NULR Online

American climate law is the subject of serious and ongoing debate, and policy change is part of the ordinary process of democratic governance. However, in recent years some policymakers have deliberately undermined climate action by injecting legal instability into American climate law. This Essay addresses a simple question: how can Americans build necessary climate infrastructure in the face of an unstable political and legal regime?

Some readers may be shocked by this question. Indeed, this framing is intentionally provocative. However, this Essay recognizes a simple fact: not all American polities, and not all American policymakers, are trustworthy and predictable partners for climate infrastructure projects. Further, American climate law contains significant sources of instability which can be exacerbated by political sabotage. Actions that undermine public climate commitments create a genuine risk for both the legitimacy of American governance and the material well-being of Americans in the face of the global climate crisis.

This Essay proposes a tool kit for protecting climate infrastructure from political interference. Part I identifies sources of legal instability in America’s response to the climate crisis, places it in a theoretical context, and discusses the costs of this political instability. Part II discusses the ethical issues involved in preempting political instability in a democracy and concludes that addressing climate change aligns with historical ethical justifications for entrenchment in American law. Finally, Part III outlines doctrinal, contractual, and political techniques to entrench climate policy and protect climate infrastructure from political interference.

Climate Law Fellow and Associate Research Scholar at Sabin Center for Climate Change Law at Columbia Law School. The views expressed herein are solely my own and do not reflect the views of my employers, past, present, or future. I am grateful to Professor Michael B. Gerrard for his invaluable feedback on an early draft of this paper, and to the staff of the Northwestern University Law Review for their hard work and thoughtful comments.