As the Green New Deal continues to attract attention on both the left and right, a key element has been missing from the conversation: What the law behind all these big ideas might actually look like. The Green New Deal, if there is to be one, won't just be a resolution like the one introduced by Rep. Alexandria Ocasio-Cortez, D-N.Y., and endorsed by most Democratic presidential candidates. And the systemic changes it calls for simply cannot be accomplished by executive fiat or court order. Ultimately, it will be a 500-page piece of federal legislation. Here are five legal principles that should guide it:
1. Go big
The GND resolution is enormously ambitious. It recognizes that the goal of Congress must be to "achieve net-zero greenhouse gas emissions" and proposes to accomplish this through a 10-year process that would include "meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources," upgrading all buildings for energy efficiency, and the widespread electrification of vehicles and heating systems. It also calls for nature-based solutions to climate change, such as land preservation, afforestation and soil management. Additional first order goals acknowledge the great and unequal threats climate change poses to American lives and include providing all people of the United States with health care, housing and economic security.
Critics have lambasted this ambition. The proposal has been called unrealistic and infeasible by some in the political center and center-left, and stupid, dumb, evil, a socialist con game and a communist manifesto by some on the right. But, from a drafting perspective, the GND's scope, and its visionary language, would serve a practical purpose. What Congress says about the nature of the problem, its purpose in taking action and the range of solutions will serve as a lodestar for future generations. It will set the parameters for government action and influence the course of corporate behavior decades into the future. The key innovation of the GND is its recognition that climate change is locked in, and that our resilience to it depends not only on reducing emissions but also increasing social and economic opportunity for everyone. By going big, the GND can offer a new vision of environmental law fit for the Anthropocene.
2. Be specific
A report issued by the Intergovernmental Panel on Climate Change last fall concludes that we have about a decade to make steep cuts to greenhouse gas emissions, and until midcentury to achieve net-zero emissions, to avoid catastrophic changes in the climatic system. A congressional punt, which would delegate to the executive branch the work of developing a plan, proposing it, taking comments, finalizing it and then defending it in court, would occupy at least half of that time. And it would leave decisions about whether the agencies' eventual plan is even legal to agency heads appointed by the White House and the Supreme Court. Neither of those seems like a good option at the moment.
If Congress is going to legislate it must answer questions both major and minute about how and when we will reduce our climate footprint and increase our resilience to climate impacts. The Waxman-Markey bill (which stalled in the Senate in 2010) gives some idea of what this could look like. That bill detailed a renewable electricity standard for utilities, a cap on nationwide greenhouse gas emissions, a cap-and-trade program, new energy efficiency standards, a worker transition program, and funding for research and development of new technologies. The GND should seek to go even deeper and address areas left alone by Waxman-Markey — for instance, prohibiting fossil fuel production on public lands, and requiring that states, cities and corporations assess, disclose and prepare for climate risks. And in every instance it should be as specific as possible.
3. Set deadlines
Congress should establish near-term, binding deadlines for administrative action and compliance by entities regulated by the GND. Other statutes have done this: The Clean Water Act of 1972 gave polluters five years to install specific pollution control technologies. The Clean Air Act of 1972 required that states achieve compliance with air quality standards by 1977. The Clean Air Act Amendments of 1990 required that the largest power plants deal with acid rain pollution by 1995. The Energy Policy and Conservation Act of 1975 set numerous deadlines for the Department of Energy to establish energy efficiency standards for residential and commercial appliances. The Hazardous and Solid Waste Amendments of 1994 established permitting deadlines for hazardous waste facilities.
Of course, federal agencies miss deadlines. States miss deadlines. Cities miss deadlines. Companies miss deadlines. Everyone misses deadlines. Congress must counteract this tendency with what are known in the field as "hard hammers." A civil penalty of $50,000 per day of noncompliance should be enough to motivate polluters, as might an absolute prohibition against operating for those who fall too far behind. Lawsuits should be an option, as well. Such measures won't just ensure compliance. They'll also send important messages: Time is of the essence. This is a priority. Compliance is mandatory.
4. Let them sue
Much of the success of our nation's environmental laws is a result of citizen suit provisions, which empower individuals and nongovernmental organizations to sue the government and corporations for failing to enforce or comply with the law. The citizen suit provisions included in the 1970s Clean Air Act, Clean Water Act, and Endangered Species Act were the first to empower citizens — so-called "private attorneys general" — to bring cases to defend their personal interests in environmental and public health values. These cases have allowed the beneficiaries of environmental laws — the public — to include themselves in what was once a two-way conversation between the government and industry.
Letting people sue has elevated the status of the public interest and shaped agencies' agendas and companies' activities. The Green New Deal should ensure that citizens are not only invited to participate in an open and transparent policymaking process, but also are authorized to bring lawsuits when agencies and companies fall short of the law's demands. For example, imagine that the GND requires utilities to generate 100 percent of their energy from non-GHG-emitting sources by 2035 (as Jay Inslee's emerging climate policy platform does), and your utility is not even trying to do that; you should be authorized to file a lawsuit in federal court to seek penalties and a court injunction requiring compliance.
5. Make floors, not ceilings
Our nation's environmental and energy laws are a mess of federal-state relations. But the system of cooperative federalism, whereby the federal government establishes minimum standards and states figure out how to comply, works. In this system, Congress sets "floors" designed to prevent a race to the bottom among jurisdictions competing for industries seeking lax regulation. For instance, EPA sets air and water quality standards under federal law, but states can require even more protection. In some cases, though, Congress creates a "ceiling," which can pre-empt state and local innovation and actually prevent a race to the top among jurisdictions seeking to provide higher levels of environmental and public health protection. Energy efficiency standards for refrigerators and freezers, for example, are uniform throughout the country.
With climate change, floors are better than ceilings. We need every piece of the machine to work as hard as it can as we collectively seek to mitigate and adapt. We cannot afford to lock in half-measures or small improvements.
As such, Congress should set national standards for increasing renewable energy, electrifying transportation and buildings, achieving greenhouse gas emissions reductions from agriculture and industrial facilities, assessing climate risk and adopting climate adaptation plans, providing health care and access to employment, and whatever other measures make it into the final bill. But if a state or a city wants to go further there is absolutely no reason it shouldn't.
After all, we need as much ambition as we can muster, and there is no time to waste.
Burger is a senior research scholar at Columbia Law School and executive director of the Sabin Center for Climate Change Law.