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Articles 91 - 113 of 113
Full-Text Articles in Law
Effective Renewable Energy Policy: Leave It To The States?, Steven Weissman
Effective Renewable Energy Policy: Leave It To The States?, Steven Weissman
San Diego Journal of Climate & Energy Law
The federal system employed in the United States offers many models for cooperation between the federal government and the states in pursuit of important policy objectives. Under the Clean Air Act, the U.S. Environmental Protection Agency can establish air quality standards and delegate enforcement to the states. The Coastal Zone Management Act empowers states to establish plans for management of ocean waters close to shore and to have a say related to offshore projects that are in federal jurisdictional waters. The Surface Mining Control and Reclamation Act of 1977 allows coal states to set and enforce their own rules related …
An Environmental Competition Statute, David M. Driesen
An Environmental Competition Statute, David M. Driesen
San Diego Journal of Climate & Energy Law
The next generation of environmental law should use economic incentives to creatively stimulate innovation in environmental technology. This Article proposes an environmental competition statute as a means of stimulating movement toward a more sustainable future. Such a statute would authorize those who achieve low emissions to collect the cost of achieving low emissions plus a premium from competitors with higher emissions.
This Article briefly explains the value of using this mechanism. It then canvasses the problems with the first and second generation of environmental law that an environmental competition statute can help us overcome. A detailed description of an environmental …
The Effects Of Brazilian Agricultural Property Policies And International Pressures On The Soybean Industry: Incentives For Amazon Deforestation And How It May Be Reduced, Tyler E. Hazen
San Diego Journal of Climate & Energy Law
This Article begins in Part II with an overview of the Amazonian environment and the rise of soybeans as a lucrative export product. Part III discusses how Brazilian property law and land use culture has facilitated transformation of land for cultivation and ultimately, deforestation. Part IV discusses international reaction to Brazil’s sovereignty over the Amazon, including European import practices such as protectionism, desire for hormone-free products, as well as market incentives for soy raised on land that was not deforested. Finally, Part V offers solutions for working within the current system, aggressively supporting the policies against deforestation while respecting the …
Looking Back To Move Forward: Revisiting The Btu In Evaluating Current Policy Alternatives, Walter Wang
Looking Back To Move Forward: Revisiting The Btu In Evaluating Current Policy Alternatives, Walter Wang
San Diego Journal of Climate & Energy Law
To evaluate the current policy alternatives, it is necessary to take a step back and revisit the Btu tax proposed by the Clinton Administration. Although seventeen years have passed since the Btu tax was proposed, and the U.S. is at war in theaters that are much different from those in which it was involved during the Clinton Administration, the landscape of the climate change debate has not changed dramatically. The lessons learned from the policies espoused by the Btu tax proposal may be critical in determining how to best approach climate change legislation today.
Enforcing Cap-And-Trade: A Tale Of Two Programs, Lesley K. Mcallister
Enforcing Cap-And-Trade: A Tale Of Two Programs, Lesley K. Mcallister
San Diego Journal of Climate & Energy Law
This Article uses the histories of the ARP and RECLAIM to show that even when monitoring and enforcement provisions for cap-and-trade programs are designed in a similar way, the resulting enforcement systems and enforcement outcomes may be very different. Part I of the Article tells the enforcement story of the ARP. It appears to be a story of regulatory efficiency and success. Part II tells the enforcement story of RECLAIM. While not a failure, RECLAIM enforcement seems to have been full of difficulties that necessitated large amounts of administrative time and resources. This part presents the results of an empirical …
Climate Change Law In And Over Time, Richard J. Lazarus
Climate Change Law In And Over Time, Richard J. Lazarus
San Diego Journal of Climate & Energy Law
The critical lesson for climate change legislation is that the pending lawmaking moment must include the enactment of provisions specifically designed to maintain the legislation’s ability to achieve its long-term objectives over the longer term. For climate change legislation to be successful, the new legal framework must simultaneously be flexible in certain respects and steadfast in others. Flexibility is necessary to allow for the modification of legal requirements over time in light of new information. Steadfastness or “stickiness” is important to maintain the stability of a law’s requirements over time. The need for both is particularly great for climate change …
How To Love The One You're With: Changing Tax Policy To Fit Cap-And-Trade, Roberta Mann
How To Love The One You're With: Changing Tax Policy To Fit Cap-And-Trade, Roberta Mann
San Diego Journal of Climate & Energy Law
This paper will begin with an introduction of climate change issues, including a brief history of international mitigation efforts. The next section will give an overview of cap-and-trade systems and describe how a typical cap-and-trade system would interact with the current federal income tax system. The discussion of the interaction of cap-and-trade with the income tax will include both direct and indirect effects. This section will then compare those effects with the potential impact of a carbon tax. The direct impacts of cap-and-trade on the income tax system occur because the “trade” part of cap-and-trade creates a new financial instrument …
Adapting To Climate Change With Law That Bends Without Breaking, Holly Doremus
Adapting To Climate Change With Law That Bends Without Breaking, Holly Doremus
San Diego Journal of Climate & Energy Law
Climate change, the key environmental challenge of this century, is a tough problem for law in many ways. The topic of this panel, instrument choice, highlights a particularly difficult, important, and under-recognized aspect of the climate change challenge: the difficulty of devising a system of environmental law that combines the flexibility necessary to deal with a changing world with the rigidity and accountability essential to hold us to the difficult task of environmental protection.
Federal Greenhouse Gas Control Options From An Enforcement Perspective, Scott Schang, Teresa Chan
Federal Greenhouse Gas Control Options From An Enforcement Perspective, Scott Schang, Teresa Chan
San Diego Journal of Climate & Energy Law
As part of the University of San Diego Law School’s Second Annual Climate and Energy Law Symposium, we decided to review the enforcement provisions of the main federal greenhouse gas control options, with a view to drawing lessons from that review that could inform policy choices and program design. Our review suggests that there are relative strengths and weaknesses, as well important tradeoffs to be made, in the enforcement provisions of each of the leading candidate programs. Our review further suggests that some revisions should be made to these provisions to help ensure that the greenhouse gas control programs meet …
First Annual Climate And Energy Law Symposium: Federal Preemption Or State Prerogative: California In The Face Of National Climate Policy: An Introduction, Richard J. Lazarus
First Annual Climate And Energy Law Symposium: Federal Preemption Or State Prerogative: California In The Face Of National Climate Policy: An Introduction, Richard J. Lazarus
San Diego Journal of Climate & Energy Law
The University of San Diego School of Law's decision to create a new scholarly law journal dedicated to climate and energy issues could hardly come at a better time. ...
... The resulting debate and discussion, reflected in the following papers that the speakers produced, should be required reading for those lawmakers both in Washington, DC and in state capitals such as Sacramento, as they craft federal and state laws that seek to address this "most pressing environmental challenge."
Energy Efficiency And Federalism, Ann E. Carlson
Energy Efficiency And Federalism, Ann E. Carlson
San Diego Journal of Climate & Energy Law
Everyone loves energy efficiency. Among an array of carbon-reducing strategies, energy efficiency surely ranks as the least controversial. Indeed increasing energy efficiency is frequently lauded as having "net negative costs"-to use the terminology of the Intergovernmental Panel on Climate Change-meaning that the benefits outweigh the costs, even excluding benefits from avoided climate change.
Yet the U.S. system for regulating appliances, which account for a huge percentage of the nation's carbon emissions, is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative …
The History Of State Action In The Environmental Realm: A Presumption Against Preemption In Climate Change Law?, Victor B. Flatt
The History Of State Action In The Environmental Realm: A Presumption Against Preemption In Climate Change Law?, Victor B. Flatt
San Diego Journal of Climate & Energy Law
As we move toward an almost certain comprehensive federal law to address climate change, increasing attention is being paid to what will happen to state and local climate change and climate change-related programs that have arisen in this country in the law few years. As the symposium demonstrated, California has a particular concern that federal law might block its environmental and climate change policies. ...
... In most areas, almost 40 years of environmental federalism has allowed states to regulate beyond the federal government for the protection of their citizens, and we can examine this history empirically in order to …
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
San Diego Journal of Climate & Energy Law
There is a vigorous debate about the appropriate roles of the state and federal governments in reducing greenhouse gases and mitigating climate change. ...
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This Article is a first step in mapping this new terrain. Part I provides a short introduction to climate adaptation. The United States will face significant climate impacts in the next few decades, and governmental responses will be required. Part II discusses the role of the federal government in setting adaptation standards, while Part III analyzes the appropriateness of state versus federal funding for adaptation. States are likely to play the leading role in funding …
The Clean Water Act And Power Plant Cooling Water Intake Structures, John H. Minan
The Clean Water Act And Power Plant Cooling Water Intake Structures, John H. Minan
San Diego Journal of Climate & Energy Law
The focus of this Article in on a subtler, but no less important, part of the climate change story involving energy and water. The focus in on the federal regulation of existing once-through-cooling (OTC) intake structures that are used by large steam electric-generating power plants. OTC, closed-cycle (CC) cooling, and dry-cooling (DC) each perform the same function, which is the removal of waste heat from the steam cycle after it has generated electricity.
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The elimination of OTC systems would have a salutatory effect on the aquatic environment because fewer marine organisms would be destroyed by impingement and entrainment. But …
It's Getting Hot In Herre. California Senate Bill 1368 And The Dormant Commerce Clause, Andrew F. Adams
It's Getting Hot In Herre. California Senate Bill 1368 And The Dormant Commerce Clause, Andrew F. Adams
San Diego Journal of Climate & Energy Law
This Article addresses whether S.B. 1368 could hold up to a Commerce Clause challenge in three stages. Part II discuses the dormant Commerce Clause and how it is applied to state laws that potentially affect interstate commerce. It explains the history and development of the concept and fleshes out the two-step test that exists today: (1) courts determine whether a law is facially discriminatory; (2) if not, courts apply a test that weighs the respective burdens and benefits of the law. Part II also discusses the different ways in which many of the current Supreme Court Justices interpret and apply …
Consumers Versus Contracts: Morgan Stanley, Maine, And The Mobile-Sierra Doctrine, Brent Allen
Consumers Versus Contracts: Morgan Stanley, Maine, And The Mobile-Sierra Doctrine, Brent Allen
San Diego Journal of Climate & Energy Law
The Supreme Court unwittingly spawned the so-called Mobile-Sierra doctrine in 1956 with its two same-day decisions in United Gas Pipe Line Co. v. Mobile Gas Service Corp. and Federal Power Commission v. Sierra Pacific Power Co. The doctrine creates an important restriction on the Federal Energy Regulatory Commission's (FERC) ability to interfere with wholesale energy rates set forth in private contracts. It does this by triggering a heightened standard of review that applies when the Commission reviews fixed rates in private contracts; specifically, the doctrine shifts the standard from the default "just and reasonable" standard to a more rigorous "public …
Regional Climate Regulation: From State Competition To State Collaboration, Lesley K. Mcallister
Regional Climate Regulation: From State Competition To State Collaboration, Lesley K. Mcallister
San Diego Journal of Climate & Energy Law
States have often been theorized to act as competitors in crafting their environmental policies, engaging in either a “race to the bottom” or a “race to the top.” In the recent development of climate law, however, it is state collaboration and cooperation rather than state competition that have emerged most strongly. This Article first discusses how the theories of competitive state behavior would have predicted states to behave in the absence of federal action and describes the contrasting extent to which states have engaged in collaborative initiatives. The Article then analyzes why states have been motivated to collaborate in climate …
Climate Law And Policy In North America: Prospects For Regionalism, Neil Craik, Joseph Dimento
Climate Law And Policy In North America: Prospects For Regionalism, Neil Craik, Joseph Dimento
San Diego Journal of Climate & Energy Law
This Article surveys the current bilateral and trilateral initiatives aimed at GHG emission reductions in North America with a view to assessing the nature and potential role of regional climate change law and policy within a broader global framework. In this context, by regional cooperation, we mean cooperation organized on a North American scale. In pursuit of this objective, this Article seeks to identify, first, how climate change mitigation may be regulated usefully on a regional scale, and second, the governance structures and institutions that may be drawn upon to create and implement regional cooperation on climate change. Particular consideration …
State Greenhouse Gas Regulation, Federal Climate Change Legislation, And The Preemption Sword, William W. Buzbee
State Greenhouse Gas Regulation, Federal Climate Change Legislation, And The Preemption Sword, William W. Buzbee
San Diego Journal of Climate & Energy Law
This Article starts in Part II by reviewing the basic anticipated design elements of federal climate legislation, then it reviews the substantial regulatory failure risks inherent in such climate change legislation. It then turns in Part III to analysis of preemption choices. The Article follows in Part IV by examining preemption jurisprudence, especially the growing risk of broad preemptive reads of federal law, and demonstrating how statutory uncertainties regarding preemption could result in subsequent interpretations substantially expanding the law's preemptive impact. ... Furthermore, as discussed in Part V, overlap and interaction of concurrent federal, state, and local climate change laws …
Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan
Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan
San Diego Journal of Climate & Energy Law
This Article addresses a critical question about a state's role in the operation of a national cap-and-trade program: whether federal legislation should allow states to be more stringent than the federal government. ...
This Article is the first in a series that will address the wisdom of allowing state control within a federal trading system. ...
Part II of this Article articulates the primary justifications for allowing states to set more stringent caps. ...
Part III turns to practical mechanisms to achieve state stringency. ...
Part IV articulates the potential adverse impacts that could result from states using these mechanisms …