On the politics of constitutional law: an environmental case study of the role of politics and economics in constitutional appeals

Abstract The U.S. government has responded to concern about climate change through regulation of carbon-dioxide emissions by the Environmental Protection Agency under the Clean Air Act. Regulation of the electric power industry has been central to the fight to reduce carbon-dioxide emissions, but these regulations have been challenged by constitutional appeals that have resulted in episodic advances and reversals. Grounds for constitutional appeal of environmental laws are many, but at their core is the question of whether a given law is consistent with the constitution. If constitutionality is central to the positions the attorneys general take on appeals of environmental regulations, political and economic factors should not affect their positions. Empirical evidence presented in this case study shows, however, that these factors are correlated with the positions the attorneys general of the U.S. states and District of Columbia took towards constitutional appeals of regulations of carbon-dioxide emissions from the electric power industry. At a broader level, these findings shed useful light on the question of how constitutional appeals are brought.