Brooklyn Law Review


The urgent need to cool the atmosphere and slow the effects of climate change is evident all around us. However, half of Congress and large swaths of the American public are still not on board, and the highest Court in the land just knee-capped the EPA’s power to regulate effectively. This note looks at the implementation and amendment of the Clean Air Act and subsequent deviation from the Act’s bipartisan roots to its current highly political polarizing status. It then reviews twenty-first century caselaw affecting climate policy to highlight statutory and judicial barriers to progress. Culminating with the recent Supreme Court opinion in West Virginia v. EPA, and its substantial step to curtail administrative response, and the likely effect on President Biden’s climate agenda in the wake of the passage of the Inflation Reduction Act. After thorough analysis of present barriers to climate progress, this note offers a two-part solution to effectuate lasting change. First, it concludes that amending the Clean Air Act is necessary to prevent endless court battles and rectify the damage done by the grandfather clause for existing power plants. Second, it proposes a political canvassing solution to work in tandem with the government’s clean energy initiatives in hopes of healing the partisan divide and making the road to amendment passable.