Teaching Environmental Law in Context: The Role of State Climate Policy in the Context of Federal Retrenchment

This post is part of a series related to Teaching Environmental Law in Context, a recent book by Member Scholars Rebecca Bratspies and Carmen Gonzalez.

For the average law student, climate change looms as an existential threat, appearing simultaneously catastrophic and oddly invisible. Teaching Environmental Law in Context by Rebecca Bratspies and Carmen Gonzalez documents the federal government’s failure to adopt comprehensive climate legislation and, to the extent that prior administrations had adopted measures under existing laws like the Clean Air Act, the Trump administration’s evisceration of those measures. Can the states pick up the slack? Given most states’ history of weak environmental regulation, driven by their fear of losing economic development and their lack of resources, what can we expect?

It turns out that the states have long been leaders in the climate space. They adopted greenhouse gas emission targets and control measures before the federal government moved and can continue to drive change during this hiatus in federal action.

State Climate Initiatives

To illustrate the kinds of efforts many states have undertaken, Teaching Environmental Law in Context highlights two state climate leaders, California and New York. It notes California’s commitment to achieve economy-wide carbon neutrality and, more specifically, carbon-free electricity by 2045, the state’s ban on the sale of new gas-powered cars by 2035 (an effort thwarted by Congress), and its corporate greenhouse gas emission reporting requirements. Similarly, a New York statute commits the state to reducing greenhouse gas emissions by 85 percent by 2050 and 100 percent renewable electricity by 2040.

Both California and New York commit to allocating a substantial portion of state clean energy spending toward frontline and underserved communities, as discussed further below. Environmental justice working groups in California and New York have played a role in the development of each state’s climate policies.

Key Aspects of State Climate Governance

Several features of state action are worth highlighting as key actions for achieving a clean and just energy transition. We tend to think of environmental law as largely regulatory — as imposing limits on pollution or requiring entities to consider or remediate environmental harms. But a clean energy transition will require careful planning, coordination among distinct sectors, and government funding.

California and New York both require climate action planning, avoiding the risk of ad hoc and piecemeal initiatives. The states’ respective legislatures required agencies to engage in comprehensive, multi-sector planning processes to explore and assess how different puzzle pieces could be assembled to achieve climate targets. The scoping plans allowed each state to evaluate the technological, economical, and equity implications of different pathways to achieving desired emissions reductions. While the planning processes were not perfect, they nonetheless fostered public analysis and debate about the best paths forward.

Another feature of California and New York’s approach to climate policy is the use of multiple and sometimes overlapping pollution control mechanisms. The states have their share of regulatory measures, like California’s renewable portfolio standards for utility generation, controls on oil and gas production and distribution, and controls on gases with a high global-warming potential. But regulations are complemented by other measures. California’s cap-and-invest program provides a cap on the state’s overall emissions, which creates a backstop limiting the state’s overall emissions regardless of trends in specific sectors. Most sources covered by the cap-and-invest program, like utilities, must meet their respective regulatory requirements and must also hold allowances to ensure that the system as a whole does not exceed the statewide cap.

Funding a clean energy transition for low-income households and communities is another critical aspect of these states’ policies. To achieve the all-out decarbonization that climate scientists say we need, low-income communities will require funding for electrification and clean transportation — by definition, they don’t have the resources to transition on their own. Issues of reparative justice aside, we all receive the climate benefits of these decarbonization investments.

California law requires that at least 35 percent of the revenue from the state’s cap-and-invest program benefit “disadvantaged” communities. By the state’s count, $9.2 billion has benefited disadvantaged communities as of 2024, comprising 73 percent of the cap-and-invest program’s revenue. Moreover, the state funds climate justice programs through non-cap-and-invest resources as well. New York has gone a step further, requiring that at least 35 percent of the benefits of the states’ climate funding, not just a percentage of cap-and-invest funds, must go to disadvantaged communities.

Bratspies and Gonzalez take a dim view of carbon capture and storage (CCS), labeling it a dangerous and “false” solution. They rightly observe that CCS advocates are touting the technology to continue reliance on fossil fuels, a reliance that would do little to improve — and could in fact worsen — air pollution that falls disproportionately on marginalized communities. And they observe that carbon dioxide pipelines create their own risks.

But California has taken a more qualified approach. With a target to reduce greenhouse gas emissions by 85 percent and to fully decarbonize the electricity sector, the state is not using CCS as a way to maintain reliance on fossil fuels. In light of modeling that suggests that the state may not be able to eliminate all emissions, and recognizing a need to not only eliminate emissions but reduce carbon that has already been released, the state legislature and the state’s scoping plan have included CCS as a strategy. Rather than leaving the planning and regulatory process to existing laws that may not be well-suited to carbon storage, the state has initiated regulatory proceedings to address carbon storage — proceedings that could provide a model for other states.

Teaching about the State Role in Climate Policy

California, New York, and several other states are climate leaders, while others have been less active or even hostile to climate action. You can ask students to explore whether their state has a climate action plan, and/or more specific requirements and policies, like clean energy standards for their electricity sector, or energy efficiency programs. If you’re in a state that resists climate action, you can ask students to think about whether there are other ways to advocate for clean energy solutions, like traditional pollution reduction, reliability, and affordability.

Conclusion

Even though most environmental law courses understandably focus on federal law, federal retrenchment has made state action increasingly important. The text’s discussion of state climate policies is a welcome resource for environmental law professors confronting the current state of U.S. environmental politics.