Natural resources, such as clean air and water, are public resources shared by all, yet owned by no one in particular. Since public resources are not sold in a free marketplace, they have no free market value that takes into account factors such as scarcity and environmental degradation. However, if such public goods are carelessly used without any rules governing their use, such resources inevitably succumb to the “tragedy of the commons,”2 under which resources that are free or available to everyone may be ruined by abuse or overuse.

Like a tripartite juggernaut, all three branches of the U.S. federal government are actively grappling with climate change in kind: legislation from the U.S. Congress; regulation from the U.S. Environmental Protection Agency (EPA); and litigation in the judiciary all may come to bear on carbon emissions as a causal genesis of climate change. When all three branches of the federal government concurrently engage in questions of the same subject matter, interesting separation-of-powers concerns are implicated.

For those interested in the intersection of global greenhouse gas (GHG) regulation and responsible energy policy, December 23, 2010, was a day worth remembering. Over at the U.S. Environmental Protection Agency (EPA), regulators were announcing a schedule for rulemaking for new source performance standards (NSPS)1 for GHG emissions from refineries and power plants. Meanwhile, the Wall Street Journal2 ran a lead editorial reflecting upon an apparent division in the ranks among power companies.

The political opponents of regulation addressing climate change claim that the Clean Air Act (CAA) is a “fossil” neither intended nor suitable for addressing the challenges of climate change. Legal and historical analysis suggests otherwise. Both the text of the Act, as interpreted by the U.S. Supreme Court in Massachusetts v. U.S. Environmental Protection Agency (EPA), and the legislative history indicate a congressional intent to regulate emissions of pollutants that pose a risk of causing changes in worldwide climate.

On January 2, 2011, EPA’s much-anticipated prevention of significant deterioration and Title V Greenhouse Gas Tailoring Rule took effect, expanding the reach of the Clean Air Act and creating a phased-in approach to greenhouse gas regulation that initially targets the nation’s largest emitters but will gradually encompass additional sources. Numerous challenges threaten the rule’s long-term viability, including a regulatory alternative that could gain traction in the continued absence of a legislative response to the issue of climate change.

Throughout the country, divergent interests are collaborating about how they would like particular national forests to be managed. Some of these initiatives are seeking place-based legislation as a way to secure such agreements, while others use an assortment of different approaches and memoranda of understanding. What is most remarkable about these initiatives is the similarities they share, from a widespread frustration with the status quo to the search for more certainty in forest management.

The CWA, with multiple paths to its destination, is reinventing itself once more. Enacted in modern for  in 1972, the next quarter century saw EPA focused on the development of technology standards for industrial and municipal point sources. In the mid-1990s, prodded forward by a stream of citizen suits, the Agency started to address nonpoint sources of pollution through water quality standards and the TMDL program. This movement stalled from 2000-2009, and the current revival raises the question whether EPA, at last, can make nonpoint and ambient-based controls effective.

Good scientists have active minds and creative imaginations. These traits allow scientists to develop hypotheses and design experiments to test them with the hope of moving scientific inquiry and the state of knowledge ever further. While most laws do not implicate or emphasize science, the federal Endangered Species Act (ESA) is among the few that does.

The growing national focus on greenhouse gas (GHG) emissions is creating new challenges for the application of one of the most venerable federal environmental laws, the National Environmental Policy Act (NEPA). NEPA requires federal agencies to analyze the environmental effects of their proposed actions in formal environmental studies. The purpose of the law is to generate better information on environmental impacts for agency decisionmakers and the public, so that agencies can make better decisions.

The author reviews Oliver Houck’s inspirational book, Taking Back Eden: Eight Environmental Cases That Changed the World. In this book, Houck tells the stories of courageous citizens in eight countries who took legal action to defend the environment.