Law Commons^™

The Missing "T" In Esg, Danielle A. Chaim -- Assistant Professor, Gideon Parchomovsky -- Professor Of Law

Vanderbilt Law Review

Environmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, …

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

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, …

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 …

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 …

Resilience Theory And Wicked Problems, Robin Kundis Craig

Vanderbilt Law Review

This Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems—now social-ecological systems (“SESs”)—do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least not over the long term, …

Wicked Problems, Foolish Decisions: Promoting Sustainability Through Urban Governance In A Complex World Symposium: Governing Wicked Problems, Scott D. Campbell, Moira Zellner

Vanderbilt Law Review

Why do wicked problems often give birth to bad policy choices? Put another way, why do people—in the face of complex social challenges—make misdiagnoses, ineffective decisions, or no decisions at all? Typical answers point to a plethora of suspects: impatience, myopia, political stalemate, narrow-mindedness, fear and risk aversion, hubris, greed, rational self-interest, ignorance, reliance on emotionally appealing but misleading anecdotal stories, misuse of evidence, and misunderstanding of uncertainty.

Amid these divergent explanations, two classes emerge: one lies in the shortcomings and mistakes of the problem solvers, and the other lies in the nature of the problem itself. One stance is …

Designing Law To Enable Adaptive Governance Of Modern Wicked Problems, Barbara A. Cosens, J.B. Ruhl, Niko Soininen, Lance Gunderson

Vanderbilt Law Review

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …

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 …

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 …

Getting To The (Non) Point: Private Governance As A Solution To Nonpoint Source Pollution, Kyle W. Robisch

Vanderbilt Law Review

Chances are that today you have already unwittingly advanced the slow but steady demise of America's freshwater supply. The sausage and egg biscuit you ate for breakfast, the half-empty bottle of Drano you dumped into your backyard, and the quick trip to the grocery store-these seemingly innocent actions each significantly degrade American watersheds.' In response to this systemic and persistent assault on water quality, Congress enacted the Federal Water Pollution Control Act of 1972. More commonly known as the Clean Water Act ("CWA"), this legislation attempted to take an aggressive and comprehensive approach to improving water quality. To achieve its …

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 …

Environmental Law And Fossil Fuels: Barriers To Renewable Energy, Uma Outka

Vanderbilt Law Review

Renewable energy is gaining momentum around the globe, but the United States has only just begun to change its energy trajectory away from fossil fuels. Today, only about 10% of electricity in the United States is generated from renewable energy, and most of that comes from hydroelectric power plants that have been operating for many years. The U.S. Energy Information Administration projects 30% of new capacity over the next twenty years will utilize renewable resources, without significant changes in U.S. energy policy, but at that pace renewable energy will still account for only 16% of generated electricity. These prospects stand …

Can We Regulate Our Way To Energy Efficiency? Product Standards As Climate Policy, Noah M. Sachs

Vanderbilt Law Review

Alternative energy supplies get most of the attention in the climate change debate, but reducing energy demand should be the dominant strategy for cutting global greenhouse gas emissions. Dozens of technical studies have concluded that improving the efficiency of automobiles, furnaces, motors, consumer electronics, lighting, air conditioners, and other energy-using products is the cheapest and fastest way to achieve dramatic reductions in greenhouse gas emissions.' In fact, avoiding catastrophic global heating largely depends on how fast energy efficient technology can be deployed over the next few decades.

Energy efficiency can be promoted through multiple policies, such as energy taxes, a …

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 …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law Review

Energy policy debates often focus on increasing the supply of renewable energy, but energy demand merits equal attention. Low- carbon energy sources will not be able to displace fossil fuels at the levels necessary to achieve climate goals if global demand continues to grow at projected rates. To meet the widely endorsed goal of 50% global carbon emissions reductions by 2050, including 80% reductions from developed countries, global emissions from fossil fuel use will need to decline by more than seven billion tons from projected levels by 2050. Major new sources of low-carbon energy will become available, but it is …

Personal Environmental Information: The Promise And Perils Of The Emerging Capacity To Identify Individual Environmental Harms, Katrina Fischer Kuh

Vanderbilt Law Review

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity. Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home. Radio frequency identification ("RFID") chips embedded in recycling collection bins track household recycling behaviors, including everything from whether the household is recycling to whether its members properly separate their recyclables. Regulators use aerial imagery and geographic information systems ("GIS") technology to detect violations of local building codes and the illegal filling of wetlands. Interactive "ecomaps" allow city residents to compare environmental performance by zip code. Even information …

Harmonizing Commercial Wind Power And The Endangered Species Act Through Administrative Reform, J. B. Ruhl

Vanderbilt Law Review

What could be greener than wind power? That's easy-saving endangered species! The wind power industry has learned the hard way what timber companies, federal land management agencies, hydropower generators, state highway departments, real estate developers, small coastal villages, the Environmental Protection Agency, farmers, major metropolitan governments, and more like them around the nation know all too well-never, ever take your eyes off the Endangered Species Act ("ESA"). It may be green and one of the darlings of our nation's renewable energy future, but wind power has no "green pass" to get out of the ESA.

The reason wind power has …

Warning: May Cause Warming, Marcy N. Moody

Vanderbilt Law Review

Browsing the aisles of her local grocery store, a shopper may come across a dusty unmarked bin with carrots in it. She may see a shelf of brightly colored cereal boxes touting their contents' health benefits. Elsewhere in the store may be an iced container of sustainable shrimp from Thailand with a circled blue checkmark next to it. Perhaps there are local leeks, organic okra, or eggs from free- ranging chickens. The shopper may select the cereal on the basis of its health claims, the shrimp on the basis of its environmental friendliness, or maybe just the carrot because she …

Real-Time Economic Analysis And Policy Development During The Bp "Deepwater Horizon" Oil Spill, Joseph E. Aldy

Vanderbilt Law Review

The 2010 BP Deepwater Horizon oil spill posed near-term economic risks to the Gulf of Mexico region and raised questions about appropriate policies to mitigate catastrophic oil-spill risks. This Essay reviews the Obama Administration's assessment of the economic vulnerabilities to the spill, the Administration's May 12, 2010, legislative proposal focused on minimizing the adverse economic impacts to workers and small businesses in the Gulf of Mexico, and the effort to secure an agreement with BP to ensure that those harmed by the spill will receive full compensation. Then, the Essay discusses several of the policy reforms advanced by the Administration …

Coastal Wetland Restoration And The "Deepwater Horizon" Oil Spill, Edward B. Barbier

Vanderbilt Law Review

Both the 2005 Hurricanes Katrina and Rita and the 2010 BP oil spill have focused attention on the need to restore coastal wetland habitats along the Gulf of Mexico of the United States. As restoration is required by the Oil Pollution Act of 1990, restoring coastal wetlands will be required as part of BP's legal obligations. Although plans to restore the Mississippi River Delta are well on their way, the damages to the Gulf Coast wetlands caused by the Deepwater Horizon spill are still occurring and have yet to be fully assessed. At this critical time for wetland restoration in …

Deterring And Compensating Oil-Spill Catastrophes: The Need For Strict And Two-Tier Liability, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law Review

The BP Deepwater Horizon oil spill highlighted the glaring weaknesses in the current liability and regulatory regime for oil spills and for environmental catastrophes more broadly. This Article proposes a new liability structure for deep-sea oil drilling and for catastrophic risks generally. It delineates a two-tier system of liability. The first tier would impose strict liability up to the firm's financial resources, including insurance coverage. The second tier would be an annual tax equal to the expected costs in the coming year beyond this damages amount. Before beginning a risky operation, the proposed liability scheme would identify a single firm-the …

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen, Madeline Gottlieb, Joshua Linn, Nathan Richardson

Vanderbilt Law Review

Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by a firm; and (2) there may be principal-agent …

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen

Vanderbilt Law Review

Nathan Richardson 64 Vand. L. Rev. 1853 (2011) Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by …

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, James Salzman

Vanderbilt Law Review

In 1988, candidate George H. W. Bush was in a tight race for the presidency, behind in the polls to the Democratic challenger, Michael Dukakis. Stung by the D+ grade given by the League of Conservation Voters, Bush was searching for a way to claw back some of the environmental vote.' He saw an opening in wetlands. Perceived as worthless swamps and wasted development opportunities for most of our nation's history, conversion of wetlands for agricultural and urban land uses has resulted in a staggering loss of resources. Beginning in the 1970s, however, views started to change, with growing recognition …

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law Review

"A cardinal principle in dealing with every type of legal arrangement is to keep steadily in view the kinds of people to whom the directions of the arrangement in question are initially addressed-who the people are, in other words, who are expected to act or refrain from acting in accordance with the arrangement if it works successfully, and under what circumstances they are expected to act."

If asked to envision a polluter, most of us would describe a tall stack from a large industrial facility billowing smoke or a pipe releasing foaming liquid into a stream. The environmental laws and …

Understanding Causation And Threshold Of Release In Cercla Liability: The Difference Between Single- And Multi-Polluter Contexts, Aaron Cooper

Vanderbilt Law Review

Toxic waste has become an increasing public health problem in America.' Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act CCERCLA" or "the Ace) in 1980, as a means to improve the efficiency of hazardous waste site cleanups. CERCLA encourages parties to clean up toxic sites by allowing those parties to recover response costs from potentially responsible parties (TRPs"). To accomplish this goal, CERCLA contains an expansive liability scheme that imposes strict liability on, among others, a party that has released or threatened release of a toxic substance that has caused or may cause the incurrence of response costs. …

Recovering Environmental Cleanup Costs Under The Resource Conservation And Recovery Act: A Potential Solution To A Persistent Problem, Randall J. Butterfield

Vanderbilt Law Review

The rise of environmental concerns in the 1950s and 1960s' led Congress to adopt a number of statutes designed to curtail the pro- duction of air and water pollution as well as to promote the proper handling, storage, and disposal of those substances capable of contaminating the nation's natural resources. Citizen suit provisions were eventually incorporated into these environmental statutes in an effort to supplement what many perceived to be less than diligent governmental enforcement measures. However, despite early congressional efforts to regulate air and water pollution, disposal of hazardous waste on land went largely unregulated. This legislative oversight resulted …

Venue For Offshore Environmental Crimes: The Seaward Limits Of The Federal Judicial Districts, M. Benjamin Cowan

Vanderbilt Law Review

Consider the following scenario: USA Oil, an American company incorporated in Delaware with its principal place of business in California, has been conducting ongoing oil drilling operations in the Gulf of Mexico. The company operates three oil platforms off the Texas coast. One is located two miles offshore, another six miles offshore, and the third ten miles offshore.

Federal authorities receive notice that on several occasions since the company began operating these rigs, it deliberately allowed large quantities of oil to leak into the Gulf from each of them. The government seeks to indict USA Oil on three counts of …