commonly referenced figure, would be sufficient to prevent catastrophic climate change.
140. S. Pacala & R. Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 SCIENCE, at 968.
141. James Hansen of NASA, among others, has recently argued that much lower levels are necessary for climate stabilization, roughly 350 ppm.
142. James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 OPEN ATMOSPHERIC SCI. J. (2008), available at http://www.columbia.edu/~jeh1/2008/TargetCO2_20080407.pdf., at 226.
143. Widely available technologies and building methods to improve energy efficiency include: improving the building's thermal envelope; improving heating system efficiency; reducing the cooling load through such methods as reflective roofs and shade trees; using passive and low energy cooling techniques; building energy management systems; using solar energy for power, heat, and hot water; using highly efficient electric lighting; daylighting (using natural light); and using highly efficient appliances, electronics, and office equipment, among other things.
144. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 81, at 387, 395-403, available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-chapter6.pdf.
145. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE § 1.7.3 (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf.
146. See infra Part II.B.1.b.
147. See U.S. Envtl. Prot. Agency, Why Build It Green?, http://www.epa.gov/greenbuilding/pubs/whybuild.htm (last visited Jan. 10, 2010).
148. Cities vary in the proportion of their greenhouse gas profile that stems from building energy demand, but regardless it accounts for a substantial part. Los Angeles estimates that building energy demands account for two-thirds of the electricity use in the city, and generates thirty-two percent of the city's annual carbon dioxide emissions. L.A. DEP'T OF CITY PLANNING, BUILDING A GREEN LOS ANGELES: FRAMEWORK FOR THE CITY'S GREEN BUILDING PROGRAM 1 (2008), http://cityplanning.lacity.org/code_studies/GreenLa/Brochure.pdf. The city of New York estimates that seventy-nine percent of the 58.3 million metric tons of CO2 eq. generated in the city in 2005 went toward meeting the energy needs of buildings.
149. OFFICE OF LONG-TERM PLANNING & SUSTAINABILITY, MAYOR'S OFFICE OF OPERATIONS, INVENTORY OF NEW YORK CITY: GREENHOUSE GAS EMISSIONS 7 (2007), http://www.nyc.gov/html/om/pdf/ccp_report041007.pdf.
150. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 389.
151. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 389.
152. ELAINE HALE ET AL., U.S. DEP'T OF ENERGY, GENERAL MERCHANDISE 50% ENERGY SAVINGS: TECHNICAL SUPPORT DOCUMENT (2009), http://www.nrel.gov/docs/fy09osti/46100.pdf;
153. W. JIANG ET AL., U.S. DEP'T OF ENERGY, TECHNICAL SUPPORT DOCUMENT: 50% ENERGY SAVINGS DESIGN TECHNOLOGY PACKAGE FOR HIGHWAY LODGING BUILDINGS (2009), http://www.pnl.gov/main/publications/external/technical_reports/PNNL-18773.pdf;
154. MATTHEW LEACH ET AL., U.S. DEP'T OF ENERGY, GROCERY STORE 50% ENERGY SAVINGS: TECHNICAL SUPPORT DOCUMENT (2009), http://www.nrel.gov/docs/fy09osti/46101.pdf;
155. B.A. THORNTON ET AL., U.S. DEP'T OF ENERGY, TECHNICAL SUPPORT DOCUMENT: 50% ENERGY SAVINGS DESIGN TECHNOLOGY PACKAGES FOR MEDIUM OFFICE BUILDINGS (2009), http://www.pnl.gov/main/publications/external/technical_reports/PNNL-19044.pdf.
156. W. JIANG ET AL., U.S. DEP'T OF ENERGY, TECHNICAL SUPPORT DOCUMENT: 50% ENERGY SAVINGS DESIGN TECHNOLOGY PACKAGE FOR HIGHWAY LODGING BUILDINGS (2009), http://www.pnl.gov/main/publications/external/technical_reports/PNNL-18773.pdf, § 6.0;
157. B.A. THORNTON ET AL., U.S. DEP'T OF ENERGY, TECHNICAL SUPPORT DOCUMENT: 50% ENERGY SAVINGS DESIGN TECHNOLOGY PACKAGES FOR MEDIUM OFFICE BUILDINGS (2009), http://www.pnl.gov/main/publications/external/technical_reports/PNNL-19044.pdf, § 5.1.
158. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 389.
159. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 390.
160. COMM'N FOR ENVTL. COOPERATION, GREEN BUILDING IN NORTH AMERICA 55 (2008), http://www.cec.org/files/PDF//GB_Report_EN.pdf ("Higher perceived or actual first costs of many green building strategies and technologies are a significant disincentive. A survey released in August 2007 by the World Business Council on Sustainable Development found that key players in the real estate industry overstated the cost of green building by an average of 300 percent, estimating the cost to be 17 percent above conventional construction, more than triple the cost estimated by the study's authors of 5 percent.").
161. Alan Pears, Misconceptions About Energy Efficiency-Its Real Potential: Some Perspectives and Experiences 1 (2004), available at http://www.naturaledgeproject.net/Documents/ENERGYEFFICIENCYbackgroundpaperPears.doc ("Most people choose not to invest in energy efficiency measures with a simple payback period of more than a few years. Yet this is economically and environmentally irrational behaviour.");
162. Nat'l Trust for Historic Preserv., Conversation with an Energy Auditor: David W. Malone, http://www.preservationnation.org/issues/weatherization/audits/malone.html (last visited Jan. 10, 2010) ("I think the biggest misconception is that energy efficient measures cost a lot of money and aren't sound financial investments. To the contrary, when a homeowner in our part of the country takes the basic steps of insulating, weatherizing, and solar shading their home properly, the cost is not substantial. The 'break even' point only takes a few years and the financial payback continues for decades-not to mention the immediate improvement in comfort.").
163. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 390.
164. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 419.
165. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 419-20.
166. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 419, 422-23.
167. Kornelis Blok et al., Residential and Commercial Buildings, in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, at 421.
168. See David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. 21, 23 (2005).
169. Often a "building code" is not one document but rather a set of interrelated codes covering different aspects of building construction including the building itself (structural system, fire safety, general safety, enclosure, interior environment, materials), plumbing, mechanical and combustion equipment, electrical systems, and energy. Id.
170. Id. at 31.
171. JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW § 8.2 (2d ed. 2007).
172. David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. (2005), at 31.
173. David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. (2005), at 31.
174. Clifford C. Ham, Urban Renewal: A Case Study in Emerging Goals in an Intergovernmental Setting, 359 ANNALS AM. ACAD. POL. & SOC. SCI. 44 (1965).
175. JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW (2d ed. 2007), § 8.3.
176. JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW (2d ed. 2007), § 8.8.
177. David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. (2005), at 31.
178. While statewide codes rose from twenty-two in the mid-1970s to forty-six by 2003, many apply only to specific types of properties, such as government-owned buildings or multi-unit dwellings. Id. Most create minimum requirements allowing for higher local standards and even for those few states that set maximum requirements, local governments nonetheless regulate properties not covered by statewide standards.
179. David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. (2005), at 31-32.
180. David Listokin & David B. Hattis, Building Codes and Housing, 8 CITYSCAPE: J. POL'Y DEV. & RES. (2005), at 29.
181. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf.
182. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf.
183. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf.
184. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf.
185. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: A STUDY OF GREEN BUILDING PROGRAMS IN OUR NATION'S COMMUNITIES 4 (2007), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias075288.pdf.
186. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: A STUDY OF GREEN BUILDING PROGRAMS IN OUR NATION'S COMMUNITIES 4 (2007), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias075288.pdf.
187. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: A STUDY OF GREEN BUILDING PROGRAMS IN OUR NATION'S COMMUNITIES 4 (2007), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias075288.pdf. at 13.
188. The total population in the cities contacted was 107,918, 963. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: A STUDY OF GREEN BUILDING PROGRAMS IN OUR NATION'S COMMUNITIES 4 (2007), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias075288.pdf. at 4. Of these, at least 42,374,499 people lived in a city with a green building program. Id.
189. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: A STUDY OF GREEN BUILDING PROGRAMS IN OUR NATION'S COMMUNITIES 4 (2007), http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias075288.pdf. at 16.
190. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508.
191. The AIA reaches this figure by adding the population for cities that are not within counties with green building programs to its county findings. Id. at 18. This figure likely underestimates the total, as the studies only included the 200 most populous counties and cities with populations greater than 500,000. Id.
192. U.S. Green Bldg. Council, FAQ: LEED Green Building Certification System, http://www.usgbc.org/ShowFile.aspx?DocumentID=3330 (last visited Jan. 11, 2010).
193. ® certified building uses 32% less electricity and saves 350 metric tons of CO2 emissions annually.").
194. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf., at 2, 9-11, 18, 22, 25-26, 32, 35-36, 38, 40, 42-49, 51-52, 54, 59;
195. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508, at 24, 26, 45-47.
196. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508, at 40.
197. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 55.
198. Ross C. Anderson, Mayor, Salt Lake City, Executive Order (Jan. 19, 2006), available at http://www.slcgreen.com/pdf/execorderLEED.pdf; Press Release, City of Dallas, "Green" Is New Building Standard in Dallas (Apr. 9, 2008), http://www.dallascityhall.com/pdf/pio/green_building_standard_040908.pdf.
199. U.S. GREEN BLDG. COUNCIL, LEED INITIATIVES IN GOVERNMENTS AND SCHOOLS 60 (2009), http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1852.
200. Jeff Robinson, Small Kansas Town Rebuilds as a Green City, KCPW, Nov. 19, 2009, http://kcpw.org/blog/local-news/2009-11-19/small-kansas-town-rebuilds-asgreen-city/.
201. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 18.
202. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 18-19.
203. Unlikely examples include: Gaithersburg, Maryland, which offers reduced permitting fees and rebates to cover LEED fees, Id. at 54; Cincinnati, Ohio, which offers property tax abatement as an incentive for green building, Id. at 55; and Flower Mound, Texas, which employs green building awards and other local recognition, Town of Flower Mound, Tex., Environmental Resources: Green Building, http://www.flowermound.com/env_resources/env_resources_green.php (last visited Jan. 11, 2010) ("The Town has developed a voluntary, incentive-based program to encourage builders and developers to: [d]esign and build energy efficient homes and commercial buildings[;] [e]ncourage water conservation[; and s]upport waste minimization[.] Each Green Builder certified by the Town will be recognized on this website. The home or building owner will receive an official Green Building Logo that can be prominently displayed. The builder or developer may use their Green Building status in marketing and advertising campaigns.").
204. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 18.
205. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 19.
206. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 19.
207. In Arlington, Virginia, for example, all projects must employ LEED-certified professionals and require submission of a LEED Scorecard. Certain projects must earn twenty-six points, or else face a $.03 per square foot fee that goes to support green building education. Id. at 56. Normal, Illinois imposes fines of up to $1000 a day for failing to meet its commercial building standards.
208. SHERRIE GRUDER, UNIV. OF WIS. EXTENSION, GOVERNMENT GREEN BUILDING PROGRAMS INVENTORY 1 (2007), http://www4.uwm.edu/shwec/publications/cabinet/reductionreuse/Government%20Green%20Buildling%20Programs%20Inventory3.pdf, at 31.
209. As part of its climate action plan, Los Angeles revised its building code to mandate basic LEED standards and to provide incentives for projects attaining LEED Silver or higher levels. L.A. DEP'T OF CITY PLANNING, supra note 124, at 2. Starting on November 1, 2008, new commercial buildings over 50,000 square feet, high-rise residential buildings over 50,000 square feet, and low-rise residential buildings of the same size that have 50 or more units will be required to meet LEED certification standards; reconstruction of existing buildings will also trigger the requirement if the cost meets a certain threshold. Id. Boston, the first city to require LEED standards for commercial in its zoning code, requires that all private buildings over 50,000 square feet meet LEED standards.
210. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 16, 42.
211. In 2003, Chicago amended its building code to increase energy efficiency requirements for all new residential buildings and additions to existing buildings. See City of Chi., Introduction to the Chicago Energy Code, http://egov.cityofchicago.org/city/webportal/home.do (follow "Your Government" hyperlink and select "City Departments" hyperlink under "Local Government"; then select "Buildings," "Chicago Building Code," "Chicago Energy Conservation Code," and "Introduction to the Chicago Energy Code") (last visited Jan. 11, 2010) (describing Chicago Energy Conservation Code's application to residential buildings).
212. GREEN DALLAS, DALLAS CITY HALL, SUMMARY OF TASK FORCE RECOMMENDATIONS AND ORDINANCE REQUIREMENTS 6 (2008), http://www.dallascityhall.com/pdf/OEQ/green_building_ordinance040908.pdf
213. see also Press Release, City of Dallas, supra note 164.
214. For example, Frisco, Texas requires all four categories of construction-municipal, commercial, multifamily, and single-family-to meet efficiency standards; residential construction must meet EPA Energy Star standards and commercial or multifamily buildings have Frisco-specific standards based on LEED.
215. BROOKS RAINWATER & COOPER MARTIN, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY: GREEN COUNTIES 15 (2008), http://www.aia.org/advocacy/local/counties/AIAS078508 at 56.
216. Normal, Illinois requires all private and public buildings in the city's Central Business District over 7500 square feet to meet LEED standards, with fines of up to $1000 a day for failing to meet the ordinance's requirements. GRUDER, supra note 149, at 31. The city of West Hollywood, California adopted a local ordinance creating a mandatory sustainability point system for commercial buildings and residential buildings of three or more units, with incentives for exceeding the minimum number of points. City of West Hollywood, About Green Building, http://www.weho.org/index.cfm/fuseaction/detail/navid/53/cid/5234/ (last visited Jan. 11, 2010).
217. ROBERT C. ELLICKSON & VICKI L. BEEN, LAND USE CONTROLS: CASES AND MATERIALS 29 (3d ed. 2005) ("Public land use regulation in the United States traditionally has been mainly the province of local governments.")
218. Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 3 (1990) ("Land use control is the most important local regulatory power.... [S]tate-delegated power, supported by judicial attitudes sympathetic to local control, has resulted in real local legal authority, notwithstanding the nominal rules of state supremacy.")
219. see also Rapanos v. United States, 547 U.S. 715, 738 (2006) ("Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power. The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land-an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board." (citations omitted)).
220. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE § 2.1 (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf.
221. Eileen Claussen, Foreword to DAVID L. GREENE & ANDREAS SCHAFER, PEW CTR. ON GLOBAL CLIMATE CHANGE, REDUCING GREENHOUSE GAS EMISSIONS FROM U.S. TRANSPORTATION, at ii, ii (2003), available at http://www.pewclimate.org/docUploads/ustransp.pdf.
222. Eileen Claussen, Foreword to DAVID L. GREENE & ANDREAS SCHAFER, PEW CTR. ON GLOBAL CLIMATE CHANGE, REDUCING GREENHOUSE GAS EMISSIONS FROM U.S. TRANSPORTATION, at ii, ii (2003), available at http://www.pewclimate.org/docUploads/ustransp.pdf, at 2-3.
223. Eileen Claussen, Foreword to DAVID L. GREENE & ANDREAS SCHAFER, PEW CTR. ON GLOBAL CLIMATE CHANGE, REDUCING GREENHOUSE GAS EMISSIONS FROM U.S. TRANSPORTATION, at ii, ii (2003), available at http://www.pewclimate.org/docUploads/ustransp.pdf, at 3.
224. STEVE WINKELMAN ET AL., CTR. FOR CLEAN AIR POLICY, COST-EFFECTIVE GHG REDUCTIONS THROUGH SMART GROWTH & IMPROVED TRANSPORTATION CHOICES, at v (2009), http://www.ccap.org/docs/resources/677/CCAP%20Smart%20Growth%20-$%20per%20ton%20CO2%20_June%202009_%20FINAL.pdf.
225. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE § 1.7.6 (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf;
226. see also U.S. ENVTL. PROT. AGENCY, GREENHOUSE GAS EMISSIONS FROM THE U.S. TRANSPORTATION SECTOR 1990-2003, at 7 (2006), http://www.epa.gov/otaq/climate/420r06003.pdf.
227. Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 (2008). The EISA also requires the establishment of annual fuel economy increases for automobiles beginning in 2011 in order to reach the thirty-five miles per gallon target in 2020. 49 U.S.C.A. § 32902(b)(2)(C) (West 2009).
228. SIMON MUI ET AL., U.S. ENVTL. PROT. AGENCY, A WEDGE ANALYSIS OF THE U.S. TRANSPORTATION SECTOR 16 (2007), http://www.epa.gov/OMS/climate/420r07007.pdf.
229. Progressive Policy Inst., Driving Down Carbon Dioxide, http://www.ppionline.org/ppi_ci.cfm?knlgAreaID=116&subsecID=900039&contentID=252224 (last visited Feb. 8, 2010) (quoting the Center for Clean Air Policy).
230. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.3.
231. SIMON MUI ET AL., U.S. ENVTL. PROT. AGENCY, A WEDGE ANALYSIS OF THE U.S. TRANSPORTATION SECTOR 16 (2007), http://www.epa.gov/OMS/climate/420r07007.pdf, at 17 n.39 (citing ENERGY INFO. ADMIN., U.S. DEP'T OF ENERGY, ANNUAL ENERGY OUTLOOK (2007)).
232. SIMON MUI ET AL., U.S. ENVTL. PROT. AGENCY, A WEDGE ANALYSIS OF THE U.S. TRANSPORTATION SECTOR 16 (2007), http://www.epa.gov/OMS/climate/420r07007.pdf, at 18.
233. CAL. ENERGY COMM'N, INTEGRATED ENERGY POLICY REPORT 208-09 (2007), http://www.energy.ca.gov/2007publications/CEC-100-2007-008/CEC-100-2007-008-CMF.PDF ("It is imperative that land use planning and infrastructure investments place a high priority on reducing the growth of [VMT].").
234. Exec. Order No. S-01-07 (Cal. 2007), available at http://gov.ca.gov/executiveorder/5172/ (calling for a ten percent reduction in the carbon intensity of California's transportation fuels).
235. Assem. B. 1493, 2001-02 Reg. Sess. (Cal. 2002).
236. CAL. ENERGY COMM'N, supra note 188, at 10, 209. California is the world's third largest consumer of transportation fuel, exceeded only by China and the United States. Id. At 9. Transportation accounts for forty percent of California's greenhouse gas emissions. Id. At 10.
237. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.1.
238. Although scholars debate the proper definition of "sprawl," the following captures its common features: [Sprawl is] the process in which the spread of development across the landscape far outpaces population growth. The landscape sprawl creates has four dimensions: a population that is widely dispersed in low-density development; rigidly separated homes, shops, and workplaces; a network of roads marked by huge blocks and poor access; and a lack of welldefined, thriving activity centers, such as downtowns and town centers. Most of the other features usually associated with sprawl-the lack of transportation choices, relative uniformity of housing options or the difficulty of walking-are a result of these conditions.
239. REID EWING, ROLF PENDALL & DON CHEN, SMART GROWTH AM., MEASURING SPRAWL AND ITS IMPACTS 3 (2002), http://www.smartgrowthamerica.org/sprawlindex/MeasuringSprawl.pdf.
240. MATTHEW E. KAHN, GREEN CITIES: URBAN GROWTH AND THE ENVIRONMENT 111-12 (2006). Since World War II, the predominant pattern in land use development has presumed and supported automobile travel and has pushed development farther and farther from central cities.
241. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, at Executive Summary.
242. For example, in 2000, eighty-eight percent of Americans commuted to work by car (seventy-six percent in single occupancy vehicles). U.S. CENSUS BUREAU, JOURNEY TO WORK: 2000 at 1 (2004), www.census.gov/prod/2004pubs/c2kbr-33.pdf.
243. Zoning Matters, Types of Zoning Codes, http://www.zoningmatters.org/facts/trends (last visited Jan. 5, 2010).
244. Videotape: Land Use and Building the American Community (Rocky Mountain Land Use Institute 1996) (on file with the University of Denver Law Library).
245. Marge Fahey, Soaring Gas Prices Forcing Changes in Transportation Policy, THE GROUND FLOOR, July 22, 2008, http://thegroundfloor.typepad.com/the_ground_floor/2008/07/soaring-gas-pri.html.
246. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.7.4. This figure is adjusted for CO2 emissions.
247. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.7.4.
248. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.7.4. This figure has been projected to reach eighty percent by 2050.
249. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf, § 1.7.4
250. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf at Executive Summary.
251. See REID EWING, ROLF PENDALL & DON CHEN, SMART GROWTH AM., MEASURING SPRAWL AND ITS IMPACTS 3 (2002), at 17
252. David G. Burwell, Beyond Congestion: Transportation's Role in Managing VMT for Climate Outcome, in REDUCING CLIMATE IMPACTS IN THE TRANSPORTATION SECTOR 117, 125 (Daniel Sperling & James S. Cannon eds., 2009). This likely explains why 4.7% of Americans that took public transportation to work in 2000 were disproportionately likely to be found in the state of New York, which accounted for one-third of all of the public transportation users.
253. U.S. CENSUS BUREAU, JOURNEY TO WORK: 2000, at 8.
254. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, at Executive Summary.
255. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE. In terms of health, compact urban form correlates with fewer traffic fatalities, significantly lower levels of asthma-inducing ozone, and increases in trips that are taken by walking. Id. § 3.1.2.
256. CTR. FOR CLEAN AIR POLICY, STATE AND LOCAL LEADERSHIP ON CLIMATE CHANGE
257. http://www.siame.gov.co/siame/documentos/documentacion/mdl/03_VF_Bibliografia/Baseline/State%20and%20local%20leaderrship%20on%20transportation.pdf
258. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, § 3.1.2.
259. See Dan Sperling, James Cannon & Nic Lutsey, Climate Change and Transportation, in REDUCING CLIMATE IMPACTS IN THE TRANSPORTATION SECTOR, supra note 202, at 1, 8 ("The real key to reduced vehicle travel is creating more choice for travelers,... especially increased densification of land use. Research shows that residents in more densely populated areas and in areas with better mixes of land uses tend to emit far less GHG emissions from their travel. They tend to walk more, use more public transportation, and drive less." (internal citations omitted)).
260. The 2007 SURVEY ON MAYORAL LEADERSHIP ON CLIMATE PROTECTION found that fifty-two percent of the 134 cities responding (representing over twenty-five million people) provide financial or other incentives to encourage their employees to commute to work via public transportation, carpools, vanpools, car-sharing, bicycle or by foot. MAYORS CLIMATE PROT. CTR., supra note 32.
261. The Mayor of Houston, for example, developed the Flexible Workplace Initiative that encourages businesses to reduce traffic and congestion by allowing employees to telecommute or work on a compressed schedule. The City provides toolkits, information, and mobility studies, among other services, to support workplace flexibility. See City of Houston, Flexible Workplace Initiative (Flexworks), http://www.houstontx.gov/flexworks/index.html (last visited Jan. 9, 2010). As part of his effort to reduce traffic through workplace flexibility, Mayor White also launched a two-week program, Flex in the City, during which employers could sample flexibility options. The program monitored the impact on traffic, reported the savings, and provided awards for participation. See City of Houston, Flex in the City, http://www.houstontx.gov/flexworks/flexinthecity/index.html (last visited Jan. 9, 2010)
262. see also Press Release, City of Houston, Flex in the City Demonstrates Commuter Time Cuts, Millions in Yearly Cost Savings (Oct. 12, 2006), http://www.houstontx.gov/mayor/press/20061012.html ("More than 140 organizations registered for two-week Flex in the City program [sic] as participants and/or supporters, anticipating more than 20,000 employees eliminating an additional peak-time commute through teleworking/telecommuting; compressed workweeks (same number of work hours in fewer days); or shifting their commute to before or after peak-time commute hours.").
263. Santa Monica, California, for example, requires certain large employers to offer employees the equivalent cash value of employer subsidized parking. U.S. Envtl. Prot. Agency, Clean Air Cookbook: Parking Cash-Out Program Case Study, http://www.epa.gov/air/recipes/cashout.html (last visited Jan. 17, 2009). By incentivizing the use of public transportation, this program is estimated to save 544,000 miles of driving per year. CTR. FOR CLEAN AIR POLICY, supra note 206, at 21.
264. See generally DONALD C. SHOUP, THE HIGH COST OF FREE PARKING (2005).
265. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, § 3.4.3 figs.3-30 (citing studies of various projects showing between thirteen and seventy-two percent reductions in VMT for infill when compared with greenfield development).
266. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE. § 3.4.1.
267. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE at Executive Summary.
268. U.S. Envtl. Prot. Agency, Smart Growth: About Smart Growth, http://www.epa.gov/dced/about_sg.htm (last visited Jan. 17, 2010).
269. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, at Executive Summary.
270. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE Co-benefits include public health improvements from reductions in other pollutants, improved transportation choices, and lower infrastructure and operating costs.
271. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE § 1.7.7.
272. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE Ewing's emissions reduction estimate excludes documented energy demand reductions of approximately twenty percent in compact areas which stems from shared exterior walls in attached and multi-family housing and generally smaller floor areas of homes in high density areas. Id.
273. STEVE WINKELMAN ET AL., CTR. FOR CLEAN AIR POLICY, COST-EFFECTIVE GHG REDUCTIONS THROUGH SMART GROWTH & IMPROVED TRANSPORTATION CHOICES, at v.
274. STEVE WINKELMAN ET AL., CTR. FOR CLEAN AIR POLICY, COST-EFFECTIVE GHG REDUCTIONS THROUGH SMART GROWTH & IMPROVED TRANSPORTATION CHOICES, at v.
275. U.S. ENVTL. PROT. AGENCY, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-2007 fig.ES-4 (2009), http://www.epa.gov/climatechange/emissions/downloads09/InventoryUSGhG1990-2007.pdf. Compact design is estimated to result in eleven percent infrastructure cost savings compared with sprawl, indicating greenhouse gas savings from materials and construction.
276. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, § 1.6.
277. For an explanation of how this effect raises temperatures in urban areas compared to rural ones, see U.S. Envtl. Prot. Agency, Heat Island Effect: Basic Information, http://www.epa.gov/hiri/about/index.htm (last visited Jan. 17, 2010) ("As urban areas develop, changes occur in their landscape. Buildings, roads, and other infrastructure replace open land and vegetation. Surfaces that were once permeable and moist become impermeable and dry. These changes cause urban regions to become warmer than their rural surroundings, forming an 'island' of higher temperatures in the landscape.... On a hot, sunny summer day, the sun can heat dry, exposed urban surfaces, such as roofs and pavement, to temperatures 50-90°F (27-50°C) hotter than the air, while shaded or moist surfaces-often in more rural surroundings-remain close to air temperatures.... The annual mean air temperature of a city with 1 million people or more can be 1.8-5.4°F (1-3°C) warmer than its surroundings. On a clear, calm night, however, the temperature difference can be as much as 22°F (12°C).").
278. The term "criteria air pollutants" refers to several pollutants regulated under the Clean Air Act that have direct public health effects, by, for example, contributing to asthma, cancer, and heart disease. See U.S. Envtl. Prot. Agency, The Plain English Guide to the Clean Air Act: Cleaning Up Commonly Found Air Pollutants, http://www.epa.gov/air/caa/peg/cleanup.html (last visited Jan. 17, 2010).
279. STEVE WINKELMAN ET AL., CTR. FOR CLEAN AIR POLICY, COST-EFFECTIVE GHG REDUCTIONS THROUGH SMART GROWTH & IMPROVED TRANSPORTATION CHOICES, at 7.
280. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE, § 1.5.
281. Unlike inventories of jurisdiction-wide building code changes, extensive research did not uncover equivalent inventories demonstrating the extent of local adoption of smart growth and New Urbanist planning models.
282. In 2007, for example, El Paso, Texas performed a major rewrite on its zoning code for the first time since the early 1980s. Telephone Interview with Linda Castle, Senior Planner, City of El Paso Dev. Servs.: Planning Div. (Jan. 4, 2009). The rewrite aimed to facilitate "smart growth" through increased density, mixed uses, and reduced setback requirements, among other things. See, e.g., EL PASO, TEX., MUN. CODE §§ 21.50.080, 21.40.020, and 21.50.060 (2009), available at http://library7.municode.com/default-test/home.htm?infobase=16180&doc_action=whatsnew_20.10.520. Also in Texas, San Antonio adopted a new code for the entire city in 2001, directed at similar goals.
283. PAUL CRAWFORD, CONG. FOR THE NEW URBANISM, CODIFYING NEW URBANISM: HOW TO REFORM MUNICIPAL LAND DEVELOPMENT REGULATIONS 92-93 app. A (2004)
284. Patrick Driscoll, City Adopts New Development Code, SAN ANTONIO EXPRESS-NEWS, May 4, 2001, at A1. The Louisville, Kentucky Metro Government adopted a new zoning code in 2002, replacing the land development laws for all of Jefferson County with a plan guided by New Urbanist principles. CRAWFORD, supra, at 90-91 app. A. This plan stands to influence a comparatively large population, as Jefferson is Kentucky's most populous county with almost 714,000 residents, more than twice the size of the next largest county.
285. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, ANNUAL ESTIMATES OF THE RESIDENT POPULATION FOR COUNTIES OF KENTUCKY: APRIL 1, 2000 TO JULY 1, 2008 (2009), http://www.census.gov/popest/counties/tables/CO-EST2008-01-21.xls. In 2001, Fort Collins, Colorado adopted a new jurisdiction-wide land use code that included mixed-use neighborhood districts with minimum densities, among other smart growth/New Urbanism features. CRAWFORD, supra, at 88-89, app. A. Miami, Florida is in the final stages of developing the Miami 21 Zoning Code, which is "guided by tenets of New Urbanism and Smart Growth." The City of Miami, Miami21: Your City, Your Plan, http://www.miami21.org/ (last visited Jan. 17, 2010).
286. Duany Plater-Zyrberk & Co., Services: Codes, http://www.dpz.com/services.aspx (follow "Codes" hyperlink) (last visited Jan. 17, 2010).
287. HURLEY~FRANKS & ASSOCS., WHAT IS THE SMARTCODE? (2007), http://www.smartcodecomplete.com/documents/WhatIsSmartCode_071123.pdf.
288. SmartCode Complete, Links and Resources, http://www.smartcodecomplete.com/learn/links.html (last visited Jan. 17, 2010).
289. The following cities have adopted the code for all or part of their jurisdiction either as a mandatory overlay to the existing zoning or as an alternative option to existing zoning: Abbeville, Louisiana; Conway, Arkansas; Dardenne Prairie, Missouri; Flagstaff, Arizona; El Paso, Texas; Flowood, Mississippi; Elmore, Alabama; Fort Myers, Florida; Germantown, Tennessee; Gulfport, Mississippi; Jefferson County, Alabama; Kona, Hawaii; Lake Charles, Louisiana; Lawrence, Kansas; Leander, Texas; Liberty, Missouri; Mesquite, Texas; Montgomery, Alabama; Pass Christian, Mississippi; Petaluma, California; Pike Road, Alabama; San Antonio, Texas; Sarasota, Florida; St. Charles, Missouri; and Taos, New Mexico. Id.
290. In July 2001, Seattle, Washington adopted a mandatory zoning code addressing creating New Urbanist design in eight areas surrounding planned rail stations.
291. PAUL CRAWFORD, CONG. FOR THE NEW URBANISM, CODIFYING NEW URBANISM: HOW TO REFORM MUNICIPAL LAND DEVELOPMENT REGULATIONS, at 92-93 app. A. In 2006 it again revised its land use codes to support its climate action plans. OFFICE OF SUSTAINABILITY AND ENV'T, CITY OF SEATTLE, 2007-2008 SEATTLE CLIMATE ACTION PLAN: PROGRESS REPORT 2 (2007), http://www.seattle.gov/climate/docs/SeaCAP percent20Progress percent20Report2007.pdf.
292. In April 2004, Saint Paul, Minnesota adopted the Saint Paul Urban Village Code, which creates mandatory requirements for infill and major reuse sites, providing for mixed uses and density improvements.
293. PAUL CRAWFORD, CONG. FOR THE NEW URBANISM, CODIFYING NEW URBANISM: HOW TO REFORM MUNICIPAL LAND DEVELOPMENT REGULATIONS, at 92-93 app. A.
294. For example, San Bernardino County, California initially refused to consider the increases in VMT caused by their proposed General Plan (a strategic plan for how the region will grow required by California law) until the California Attorney General filed suit. The settlement led to a revised plan with substantial emission reduction strategies in the form of a "Greenhouse Gas Emission Reduction Plan." See People v. County of San Bernardino, No. CIVSS 0700329 (Cal. Super. Ct. Aug. 28, 2007) (order regarding settlement).
295. STEVE WINKELMAN ET AL., CTR. FOR CLEAN AIR POLICY, COST-EFFECTIVE GHG REDUCTIONS THROUGH SMART GROWTH & IMPROVED TRANSPORTATION CHOICES, at v ("The price signal from a cap-and-trade system will not be effective in reducing VMT, due to market imperfections and limited transportation choices in many parts of the country." (citing STEVE WINKELMAN, TIM HARGRAVE & CHRISTINE VANDERLAN, CTR. FOR CLEAN AIR POLICY, TRANSPORTATION AND DOMESTIC GREENHOUSE GAS EMISSIONS TRADING (2000))).
296. U.S. Envtl. Prot. Agency, Climate Change-Waste: General Information on the Link Between Solid Waste and Greenhouse Gas Emissions, http://www.epa.gov/climatechange/wycd/waste/generalinfo.html (last visited Jan. 17, 2010).
297. ANNE CHOATE ET AL., U.S. ENVTL. PROT. AGENCY, WASTE MANAGEMENT AND ENERGY SAVINGS: BENEFITS BY THE NUMBERS 6 (2005), http://www.epa.gov/climatechange/wycd/waste/downloads/Energy%20Savings.pdf.
298. See, e.g., CITY OF BOSTON, CLIMATE: CHANGE 18 (2007), http://www.cityofboston.gov/climate/pdfs/CAPJan08.pdf (including a goal of increasing recycling of all materials by 2012)
299. CITY OF CHI., CHICAGO CLIMATE ACTION PLAN 36 (2008), http://www.chicagoclimateaction.org/filebin/pdf/finalreport/ccapreportfinal.pdf (setting a goal to reduce, reuse, or recycle ninety percent of the city's waste by 2020)
300. CITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING GLOBAL WARMING, at 23 (setting a goal to increase waste diversion from sixty-two to seventy percent by 2020)
301. CITY OF SAN DIEGO, CLIMATE CHANGE ACTION PLAN 6 (2005), http://www.sandiego.gov/environmental-services/sustainable/pdf/action_plan_07_05.pdf (proposing adoption of ordinances for demolition recycling, commercial paper recycling, and multiple family recycling).
302. Nat'l Inst. of Bldg. Scis., Whole Building Design Guide: Executive Order 13423 Technical Guidance - Construction Waste, http://www.wbdg.org/references/mou_cw.php (last visited Jan. 17, 2010) ("In 2003, the US EPA estimated roughly 164 million tons of C&D [construction and demolition] waste from buildings were generated in the US annually. Of this quantity, 9% was construction waste, 38% was renovation waste material, and 53% was demolition debris. C&D waste constitutes an estimated 25% to 40% of the national solid waste stream.").
303. City of Chi., Construction and Demolition Recycling, http://egov.cityofchicago.org/city/webportal/home.do (follow "City Departments" hyperlink; then select "Environment" hyperlink, followed by "Initiatives & Programs," "Recycling," and "Recycling" hyperlinks; then follow "Construction/Demolition Sites" hyperlink under "Commercial Recycling") (last visited Jan. 17, 2010).
304. S.F., CAL., ENVTL. CODE, ch. 14, § 1402(b) (2006), available at http://www.sfenvironment.org/downloads/library/ondemolitionordinancefinal.pdf.
305. City of Seattle, Ban on Recyclables in Garbage, http://www.seattle.gov/util/About_SPU/Recycling_System/History_&_Overview/Ban_on_Recyclables_in_Garbage/index.asp (last visited Jan. 17, 2010).
306. Salt Lake City Green, Climate Action Plan, http://www.slcgreen.com/CAP/current.htm, (last visited Nov. 15, 2009)
307. OFFICE OF SUSTAINABLE DEV., CITY OF PORTLAND, GLOBAL WARMING PROGRESS REPORT 26(2005), http://www.portlandonline.com/shared/cfm/image.cfm?id=112118.
308. CITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING GLOBAL WARMING, at 4.
309. CITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING GLOBAL WARMING at 23.
310. U.S. ENVTL. PROT. AGENCY, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990-2007, at fig.8-1. Both of these sources also emit nitrogen oxide, another greenhouse gas. Id. Meanwhile, municipal solid waste combustion also contributes to carbon dioxide emissions. Id.
311. It should be noted that some critics of landfill methane-to-power programs fear that mismanagement will lead to heightened release of toxic chemicals from landfills. See, e.g., ENERGYJUSTICE.NET, LANDFILL GAS FACT SHEET (2008), http://www.energyjustice.net/lfg/factsheet-lfg.pdf.
312. Salt Lake City Green, Climate. Action Plan, http://www.slcgreen.com/CAP/current.htm
313. see also Salt Lake City, Alternative Energy Projects in City Buildings, http://www.slcgov.com/slcgreen/energy/altEnergy.htm (last visited Jan. 14, 2010) ("Salt Lake City's Public Utilities Department began capturing methane, a byproduct of wastewater treatment, at the City's wastewater plant in 2005. This methane is used to power two large electrical generators, generating both electricity and heat needed to power treatment plant operations. Today, this co-gen facility produces almost 6 million kilowatt hours of electricity per year, reducing the City's GHG emissions by 2,700 tons annually.").
314. U.S. Envtl. Prot. Agency, Landfill Methane Outreach Program: Basic Information, http://www.epa.gov/lmop/basic-info/index.html (last visited Jan. 17, 2010).
315. U.S. ENVTL. PROT. AGENCY, CANDIDATE LANDFILLS, SORTED BY STATE AND LANDFILL NAME, http://www.epa.gov/lmop/documents/xls/candlfslmopdata.xls.
316. The total volume of waste was determined by removing all candidate landfills not owned by a local government from EPA's spreadsheet. This total landfill volume was then converted to megawatts of electricity using a conversion factor of 0.8 MW per million tons of waste. See Sarah J. Simon, Amanda R. Singleton & John F. Carter, Landfill Gas as Fuel for Combined Heat and Power, COGENERATION & DISTRIBUTED GENERATION J., Winter 2007, at 33, 35 ("As a rule of thumb, about 432,000 cubic feet per day of LFG is produced from every 1 million tons of MSW placed in a landfill, which can produce about 0.8 MW of electricity."); see also LANDFILL METHANE OUTREACH PROGRAM, U.S. ENVTL. PROT. AGENCY, AN OVERVIEW OF LANDFILL GAS ENERGY IN THE UNITED STATES (2009) (on file with author). The EPA provides a calculator that converts megawatts power produced from landfill gas into avoided emissions. U.S. ENVTL. PROT. AGENCY, 2010 LFGE BENEFITS CALCULATOR, http://www.epa.gov/lmop/documents/xls/lfge_benefitscalc.xls.
317. These figures were generated from the EPA's website. U.S. Envtl. Prot. Agency, Clean Energy: Greenhouse Gas Equivalencies Calculator, http://www.epa.gov/RDEE/energy-resources/calculator.html (last visited Jan. 18, 2010).
318. Sarah J. Simon, Amanda R. Singleton & John F. Carter, Landfill Gas as Fuel for Combined Heat and Power, COGENERATION & DISTRIBUTED GENERATION J., at 33.
319. Connie Farrow, Methane from Neighboring Landfill Heats Up High School, FREELAN LANCE STAR, Apr 3, 2007, at c3
320. INT'L COUNCIL FOR LOCAL ENVTL. INITIATIVES, U.S. CITIES FOR CLIMATE PROTECTION PROGRESS REPORT, at 10.
321. Specifically it had 38,971 general purpose local governments. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, GOVERNMENT UNITS IN 2002 1 (2002), http://ftp2.census.gov/govs/cog/2002COGprelim_report.pdf. This figure includes 3034 counties, 19,431 municipalities and 16,506 townships. Id. An additional 13,522 school districts and 35,356 special district governments brings the total of local governments in the United States to 87,849. Id.
322. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2006 PUBLIC EMPLOYMENT DATA: LOC GOVERNMENTS, http://ftp2.census.gov/govs/apes/06locus.txt
323. U.S. CENSUS BUREAU, U.S. DEP' LIAN EMPLOYMENT BY FUNCTION: DECEMBER 2006 (2006), http://ftp2.census.gov/govs/apes/06fedfun.pdf.
324. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, STATE GOVERNMENT EMPLOYMENT DATA:MARCH 2006 (2006), http://ftp2.census.gov/govs/apes/06stus.txt
325. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, COMPENDIUM OF PUBLIC EMPLOYMENT: 2002, at 1 (2004), http://www.census.gov/prod/2004pubs/gc023x2.pdf
326. CITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING GLOBAL WARMING, at 14.
327. See L.A. Dep't of Water & Power, Our Service and History, http://www.ladwp.com/ladwp/cms/ladwp000508.jsp (last visited Jan. 18, 2010)
328. The city's emissions inventory includes all sources of emissions directly controlled or operated by the City of Los Angeles. CITY OF L.A., supra note 104, at 14. Its government operations include the Port of Los Angeles, Los Angeles World Airports, and the Los Angeles Department of Water & Power (LADWP). Id. Because the city owns and operates LADWP, it takes responsibility for the utility's emissions, which account for ninety-eight percent of its municipal carbon footprint, although it does not separately list emissions from use of electricity for city operations to avoid double counting. Id. (This Article presumes this to mean that the city takes responsibility for all electricity use, whether it goes to residential, commercial, or industrial uses, because LADWP is municipally operated.) However, it excludes emissions from rts, such as aircraft and ship emissions. Id.
329. MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, SURVEY ON MAYORAL LEADERSHIP ON CLIMATE PROTECTION.
330. See, e.g., AMANDA EICHEL, OFFICE OF SUSTAINABILITY & ENV'T, CITY OF SEATTLE, SEATTLE CLIMATE PROTECTION INITIATIVE (2007), http://www.mayorsinnovation.org/pdf/Article7_CC.pdf (describing Seattle's campaign to save paper, which reduced paper consumption in 2006 by twenty-one percent, thereby eliminating 125.4 tons of greenhouse gas emissions).
331. Green Power P'ship, U.S. Envtl. Prot. Agency, Partner List, http://www.epa.gov/grnpower/partners/index.htm (last visited Jan. 18, 2010). GPP works with governments at all levels, as well as with businesses, universities, and nonprofits. Id.
332. GREEN POWER P'SHIP, U.S. ENVTL. PROT. AGENCY, TOP 20 LOCAL GOVERNMENT PARTNER LIST: OCT. 6, 2009 (2009), http://www.epa.gov/grnpower/documents/top20localgov_oct2009.pdf. These rankings are updated on a quarterly schedule.
333. This figure results is obtained by putting the kilowatt hours figure into the EPA's Greenhouse Gas Equivalencies Calculator. U.S. Envtl. Prot. Agency, supra note 269.
334. Green Power P'ship, U.S. Envtl. Prot. Agency, 100% Green Power Purchasers, http://www.epa.gov/grnpower/toplists/partner100.htm (last visited Jan. 18, 2010). Updated rankings are available on a quarterly schedule.
335. Houston participates in the C40, C40 Cities Climate Leadership Group, supra note 30, but has not signed the Mayors Agreement, Mayors Climate Prot. Ctr., U.S. Conference of Mayors, List of Participating Mayors, http://www.usmayors.org/climateprotection/list.asp (last visited Nov. 25, 2009).
336. GREEN POWER P'SHIP, U.S. ENVTL. PROT. AGENCY, TOP 20 LOCAL GOVERNMENT PARTNER LIST: OCT. 6.
337. Lindsay Chapman, Houston Turns to Wind for Power, Savings, FINDING DULCINEA, July 3, 2008, http://www.findingdulcinea.com/news/business/July-08/Houston-Turns-to-Wind-for-Power--Savings.html.
338. GREEN POWER P'SHIP, U.S. ENVTL. PROT. AGENCY, TOP 20 LOCAL GOVERNMENT PARTNER LIST: JULY 7, 2009 (2009) http://www.epa.gov/grnpower/documents/ top20localgov_july2009.pdf
339. Ford Gunter, City of Houston a Leader in Purchasing Green Power, HOUSTON BUS. J., Jan. 28, 2008, http://houston.bizjournals.com/houston/stories/2008/01/28/daily10.html.
340. Chapman, supra note 300.
341. GREEN POWER P'SHIP, supra note 294.
342. MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, THE POWER OF 86 MILLION AMERICANS: 1000 MAYORS COMMITTED TO CLIMATE ACTION 20 (2009), http://www.usmayors.org/climateprotection/documents/2009-cityprofiles.pdf.
343. L.A. Dep't of Water & Power, supra note 281.
344. L.A. Dep't of Water & Power, Renewable Energy Policy, http://www.ladwp.com/ladwp/cms/ladwp005864.jsp (last visited Nov. 26, 2009).
345. Mayor Antonio Villaraigosa, City of L.A., Environment: Five Goals, Four Years, http://mayor.lacity.org/Issues/Environment/Next4/index.htm (last visited Jan. 18, 2010) ("Our second goal for the next four years is to put LA on a path to permanently break our addition [sic] to coal. Moving forward, we're aiming to get 40 percent of our power from renewable sources by 2020 and 60 percent carbon-free by the end of the next decade.").
346. EICHEL, supra note 291. A 2007 Washington Supreme Court decision complicated the utility's efforts to maintain its zero net emissions status by holding th at state law precluded Seattle from using utility fees to buy carbon offsets because this exceeded its proprietary powers. Okeson v. City of Seattle, 150 P.3d 556 (Wash. 2007). In response, the Washing to n Legislature passed and the Governor signed House Bill 1929, expressly reversing the result reached by the court and allowing utilities to bank, credit, or trade greenhouse gas offsets or credits. WASH. REV. CODE § 35.92.430 (2008). 310. Energy Star, U.S. Envtl. Prot. Agency & U.S. Dep't of Energy, Learn About LEDs, http://www.energ ystar.gov/index.cfm?c=lighting.pr_what_are (last visited Nov. 26, 2009); se e also MAYORS CLIMATE PROT. CTR., supra note 305, at 27 (discussing the large energy and cost savings and emissions reductions that Los Angeles will realize by adopting LED lighting).
347. Bureau of Street Lighting, City of L.A., Facts and Figures About Street Lighting in Los Angeles, http://www.bsl.lacity.org/ (follow "Information" hyperlink; the click on "Facts and Figures") (last visited Jan. 18, 2010).
348. L.A. Almanac, City of Los Angeles Adopted Budget - 2004-2005, http://www.laalmanac.com/government/gx06.htm (last visited Jan. 18, 2010).
349. Bureau of Street Lighting, City of L.A., Basic Street Lighting Information, http://www.bsl.lacity.org/slinfo2.htm (last visited Feb. 4, 2010).
350. Clinton Hails L.A.'s Shift to LED Street Lights, NBC L.A., Feb. 17, 2009, http://www.nbclosangeles.com/news/green/clinton-hails-las-shift-to-led-street-lights.html. According to Lighting Components LED Corp., LED lights approach eighty percent efficiency (the rate at which energy is converted to light), whereas incandescent bulbs operate at about twenty percent efficiency. Lighting Components LED Corp., The Adv antages of LED Lights, http://www.lc-led.com/articles/ledlights.html (last visited Jan. 18, 2010). LEDs also last twenty to fifty times longer than incandescent bulbs.
351. Frank Shinneman, Cool and Efficient LED Lights: Their Time Is Now, GREENBANG, July 3, 2009, http://www.greenbang.com/cool-and-efficient-led-lights-their-time-is-now_10582.html.
352. Clinton Hails L.A.'s Shift to LED Street Lights, supra note 314.
353. ROBERT T. GROW, GREATER WASH. BD. OF TRADE, ENERGY EFFICIENT STREETLIGHTS: POTENTIAL R G W ' C F 19 tbl.6 (2008), http://rrc.dc.gov/green/lib/green/pdfs/Energy_Efficient_Street_Lights.pdf.
354. Press Release, LED City, Ann Arbor Embraces LED Technology to Reduce Consumption, Greenhouse Gas Emissions (Oct. 16, 2007), http://ledcity.org/press-room/ann-arbor-joins-led-city.html.
355. Press Release, LED City, Fairview, Texas, Joins Cree LED City® Program (July 23, 2009), http://ledcity.org/fairview_joins.htm (quoting Fairview Mayor Sim Israeloff). Propelled by the town's aggressive stance against light pollution, the four-lane Fairview Parkway was designed specifically for LEDs. Id. Though the community boasts just over 8000 residents, it expects to avoid 1000 pounds in carbon emissions per year, and to save $250,000 over the lifetime of the bulbs. Town of Fairview, Tex., Our Community, http://www.fairviewtexas.org/ (follow "Our Community" hyperlink) (last visited Jan. 17, 2010).
356. Salt Lake City Corp., Current and Completed Sustainability Initiatives, www.newkirkcenter.uci.edu/Bennett_handout.pdf (last visited Jan. 18, 2010).
357. C40 Cities Climate Leadership Group, Best Practices: Lighting, http://www.c40cities.org/bestpractices/lighting/chicago_led.jsp (last visited Jan. 18, 2010). Thus far, only about 1000 intersections have actually been retrofitted, id., though the city plans to use American Recovery and Reinvestment Act (ARRA) funds to retrofit an additional 800 sites, COMM. ON FINANCE & COMM. ON BUDGET & GOV'T OPERATIONS, CITY OF CHI., AMERICAN RECOVERY AND REINVESTMENT ACT 11 (2009), http://www.explorechicago.org/etc/medialib/explore_chicago/doit/special_pages.Par.95689. File.dat/ARRAJointBudgetFinanceCommittee.pdf.
358. NAT'L TRANSP. OPERATIONS COAL., NATIONAL TRAFFIC SIGNAL REPORT CARD: EXECUTIVE SUMMARY 2 (2007), http://www.ite.org/reportcard/NTS RC%20Exec%20Summary%20final.pdf. The Report also finds that improperly timed lights contribute to excess gas consumption on the order of twenty-six gallons per year per traveler. Id. at 1. This is simply a question of better management.
359. LED City claims a nationwide switch to LED streetlights could eliminate 258 million metric tons of CO2 emissions, save over $200 billion, and reduce electricity demands from lighting by one-third. LED City, Welcome to LED City, http://www.ledcity.org/ (last visited Nov. 26, 2009). It is worth noting that, though LED City calls itself a "community of government and industry parties working to evaluate, deploy and promote LED lighting technology across the full range of municipal infrastructure," id., it is essentially the project of Cree, Inc., a manufacture r of LEDs and related products. See LED City, Press Room, http://ledcity.org/press-room/ (last visited Nov. 26, 2009). Altho ugh this might suggest bias in p rojected emissio ns savings, its figures match those of provided by the Department of Ener gy. See supra no te 311.
360. MAYORS CLIMATE PROT. CTR., supra note 305, at 27.
361. Salt Lake City Corp., supra note 319. 327. EICHEL, supra note 291.
362. MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, CLIMATE PROTEC TION STRATEGIES AND BEST PRACTICES GUIDE 3 (2007), http://usmayors.org/climateprotection/documents/2007bestpractices-mcps.pdf.
363. Pres s Release, Office of the Mayor, City of N.Y., Mayor Bloomberg Presents PlaNYC: A Greener, Greater New York, (Apr. 22, 2007), http://www.nyc.gov/html/om/html/2007a/pr119-07.html.
364. Dan Hendrick, New York City Council Passes Climate Protection Act, N.Y. LEAGUE OF CONSERVATION VOTERS, Nov. 29, 2007, http://www.nylcv.org/node/2737/print.
365. PLANYC, CITY OF N.Y., A GREENER, GREATER NEW YORK 135 (2007) http://www.nyc.gov/html/planyc2030/downloads/pdf/full_report.pdf.
366. Despite increases in population, per capita energy use, and on-road vehicle miles driven, New York's city-wide carbon footprint in 2007 was approximately 2.5 percent lower than in 2005. PLANYC, CITY OF N.Y., INVENTORY OF NEW YORK CITY GREENHOUSE GAS EMISSIONS 5 (2009), http://www.nyc.gov/html/planyc2030/downloads/pdf/inventory_nyc_ghg _ emissions_2008_-_feb09update_web.pdf. Since PlaNYC was only released in April 2007, this does not reflect the plan's impact on greenhouse gas emissions; it does, however, indicate a positive foundation upon which PlaNYC can be implemented effectively. Id.
367. Press Release, Office of the Mayor, City of N.Y., Mayor Bloomberg Announces Long-Term Plan to Reduce Municipal Energy Consumption (July 7, 2008), http://www.nyc.gov/html/om/html/2008b/pr264-08.html ("[L]eaking pipes, clogged steam traps, and inefficient air distribution, pumps, or fan systems will be systematically identified and repaired. The plan also includes retrocommissioning, a process that identifies the most wasteful inefficiencies that technicians can correct in a cost-effective manner. Energy-saving projects at wastewater treatment plants account for the second largest opportunity for greenhouse gas reductions, 17 percent of the total.") [hereinafter PlaNYC Announcement].
368. PLANYC, CITY OF N.Y., PROGRESS REPORT 2009: A GREENER, GREATER NEW YORK 30 (2009), http://www.nyc.gov/html/planyc2030/downloads/pdf/planyc_progress_report_2009.pdf. Not surprisingly, money does present one potential stumbling block. For example, the state legislature recently failed to bring one relied-upon measure (congestion pricing) to a vote, thereby losing promised federal funds. See The PlaNYC Report Card, CITY HALL, Apr. 27, 2009, http://www.cityhallnews.com/newyork/article-671-the-planyc-report-card.html; see also PlaNYC, City of N.Y., Transportation Initiatives: Pilot Congestion Pricing, http://www.nyc.gov/html/planyc2030/html/plan/transportation_congestion-pricing.shtml (last visited Jan. 18, 2010).
369. PlaNYC Announcement, supra note 334 ("The City is expected to break even on its investment in 2013 on an annual cash flow basis, and by fiscal year 2015 it is projected that the City will have saved more on its energy bills than it has spent on all the planned investments to that point.").
370. Specifically, New York City government CO2 emissions in fiscal year 2007 equaled 4.3 million metric tons (MMT) of carbon dioxide equivalent, with city-wide emissions of 61.5 MMT. PLANYC, supra note 333, at 15. An update to this inventory is to be published annually.
371. PLANYC supra note 332, at 130.
372. INT'L COUNCIL FOR LOCAL ENVTL. INITIATIVES, supra note 98. One result of the ongoing monitoring that can be observed among the longer-term members is the opportunity to iterate their programs.
373. ("[This] is equivalent to the emissions produced annually by: 4 million passenger vehicles[;] 1.8 million households[; and] 2.1 billion gallons of gasoline.").
374. Ion Bogdan Vasi, Organizational Environments, Framing Processes, and the Diffusion of the Program to Address Global Climate Change Among Local Governments in the United States, 21 SOC. FORUM 439 (2006) (describing how ICLEI's framing of climate change programs in terms of financial savings has assisted in the recru iting of local government participants).
375. See COMM'N FOR ENVTL. COOPERATION, supra note 131, at 54 (describing how separate capital and operating budgets create accounting scenarios wh ere the energy cost savin gs cannot be used to offset increased initial green building costs).
376. U.S. Conference of Mayors, The Energy Efficiency and Conservation Block Grant (EECGB), http://www.usmayors.org/climateprotection/list.asp (last visited Feb. 4, 2010); see also Kevin McCarty, EECBG Spending Plans Begin to Take Shape in Cities Across U.S., U.S. MAYOR NEWSPAPER, Apr. 2009, http://usmayors.org/usmayornewspaper/ 27, docu ments/04_27_09/pg3_eecbg.asp.
377. U.S. Dep't of Energy, Energy Efficiency & Conservation Block Grant Program, http://www.eecbg.energy.gov/about/default.html (last visited Nov. 26, 2009). 345. Id.
378. Derived from charts showing the allocation of funds by program for each state and the District of Columbia at Recovery.org, Economic Recovery Spending by State, http://www.recovery.org/for_taxpayers.aspx (follow "Graphs: Spending by Program for Each State" and click on each state group on the right) (last visited Feb. 4, 2010).
379. USCM Presses Senators on Energy Block Grant, Climate Change, AM. CITY & COUNTRY, Aug. 20, 2009, http://americancityandcounty.com/topics/green/uscm-lobby-day-20090820/.
380. See supra note 57 and accompanying text.
381. See Lutsey, supra note 24, at 8-9. By way of comparison, the cap-and-trade proposal passed by the House of Representatives, the American Clean Energy and Security Act of 2009, targets a twenty percent reduction in U.S. emissions by 2020 as compared with 2005 levels. See H.R. 2454, 111th Cong. § 702 (2009) ("The goals of the Safe Climate Act are to reduce steadily the quantity of United States greenhouse gas emissions such that... in 2020, the quantity of United States greenhouse gas emissions does not exceed 80 percent of the quantity of United States greenhouse gas emissions in 2005....").
382. William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547 (2007).
383. Pursuant to Houston Mayor Bill White's proposal, for example, the Houston City Council voted unanimously to amend its commercial building code, with Houston's Construction Industry Council supporting the measure as a "landmark step" for the city. Carolyn Feibel, City OKs "Green" Energy Code for New Businesses, HOUSTON CHRON., Apr. 30, 2008, available at http://www.cleanenergyfortexas.org/news_houstonchronicle_43008.html.
384. The total impact awaits further empirical research not yet available 358. U.S. Green Bldg. Council, About USGBC, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=124 (last visited Jan. 14, 2010).
385. See Stavins, supra note 59, at 314-15.
386. The IPCC reports that "[a] number of advanced houses have been built in various cold-climate countries around the world that use as little as 10% of the heating energy of houses built according to the [existing] local national building code." Blok et al., supra note 120, at 395.
387. While the IPCC estimates that twenty-nine percent of emissions can be reduced at a cost savings, it further calculates that "at least 3% of baseline emissions can be avoided at costs up to 20 US$/tCO2 and 4% more if costs up to 100 US$/tCO2 are considered." Id. At 389.
388. See supra note 143 and accompanying text. 363. See Gruder, supra note 149.
389. CAL. CODE REGS. tit. 24, pt. 6 (2007).
390. See Cal. Energy Comm'n, California's Energy Efficiency Standards for Residential and Nonresidential Buildings, http://www.energy.ca.gov/title24/ (last visited Nov. 27, 200 9) ("California's building effic iency standards (along with those for energy efficient appliances) have saved more than $56 billion in electricity and natural gas costs since 1978. It is estimated the standa rds will save an additional $23 billion by 2013."). Researchers have noted Title 24's contribution to employment growth and prosperity in the state. See, e.g., DAVID ROLAND-HOLST, CTR. FOR ENERGY, RES., & ECON. SUSTAINABILITY, UNIV. OF CAL. BERKELEY, ENERGY EFFICIENCY, INNOVATION, AND JOB CREATION IN CALIFORNIA 18-24 (2008), http://are.berkeley.edu/~dwrh/CERES_Web/Docs/UCB%20Energy%20Innovation%20and%20Job%20Creation%2010-20-08.pdf.
391. California Green Building Standards Code, CAL. CODE REGS. tit. 24, pt. 11, § 101.7 (2007). California's green building code goes beyond energy efficiency to address water usage and other sustainability issues. See, e.g., CAL. CODE REGS. tit. 24, pt. 11, §§ 601-605, 701-710, 801-808 (2007).
392. See Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 171-72 (2001) (holding that the Army Corps lacked authority to regulate intrastate development); see also Rapanos v. United States, 547 U.S. 715, 738 (2006); JUERGENSMEYER & ROBERTS, supra note 140, § 8.2.
393. See Briffault, supra note 176, at 1; see also Barron, supra note 107, at 2259-60.
394. See, e.g., METRO. POLICY PROGRAM, BROOKINGS INST., A BRIDGE TO SOMEWHERE: RETHINKING AMERICAN TRANSPORTATION FOR THE 21ST CENTURY 50-51 (2008), http://www.brookings.edu/~/media/Files/rc/reports/2008/06_transportation_puentes/06_transportation_puentes_report.pdf.
395. Id.; see also MARILYN A. BROWN ET AL., METRO. POLICY PROGRAM, BROOKINGS INST., SHRINKING THE CARBON FOOTPRINT OF METROPOLITAN AMERICA 35 (2008), http://www.brookings.edu/~/media/Files/rc/reports/2008/05_carbon_footprint_sarzynski/carbonfootprint_report.pdf.
396. See supra Part II.B.4.c (discussing ARRA).
397. BROWN ET AL., supra note 370, at 53.
398. See Office of the Governor, Senate Bill 375: Redesigning Communities to Reduce Greenhouse Gases, http://gov.ca.gov/fact-sheet/10707/ (last visited Feb. 4, 2010).
399. S.B. 375 § 1(c), 2008 Leg., Reg. Sess. (Cal. 2008).
400. MAYORS CLIMATE PROT. CTR., U.S. CONFERENCE OF MAYORS, THE IMPACT OF GAS PRICES, ECONOMIC CONDITIONS, AND RESOURCE CONSTRAINTS ON CLIMATE PROTECTION STRATE GIES IN U.S. CITIES 4 (2008), http://www.mayors.org/pressreleases/uploads/ClimateSurvey.pdf.
401. Eric Sofge, Why Shovel-Ready Infrastructure Is Wrong (R ight Now), POPULAR MECHA N ICS, Feb. 5, 2009, http://www.popularmechanics.com/technology/industry/4302578.html.
402. For example, EPA's Landfill Methane Outreach Program encourages and facilitates methane capture programs in partnership with states, local governments, and private companies. U.S. Envtl. Prot. Agency, Landfill Methane Outreach Program (LMOP): Basic Information, http://www.epa.gov/lmop/basic-info/index.html (last visited Jan. 18, 2010). South Carolina established a twenty-five percent tax credit to support methane technology. U.S. Envtl. Prot. Agency, Combined Heat and Power Partnership: Funding Resources, SC Landfill Methane Tax Credit, http://www.epa.gov/chp/funding/ funding/sousclandfillmethanetaxcredit.html (last visited Jan. 18, 2010). California identified landfi methane control and capture a an early ll s a ction in scoping for its Global Warming Solutions Act of 2006, and is contracting with local governments on related pilot projects. CAL. AIR RES. BD., CLIMATE CHANGE SCOPING PLAN 26-27, 62 (2008), http://www.arb.ca.gov/cc/scopingplan/document/adopted_scoping_plan.pdf
403. See Simon, Singleton & Carter, supra note 268, at 38 tbl.1.
404. 40 C.F.R. §§ 60.30c-36c (2009).
405. Engel, supra note 89, at 179.
406. See, e.g., DeShazo & Freeman, supra note 39, at 1548-50 (describing the role of political struggles between potential targets in shaping federal climate change policy).
407. Freeman & Farber, supra note 91, at 797.