Jenner & Block: 2010 Climate Change Year in Review: The Executive Branch Takes Charge

Jenner & Block: 2010 Climate Change Year in Review: The Executive Branch Takes Charge

   By Gabrielle Sigel, Partner, Jenner & Block LLP

“On January 27, 2010, in his first State of the Union address, President Obama expressed his desire to see Congress pass a comprehensive energy and climate bill adopted in the coming year. This statement reiterated his position, stated at the start of his administration, that his preferred approach was to have Congress develop new law on climate change, rather than the Executive Branch adapt current law to greenhouse gas emissions,” writes Gabrielle Sigel. “In his speech, Obama tied such legislation to job creation, providing examples of ‘green jobs’ and emphasizing that, ‘to create more of these clean energy jobs, we need more production, more efficiency, more incentives.’”

“As 2010 came to a close, however, Obama's Congressional agenda on climate change had not been accomplished. Congress did not pass a comprehensive bill to regulate greenhouse gas (GHG) emissions,” reports the author. “Indeed, the November election results indicated that public support for comprehensive climate change legislation had waned considerably. With a new Republican majority arriving in the House of Representatives, the likelihood that such legislation would be enacted anytime before the 2014 election is remote.”

“Yet, from the outset of 2010, despite claiming that GHG regulation was best left to Congress, the Obama Administration made significant strides toward comprehensive GHG emission regulation under existing law. The Administration did this largely through its professed less-preferred option—regulating GHG emissions under the Clean Air Act of 1990 (CAA), but also under other existing statutory and regulatory structures,” explains Ms. Sigel. “Thus, this year's theme for climate change developments in the U.S. was that, breaking from the past, it was the Executive Branch, not the states, nor Congress, nor the business community, which took the most aggressive steps to regulate and potentially reduce GHG emissions.”

“This paper summarizes the highlights of primarily U.S.-based climate change developments during 2010. The year 2010 saw control of the climate change agenda move firmly into the hands of the Executive Branch. The challenge in 2011 will be whether the Obama Administration will be able to keep that control despite attack from a new Congress, litigation by the regulated industry and states, and a less supportive public.”

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Gabrielle Sigel, a partner in Jenner & Block's Environmental Practice, is Co-Chair of her Firm's Climate and Clean Technology Law Practice. Ms. Sigel's national practice focuses primarily on environmental, safety and health litigation and counseling, toxic tort defense, and insurance coverage litigation and counseling. She recently concluded several toxic tort lawsuits concerning a contaminated site located in a residential area. A significant portion of Ms. Sigel's litigation practice involves representing employers in matters concerning work-related injuries, including OSHA proceedings, personal injury lawsuits, criminal investigations, workers' compensation hearings and insurance coverage claims.

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