Energy Law

Introduction The World Meteorological Organization’s 2024 State of the Climate report is bleak. Greenhouse gas emissions reached record levels in 2023 and are still increasing.[footnote]World Meteorol. Org., State of the Climate in 2024: Update for COP29, at ii (2024), https://library.wmo.int/viewer/69075/download?file=State-Climate-2024-Update-COP29_en.pdf&type=pdf&navigator=1 (on file with the Columbia Law Review ).[/footnote] Polar sea ice continues to decline, and ocean temperatures continue to rise.[footnote]Id.[/footnote] Extreme weather events linked to climate change affected millions of people globally and exacerbated problems of food insecurity and human displacement.[footnote]Id. at 6.[/footnote] The year 2024 surpassed 2023 to become the warmest year on record.[footnote]Press Release, Nat’l Oceanic & Atmospheric Admin., 2024 Was the World’s Warmest Year on Record (Jan. 10, 2025), https://www.noaa.gov/news/2024-was-worlds-warmest-year-on-record [https://perma.cc/J54U-G4Y6].[/footnote]

While society is already experiencing some effects of planetary warming, urgent action can still avert the worst outcomes. The most recent report from the UN’s Intergovernmental Panel on Climate Change (IPCC) warns that the world must achieve “rapid, deep, and in most cases immediate [greenhouse gas] emission reductions in all sectors” to avoid levels of warming beyond two degrees Celsius and the irreversible impacts that would accompany them.[footnote]Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report, Contribution of Working Groups I, II, and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 82 (H. Lee & J. Romero eds., 2023), https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_LongerReport.pdf [https://perma.cc/3FTC-5FJC].[/footnote]

The United States, however, seems to be moving in the opposite direction. Congress has been unable to coalesce around a regulatory strategy to mitigate greenhouse gas emissions. The signature piece of legislation on climate change and the energy transition—the Inflation Reduction Act—was passed in 2022 through a special process known as reconciliation, which allowed it to be enacted over the votes of every single congressional Republican.[footnote]Kristina M. Moore, Can Republicans Repeal the Inflation Reduction Act (IRA)?, Nat’l L. Rev. (Oct. 22, 2024), https://natlawreview.com/article/can-republicans-repeal-inflation-reduction-act-ira [https://perma.cc/ZLU3-CE4K].[/footnote] The Act imposed no direct restrictions on greenhouse gas emissions, instead providing government dollars to support clean energy industries (alongside some dirtier ones).[footnote]See Bipartisan Pol’y Ctr., Inflation Reduction Act Summary: Energy and Climate Provisions 1–2 (2022), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2022/08/Energy-IRA-Brief_R04.pdf (on file with the Columbia Law Review ) (“Clean energy provisions in the bill would accelerate the deployment of clean energy technologies, reduce global emissions, lower energy prices, help export American innovation, strengthen our economy and build a reliable and affordable energy sector.”).[/footnote] Now even this approach has been gutted by another reconciliation bill.[footnote]See, e.g., Amy Turner, The One Big Beautiful Bill Act: Considerations for Cities and Community Partners, Sabin Ctr.: Climate L. Blog (July 7, 2025), https://blogs.law.columbia.edu/climatechange/2025/07/07/the-one-big-beautiful -bill-act-considerations-for-cities-and-community-partners/ [https://perma.cc/Z5NF-ERBJ] (noting that the One Big Beautiful Bill Act “guts many of the IRA’s grant and loan programs”). Meanwhile, the Trump Administration has frozen and clawed back funds already awarded under the Act. Simmone Shah, How Trump Is Trying to Undo the Inflation Reduction Act, Time (Feb. 27, 2025), https://time.com/7262600/how-trump-is-trying-to-undo-the-inflation-reduction-act/ (on file with the Columbia Law Review ); see also, e.g., Claire Brown, Waiting, Often in the Dark, for Frozen E.P.A. Funds, N.Y. Times (May 17, 2025), https://www.nytimes.com/2025/05/17/climate/puerto-rico-ira-funds-frozen.html (on file with the Columbia Law Review ) (documenting how the frozen funds are impacting infrastructure projects in Puerto Rico).[/footnote]

Professor David B. Spence’s new book, Climate of Contempt ,[footnote]David B. Spence, Climate of Contempt: How to Rescue the U.S. Energy Transition From Voter Partisanship (2024) [hereinafter Spence, Climate of Contempt].[/footnote] helps make sense of the current state of climate and energy policy in America. Spence draws on law as well as economics, sociology, psychology, and ethics to conclude that increasing polarization and partisanship, exacerbated by social media, are to blame for the lack of progress.[footnote]E.g., id. at 2, 5.[/footnote] Spence argues that the only way to work through our current impasse is to engage in face-to-face dialogue with opponents of climate policy. By treating them with respect and taking their concerns seriously, Spence argues, we can build the climate coalition.[footnote]Id. at 30.[/footnote]

Part I of this Book Review describes Climate of Contempt ’s approach and summarizes its main arguments. Part II argues that Spence’s account is important but incomplete. This is because the partisanship and polarization that Spence blames for our lack of progress on the energy transition are also eroding faith in government institutions. This Part describes efforts to undermine federal climate and clean energy policy that Professor Jody Freeman and I have described as “structural deregulation”: the dismantling of federal agencies and, with it, their capacity to govern.[footnote]See Jody Freeman & Sharon Jacobs, Structural Deregulation, 135 Harv. L. Rev. 585, 588, 591–92 (2021) [hereinafter Freeman & Jacobs, Structural Deregulation].[/footnote] This erosion can create a pernicious feedback loop in which the dearth of government expertise makes it even more difficult to agree on basic facts, thus further fueling the propaganda machine and partisan entrenchment that Spence describes.

Part III turns to solutions. Given the unprecedented destruction of government capacity and knowledge production since January 20, 2025, Spence’s call to focus on interpersonal dialogue is sound but insufficient. If climate policy is to stand a chance against the structural deregulation of agencies, Spence’s approach must be paired with legal and structural responses that protect administrative knowledge production. Supreme Court rulings and presidential actions have made traditional efforts to shield agencies and their heads from presidential influence increasingly ineffective.[footnote]See infra notes 179–181 and accompanying text.[/footnote] But there are still opportunities for Congress to defend agency knowledge production, require greater agency transparency, and strengthen data and scientific integrity policies. To enhance their legitimacy, agencies should also consider partnering with more trusted societal actors, including the military and professional organizations. These are longer-term solutions, however, and in the short term, it may be necessary to rely on substitute sources of climate and energy data and research outside of the federal government.

Energy Law

ADMINISTRATION, DISTRUST, AND THE ENERGY TRANSITION

AGENCY GENESIS AND THE ENERGY TRANSITION