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.