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INTRODUCTION
Since the adoption of the Kyoto Protocol in 1997, the U.S. government has not only repudiated the agreement, but has enacted no comprehensive legislation to reduce carbon dioxide and other emissions that scientists agree with near unanimity are warming the globe.1 2009 may see significant federal action given President Obama's support for large cuts in greenhouse gas emissions and the passage by the House of Representatives of the first major bill committing the United States to significant emissions reductions.2 But the Obama Administration will face many other more immediate challenges - including a stubbornly deep recession- and congressional cooperation on climate change is by no means certain.3
While the federal government has remained idle, as numerous commentators have observed, a surprisingly large number of states have stepped in to fill the policy void.4 Many states have enacted renewable portfolio standards, created incentives for carbon capture and sequestration, mandated energy efficiency standards, and established public benefit funds to support energy efficiency and renewable energy.5 Other states have gone further, adopting overall greenhouse gas emissions caps,6 crafting greenhouse gas emissions standards for new automobiles,7 and capping utility emissions.8 Many, if not most, of these initiatives will continue to have force even after Congress begins to regulate.
Several scholars have puzzled over why many states have chosen to regulate climate change given the lack of obvious economic incentive to do so. State actors are part of a classic collective action problem: no single state can solve the problem absent action by other states - including nationstates, in the case of global climate change. Moreover, states cannot fully realize the benefits of their regulatory actions to control carbon emissions. The free rider incentives are large.9 Theories about why states have acted to reduce carbon emissions include that states are simply responding to electorate preferences to gain political advantage10 and that competition among states for economic development drives state behavior."
In this Article, I contend that the accounts of state involvement on climate change miss a large part of the story. By emphasizing how the states have partly filled the regulatory voids created by federal inaction, this conventional story misses the important - indeed critical - backdrop of the federal government and federal law. The most innovative state...