Tomorrow’s Climate Law, Today

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do much to put the United States on a better course to reach Paris Climate Agreement targets. But forcing emitters of greenhouse gases to internalize the costs of their emissions — politically difficult as it may be — will also be necessary to avert a climate catastrophe. When put to a vote, calls for these kinds of direct controls of emissions almost always yield the same, predictable answer: not today. In this Article, I explore a potential change of approach that holds promise for surmounting these persistent political roadblocks to climate regulation and paving the way for binding limits on greenhouse gas emissions. The strategy builds on a well-known but underutilized device: sunrise lawmaking. Instead of writing laws and regulations that bind in the present, legislators using a sunrise deliberately delay the onset of any consequences for a significant period of time and, in so doing, buy political flexibility to take public-regarding action. This device holds enormous promise for dealing with climate law’s inherent intertemporal public choice problem — the fact that the costs of climate action land today while the benefits are realized only far in the future, when many present-day policymakers may not even be alive. While these dynamics doom most ordinary climate regulations right out of the gate, a climate sunrise sidesteps the present-day costs of action but starts a ticking clock that will culminate in stringent decarbonization obligations and steep penalties for noncompliance at some point in the future. Moreover, although a climate sunrise could always be rescinded, the same political cushion that enables enactment would serve as a buffer to rescission until closer to the sunrise, allowing the sunrise critical time to become entrenched in politics, economics, and law. The climate sunrise device is not only well suited to evade the political strictures that predictably stall climate regulation; it is also a useful way of structuring and properly incentivizing an industrial transition. While a climate sunrise would not formally require any mitigation action until later in time, the incentives would be to prepare for the possibility of an eventual sunrise and to not save all compliance until the last minute. Moreover, simply encoding society’s expectations of a zero-emissions future would harness law’s expressive powers, leading to better coordination of needed transitions. In sum, there is much that a climate sunrise would do to complement existing industrial policy strategies for decarbonization even before it formally binds. Given the constraints on more present-oriented lawmaking to address the climate crisis, policymakers would do well to turn at least some of their efforts toward defining tomorrow’s climate law today.