Digital Commons Network^™

The Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

Central Banks And Climate Change, Christina P. Skinner

Vanderbilt Law Review

Central banks are increasingly called upon to address climate change. Proposals for central bank action on climate change range from programs of “green” quantitative easing to increases in risk-based capital requirements meant to deter banks from lending to climate-unfriendly business. Politicians and academics alike have urged climate risk as both macroeconomic and financial stability risk. Relative to counterparts abroad, the U.S. central bank—-the Federal Reserve—-has been more measured in its response.

This Article offers a legal explanation why. It urges that, despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address …

The Super Wicked Problem Of Donald Trump, Richard J. Lazarus

Vanderbilt Law Review

In 2009 I published a law review article that both explained why I believed that climate change was a “super wicked” problem for lawmakers and offered specific recommendations for ways that any laws addressing climate change should be crafted in light of its super wicked nature. The purpose of this subsequent Article is to revisit, modify, and update my earlier analysis based on the actual events of the past decade. Such hindsight analysis necessarily requires acknowledging, a bit embarrassingly, the things that I got wrong. Though, in my partial (not complete!) defense, I am in good company given the wholly …

De- And Re-Constructing Public Governance For Biodiversity Conservation Symposium: Governing Wicked Problems, Alejandro E. Camacho

Vanderbilt Law Review

This Article deconstructs the substantive, procedural, and structural components of public governance in the United States to explain how the existing legal infrastructure lacks the legal adaptive capacity to manage the wickedness of biodiversity loss. That is, particularly in the context of global anthropogenic climate change, the substantive goals and tools of public action, the processes used by governmental institutions to advance such goals and implement such tools, and the structure of allocated authority among public institutions have been devised in ways that make biodiversity loss virtually impossible to tackle meaningfully.

First, the substantive goals of natural resources law are …

Beyond Wickedness: Managing Complex Systems And Climate Change, Jonathan M. Gilligan, Michael P. Vandenbergh

Vanderbilt Law Review

This Article examines the argument that climate change is a “super wicked” problem. It concludes that the wicked problem concept is best viewed as a rhetorical device that served a valuable function in arguing against technocratic hubris in the early 1970s but is unhelpful and possibly counterproductive as a tool for modern climate policy analysis. Richard Lazarus improved on this analysis by emphasizing the urgency of a climate response in his characterization of the climate problem as “super wicked.” We suggest another approach based on Charles Lindblom’s “science of muddling through.” The muddling through approach supports the rhetorical points for …

A Sinking World: A Model Framework For Climate Change Adaptation Measures In Coastal Cities, Emma Rose

Vanderbilt Journal of Transnational Law

Climate change has already begun wreaking havoc on coastal communities across the globe, including Miami, Venice, and the Philippines. Adaptation mechanisms may be the most powerful weapons these communities have to combat sea level rise and the other disastrous effects of a warming planet. However, these adaptation programs must fit within each nation's unique federal and local regulatory schemes. Additionally, when they are funded by the federal government or foreign sources, these communities may have to sacrifice some autonomy over their implementation. While adaptation strategies can be broken down into three primary modes--resistance, transformation, and retreat--the most effective combination of …

Climate Change Refugees In The Time Of Sinking Islands, Jane Steffens

Vanderbilt Journal of Transnational Law

While environmental migration is not a new phenomenon, the international community has been slow to react to a wildly increasing number of people displaced by climate-related factors. With the current scenario of sinking islands, rapid urbanization, and drought, the international community seems to be on the precipice of a massive humanitarian catastrophe. Even so, lawmakers appear hesitant to fill in the gaps of existing international law, leaving an entire category of people vulnerable and unprotected against the effects of climate change. Private climate-governance initiatives can achieve large-scale, prompt, and efficient solutions to climate-induced migration. While private governance initiatives lack the …

Water Management On The Brahmaputra And The Applicability Of The Unece Water Convention, Stephanie Biggs

Vanderbilt Journal of Transnational Law

The Brahmaputra River is one of the world's largest transboundary waterways, yet it lacks a coherent, international management framework. The river, which flows from China through India and into Bangladesh, has been subject to decades of stalled negotiations, gamesmanship, and stop-gap oversight measures. As climate change and population growth place new stressors on the Brahmaputra and its riparian states, this arrangement will become untenable. Moreover, obtaining consensus may soon become impossible as the region grows increasingly water scarce. There is a brief window of opportunity to rectify inadequate management of the river and address urgent issues such as environmental protection …

Enter Sandman: The Viability Of Environmental Personhood To Us Soil Conservation Efforts, Thomas E. Johnson

Vanderbilt Journal of Entertainment & Technology Law

The US agricultural system relies on healthy soil for economic and environmental stability. The federal government established soil conservation efforts following the Dust Bowl, and state and local entities later developed legal tools to supplement soil conservation. These efforts, however, are insufficient to protect the nation's soil in the face of a changing climate. Conservation techniques are available that could substantially mitigate the effects of climate change, but the federal government lacks the tools to encourage their uniform adoption. The rigidity of prior state efforts, moreover, has disabled some landowners from adapting conservation lands to modern challenges. This Note recommends …

Paris, Panels, And Protectionism: Matching Us Rhetoric With Reality To Save The Planet, Abbey Stemler, Scott Shackelford, Eric Richards

Vanderbilt Journal of Entertainment & Technology Law

US rhetoric has not matched reality in the free trade or sustainability contexts, as may be seen by the ongoing debates surrounding a range of behaviors that violate international trade rules. The US government's failure to adhere to the rules that it was instrumental in crafting sets a particularly troubling precedent. These trade distortions reduce trust and respect among countries and undermine efforts to combat climate change. Simultaneously, we are witnessing a growing preference for "minilateral" agreements, as may be seen in the Obama Administration's push for the Trans-Pacific Partnership and US-EU Trade Pact. This trend is likely to continue …

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

Although cyberspace and the atmosphere are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and challenges of collective inaction and free riders. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem that affects the entire world. Yet its benefits are dispersed, and its harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a few nations even as others are becoming havens for cybercriminals. Yet it is also true that actions taken by a multiplicity of actors on …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Vanderbilt Journal of Transnational Law

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of …

Cultivating A Green Political Landscape: Lessons For Climate Change Policy From The Defeat Of California's Proposition 23, Eric Biber

Vanderbilt Law Review

In the fall of 2010, two major political battles over climate change in the United States reached their climax. At the federal level, efforts to enact comprehensive climate change legislation-already in doubt after the Senate refused to consider legislation passed by the House-were terminated for the near future by a landslide win for conservative Republicans, who are overwhelmingly hostile to climate change legislation, in midterm Congressional elections.' At the state level, California voters considered Proposition 23, a ballot initiative that would have effectively repealed the state's comprehensive global warming statute (AB 32, enacted in 2006). Yet despite the fact that …

Symposium - Supply And Demand: Barriers To A New Energy Future, Michael P. Vandenbergh, J. B. Ruhl, Jim Rossi

Vanderbilt Law Review

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon- constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of …

Truths We Must Tell Ourselves To Manage Climate Change, Robert H. Socolow

Vanderbilt Law Review

In 1958, Charles David Keeling began measuring the concentration of carbon dioxide (C02) in the atmosphere, at a site 11,000 feet above sea level near the top of Mauna Loa on the "big island" of Hawaii. The time series of monthly averages, the "Keeling Curve," is the iconic figure of climate change (see Figure 1). The curve oscillates and rises. The annual oscillations (whose details are seen in the Figure's inset) are the consequences of the seasonal breathing of the northern-hemisphere forests, which remove C02 from the atmosphere during their growing season and return C02 to the atmosphere as their …