The only way to resolve warming is multi-scalar governance that depends on effective federalism

Subnational governments, working with non-governmental advocates, drove climate action during the Trump administration while rebuffing federal rollbacks. Under the Biden administration, focus may initially shift towards the federal government, but the subnational network is critical to continued progress on climate change. I use the term “networked federalism” to describe how a horizontal, interconnected, and polycentric collection of states, local governments, Tribes, and advocates provides the resilient frame needed to buttress national action. Indeed, this structure mirrors the successful structure of the Paris Agreement[1]—in which international action depends on subsidiary national contributions. A networked, federalist system of subnational climate action will be critical to continuing success, and should be nurtured and expanded. In this article, I discuss barriers to federal climate action under the Biden administration, trace the important role of subnationals in the climate movement, and lay out a policy agenda for strengthening subnational networks over the next four years.

I. Barriers to Federal Action Under the Biden Administration

Despite its climate focus, the Biden administration inherits a depleted civil service,[2] multiple crises from COVID-19 to economic depression,[3] and a hostile Supreme Court and federal judiciary.[4] In this context, subnationals on the side of climate action can be force multipliers—advancing policies, making markets, and occupying legal and civil space even if the federal courts intervene and the legislative process falters.

Such setbacks are likely: congressional direction may be slow in coming due to the undemocratic design of the U.S. Senate,[5] in which Jim Crow relics like the filibuster aggregate power in a Republican Senate minority that represents forty-one million fewer Americans than the thin Democratic majority.[6] Congress is unlikely to produce sweeping new legislature—though there will be opportunities for focused action[7]—and the judiciary is unlikely to countenance comprehensive regulatory efforts in its absence. Though some regulations will certainly survive, Trump appointments mean that the judiciary is unfriendly to broad executive action by the Biden administration. Barriers include attempts to revive “non-delegation” doctrines limiting agency scope absent very specific Congressional direction,[8] attacks on the deference due to agency technical judgments,[9] and amplification of the ill-defined “major question” doctrine, which asserts that agencies may not solve substantial problems absent explicit mandates.[10] Though these attempts have largely been supported only by minorities of the Court, they are of increasing currency, and are cropping up in lower court dissents.[11] The upshot is that regulatory action may be impeded by judicial doctrines that disfavor executive action—in theory, in deference to the legislature—even as the legislature struggles to act.[12]

Even if these barriers can be overcome, the midterm elections loom, and the historical odds favor gains for the Republican party.[13] In short, federal action, after a heartening start,[14] risks almost immediate reversals in court, or simply sputtering out legislatively if Congress cannot act commensurate with the challenge. In this context, the subnational network formed over the last four years is tactically critical. The new President can rely not just on the federal government, but on the entire network.

II. The Subnational Infrastructure: More Than A Counterweight

The Trump administration’s least likely legacy is genuinely robust and pervasive subnational climate action. Faced with wholesale federal hostility, subnationals banded together to challenge nearly every Trump-era climate and clean air action,[15] and racked up an impressive win record,[16] including vacatur of Trump’s marquee power sector rollbacks.[17] As the litigation stalled the remaining rollbacks,[18] states also increased policy collaborations.

The result was a major acceleration in state-level climate policy: multiple states prepped to follow California’s more rigorous vehicle emissions standards as soon as federal impediments were removed, accelerating decarbonization of the vehicle fleet;[19] states in the Northeast created a massive new transportation decarbonization initiative;[20] many states adopted statutes cutting high-global warming potential gases like hydrofluorocarbons;[21] and low carbon fuel standards began to spread.[22] Subnational regulators also began to close down obsolete fossil fuel infrastructure, with record numbers of coal-fired power plants retiring,[23] to be replaced with renewable energy and storage facilities.[24] States accelerated markets for clean technology,[25] implemented major environmental justice efforts in, for instance, California[26], North Carolina,[27] and New Jersey[28], and pivoted towards a just transition.[29] Additionally, a bipartisan coalition of governors formed the United States Climate Alliance, which included states representing 55 percent of the population.[30] The United States Climate Alliance documented and shared climate efforts among the states, and provided a critical collaborative venue.[31]

Beyond the value of policy progress in its own right, this decentralization of policy ultimately makes climate action more durable and effective on multiple axes:

States were the first and primary environmental regulators and the law continues to carve out ample space for state action.[32] Federal authority cedes to subnationals in critical areas, including land use,[33] the intrastate power sector,[34] building codes, and emissions from existing stationary[35] and mobile sources.[36] The federal Clean Air Act is typical in specifying that federal regulations are floors above which subnational governments are free to act.[37] Thus, most emissions are firmly under subnational jurisdiction.

State and local legal authorities are particularly resistant to judicial reversals. Few statutes preempt subnational authorities, and the Supreme Court has long emphasized the importance of state sovereignty in our federal system.[38] Moreover, states receive “special solicitude” regarding their ability to be in court in lawsuits against the federal government.[39] States also have the resources and ability to file such suits—and indeed greatly accelerated their efforts to do so during the Trump administration.[40]

In addition to offensive litigation, States have succeeded in defending many programs from challenges asserting a range of federal preemption and federal constitutional claims. For example, California and Oregon successfully preserved their Low Carbon Fuel Standards.[41] Although the Trump administration attempted to limit state authority by, for instance, attacking California’s long-standing vehicle regulatory program,[42] these attacks were on shaky legal ground,[43] and may prove to be evanescent under the new administration. Indeed, even while its vehicle regulatory program was under attack, California was still able to conclude successful agreements under which leading automakers contractually bound themselves to vehicle decarbonization despite federal rollbacks.[44]

Subnational advantages extend more deeply into the structure of our politics as subnational action offers a more varied and robust set of frameworks to sustain action, even in the face of federal reversals. Programs rooted in a single totalizing vision tend to be unstable.[45] There are simply too many distinct policy and political interests to make national consensus easy to attain.[46] Even after national consensus is attained, national programs can be subject to swift reversals in the courts—as the Supreme Court stay of the Obama-era Clean Power Plan underlined.[47] More fundamentally, as Harvard political scientist Theda Skocpol has observed,[48] any one climate policy is subject to retrenchment in the absence of sustained political organizing across multiple levels. The subnational network offers this sort of thick and resistant legal/political infrastructure.

Subnational policies are not immune to reversal—as Professor Leah Stokes has demonstrated, state-level retrenchment has occurred as incumbent fossil interests resist zero-carbon challengers[49]—but they still have real advantages. Initially, there are simply more actors, meaning that progress can be sustained even if retrenchment occurs in some jurisdictions. But states are also often better able to secure lasting policy settlements: it is less expensive to organize in state politics, meaning that lasting political coalitions are somewhat easier to sustain, and may reach more deeply into the community.[50] The comparative flexibility and speed of state legislation and regulatory processes in some jurisdictions may make it easier to put programs in place and adapt them in the face of attack.[51] And the nimbleness of state and local governments often makes it easier to pair technological policies with social ones—for instance, combining decarbonization rules for an industrial sector with support for transitioning workers.[52]

The structure of climate progress ultimately is as multi-leveled and complex as the origins of the climate crisis itself. Elinor Ostrom, Nobel Laureate in Economics, described climate change as a “polycentric” problem, in that the decisions that created the crisis emerge at every level of government and society.[53] Solutions to that crisis will be more robust if they mirror this essentially fractal structure. This was ultimately the insight that motivated the Paris Agreement, with its focus on nationally-determined actions within a larger organizing frame, rather than one central climate regime.[54] The same insight should motivate the design of government programs in the United States, with climate action deepening at every level.