Brigham Daniels (Brigham Young University - J. Reuben Clark Law School) has posted Addressing Global Climate Change in an Age of Political Climate Change (Brigham Young University Law Review, 2011) on SSRN. Here is the abstract:
For a number of years, many within the environmental legal community have advocated an all-out attack strategy of forcing the United States to address climate change by bringing novel lawsuits under existing environmental laws. In 2007, with the seminal case of Massachusetts v. EPA, it appeared that those advocating this strategy had a winning game plan. That sense grew and solidified when the Obama Administration came to power.
However, over the past several years, we have seen a countervailing movement embodied in a growing resentment towards EPA and climate change policy in general. This movement has mobilized into a powerful political force. This article raises the following question to those who want the United States to take action on climate change: given the backlash we have seen, is this no-holds-barred approach to force action on climate change the best way forward? While admittedly the answer to this question is a difficult one, this article ultimately argues that it is not.