By Robert L. Glicksman[*]
As 2007 drew to a close, climate change dominated the environmental law and policy agenda. A perfect storm of events has focused attention both in the media and on Capitol Hill, to an unprecedented degree, on the need to address climate change.[1] These events include a series of reports on climate change issued by the Intergovernmental Panel on Climate Change (IPCC) throughout 2007, the award of the Nobel Peace Prize to former Vice President Al Gore and the IPCC, the devastation wrought by Hurricane Katrina and discussion among scientists about whether climate change tends to increase hurricane intensity, the wildfires in southern California, a series of international climate change conferences culminating in a year-end conference under the United Nations Framework Convention of Climate Change[2] in Bali, identification of links between climate change and national security,[3] and the steady stream of scientific reports documenting the degree to which climate change has already begun to alter the planetary environment in ways that often exceed previous predictions.[4] Late in 2007, a long-time congressional supporter of tougher fuel efficiency standards for automobiles, when discussing an energy bill to address aspects of climate change, stated: “Things are now dramatically and in a telescoped time frame all coming together to address these issues that have been on a 30-year detour.”[5]
Professor Victor Flatt’s essay Taking the Legislative Temperature[6] distills the policy issues reflected in the various bills on climate change pending near the end of the first session of the 110th Congress. The issues he covers deal primarily with defining the substantive goals of climate change legislation and selecting appropriate policy instruments to achieve them. This Essay focuses more on the institutional design of a climate change regime than on the kinds of substantive choices dealt with by Professor Flatt. Professor Flatt proceeds on the premise that Congress almost certainly will adopt legislation to address climate change soon, although the form of that legislation is uncertain. This Essay, which responds to his, also operates on the assumption that Congress will act. It deals largely with the question of who gets to define the goals of climate change legislation and select the means of achieving them. These institutional design questions involve determining how much discretion Congress should provide to those responsible for implementing climate change policy and determining who gets to exercise it. The issues are familiar because discretion “lies at the root of administrative law doctrines and controversies.”[7]
