Introduction

20.01The prospect of carbon liability in the United States is a relatively recent phenomenon. It is only in the last decade that US environmental lawyers and policy-makers have begun to turn their attention to climate change, as climate-related litigation has surged, government action on several fronts has begun, and climate change has generally been recognised as a factor to consider in decision-making across the economy. This chapter lays out existing options to establish liability for greenhouse gas (‘GHG’) emissions along legislative, regulatory and judicial channels.

The United States legal system

20.02The United States of America (‘USA’) was founded as a constitutional democracy. Its primary document is the US Constitution, which establishes the absolute rules for how the federal government functions. It has a three-part system: the bicameral legislature (House of Representatives and the Senate, which together form the Congress) passes legislation; the President signs and implements such laws; and the federal court system, guided by the Supreme Court, determines the legality of federal (and some other) activities. In order to execute the law, the President relies heavily on a federal bureaucracy of administrative agencies, which utilise their technical expertise to implement congressional mandates through regulations and thereby create a set of legal rules subsidiary to statutes (laws). In addition to this, federal courts work in a common law system, and so are able to set laws through judicial decision-making.