Law Commons^™

The Implementation Gap In Environmental Law, Daniel A. Farber

Daniel A Farber

The gap between legislative expectations and actual outcomes is of central importance to the legal regime. Much of the work of environmental lawyers involves compliance or enforcement efforts, not rulemaking. Even in terms of the issuance of environmental rules, there can be substantial deviations between what the lawmaker expected and what actually takes place. This Article discusses two types of gaps between the statutory design and actual implementation. In some situations, something that is legally mandated simply fails to happen. Deadlines are missed, standards are ignored or fudged, or enforcement efforts misfire. The result is incomplete implementation, falling short of …

Assessing The Climate Impacts Of U.S. Trade Agreements, Matthew C. Porterfield, Kevin P. Gallagher, Judith Claire Schachter

Michigan Journal of Environmental & Administrative Law

Meeting the ambitious goals of the Paris Agreement will require the United States and other major greenhouse gas (GHG) emitters to integrate climate change considerations into all relevant areas of economic policy. The United States, however, has conspicuously failed to do so with regard to international trade negotiations. International trade agreements tend to increase GHG emissions due to the economic effects of trade liberalization, including increases in the scale of economic activity and changes in the composition of the affected economies. Trade agreements can also affect climate change in less quantifiable but potentially more significant ways by restricting the ability …

Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin

Michigan Journal of Environmental & Administrative Law

Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on …

Equitable Allocation Of Climate Adaptation Finance - Considering Income Levels Alongside Vulnerability, Patricia Galvao-Ferreira

Law Publications

The 2015 Paris Agreement elevates the goal of climate adaptation to the same level of importance as the goal of climate mitigation, and emphasizes the need to mobilize finance for climate adaptation in developing countries. As of February 2017, however, the financial gap for climate adaptation remained monumental. With the administration of US President Donald Trump threatening to interrupt American financial flows to the climate regime, developing countries are expressing growing concern about the ability of developed country parties to mobilize enough finance to meet the sizeable costs of their climate adaptation needs. In this context, the question of how …

Water Security, Rhett B. Larson

Northwestern University Law Review

Climate change, as the dominant paradigm in natural resource policy, is obsolete and should be replaced by the water security paradigm. The climate change paradigm is obsolete because it fails to adequately resonate with the concerns of the general public and fails to integrate fundamental sustainability challenges related to economic development and population growth. The water security paradigm directly addresses the main reasons climate change ultimately matters to most people—droughts, floods, plagues, and wars. Additionally, this new proposed paradigm better integrates climate change concerns with other pressing global sustainability challenges—including that economic development and population growth will require 50% more …

A Comparative Study On Carbon Emission Reduction Systems, Mingde Cao

Dissertations & Theses

The overwhelming majority of scientists have concluded that global warming is unequivocal. The Intergovernmental Panel on Climate Change (IPCC) fifth report in 2013 concluded that the challenge of climate disruption to human beings is even more imperative than the previous report claimed, and that anthropogenic greenhouse gases (GHGs) emissions have extremely likely been the dominant causes of the observed global warming since the mid-20th century.

Anthropogenic GHGs emissions have many implications, including more intensive, extreme meteorological events, spreading of diseases, and threatening human health and life. Climate change also causes injustice in human society because of the dislocation of the …

Adapting To Climate Change With Law That Bends Without Breaking, Holly Doremus

Holly Doremus

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.

The Law Of The Sea Convention And Sea Level Rise After The South China Sea Arbitration, Stuart Kaye

International Law Studies

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …

Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra

All Faculty Publications

Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring …

Nineteenth Annual Frank M. Coffin Lecture On Law And Public Service: Community, Rights, And Climate: A Challenge To A Clever Species, Jonathan Lash

Maine Law Review

I want to talk to you today about individual rights and community. I have been struck in reading the Judge’s books and recalling working with him how he honored two competing ideas simultaneously: respect for individual liberty, and a deep belief in the power of government to enhance fairness and promote public well-being. As I shall explain, the tension between those ideas has become increasingly important in the debate over how to address global environmental problems.

Presidential Executive Orders Duel Over Floodplain Definition As S.E. Florida Prepares For Sea Level Rise, Brion Blackwelder

Faculty Scholarship

No abstract provided.

Voter Psychology And The Carbon Tax, Gary M. Lucas Jr

Faculty Scholarship

Economists across the political spectrum argue that a carbon tax is the most effective and economically efficient policy for addressing climate change. Voters, however, strongly oppose the carbon tax and instead favor “green” subsidies and command-and-control regulations. If carefully designed, these policies might complement a carbon tax, but by themselves, they will make global warming mitigation incredibly expensive and perhaps even infeasible. Moreover, if poorly designed, subsidies and regulations can be counterproductive.

This Article argues that the public dislikes the carbon tax because the tax possesses attributes that make it psychologically unappealing relative to other climate policy instruments. The Article …

Rethinking Force Majeure In Public International Law, Myanna Dellinger

Pace Law Review

Climate change is one of today’s most significant and complex problems. The number and level of severity of extreme weather events is increasing rapidly around the world. One year after the next, we learn that heat records have been broken once again. Climate change has been traced to a wide range of severe problems around the world, ranging from the obvious damage caused by hurricanes, floods, extreme rainfall, prolonged droughts, wildfires and a host of other weather-related issues to the perhaps less obvious such as physical and mental illnesses, “civil unrest, riots, mass migrations and perhaps wars caused by water …

How People Update Beliefs About Climate Change: Good News And Bad News, Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro, Tali Sharot

Cornell Law Review

People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who are not sure that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By …

Bleached! The Catastrophe Management Of Corals, Irus Braverman

Journal Articles

Corals have recently emerged as both a sign and a measure of the imminent catastrophic future of life on earth and, as such, have become the focus of intense conservation management. Bleached! draws on in-depth interviews and participatory observations with coral scientists and managers to explore the management of the corals’ ecological catastrophe to come. The article starts by describing the unique life of corals, the importance of calculability in catastrophe management, and the coral scientists’ preoccupation with classifying, counting, and seeing in their attempt to comprehensibly monitor corals and anticipate their decline. Algorithmic models and elaborate temporal analyses are …

Water, Water, Nowhere: Adapting Water Rights For A Changing Climate, Caleb Hall

Sustainable Development Law & Policy

No abstract provided.

The Geography Of Climate Change Litigation: Implications For Transnational Regulatory Governance, Hari M. Osofsky

Hari Osofsky

This Article aims to forward the dialogue about transnational regulatory governance through a law and geography analysis of climate change litigation. Part II begins by considering fundamental barriers to responsible transnational energy production. Part III proposes a place-based approach to dissecting climate change litigation and a model for understanding its spatial implications. Parts IV through VI map representative examples of climate change litigation in subnational, national, and supranational fora. The Article concludes by exploring the normative implications of this descriptive geography; it engages the intersection of international law, international relations, and geography as a jumping-off point for a companion article.

Multiscalar Governance And Climate Change: Reflections On The Role Of States And Cities At Copenhagen, Hari M. Osofsky

Hari Osofsky

No abstract provided.

Scaling "Local": The Implications Of Greenhouse Gas Regulation In San Bernardino County, Hari M. Osofsky

Hari Osofsky

This Essay analyzes local climate regulation in San Bernardino County as a window into the complexities of defining a local scale in an interconnected world. In so doing, it aims to contribute to the Symposium's broader dialogue about "Territory Without Boundaries" and the Panel's more specific discussion of "Urban Territory in a Global World." As a purely territorial matter, U.S. cities and counties differ substantially in their sizes, the quantity and physical characteristics of their land, the size and density of their populations, and the needs of their citizens. Structurally, these localities remain administrative subunits of states, but they also …

Climate Change And Crises Of International Law: Possibilities For Geographic Reenvisioning, Hari M. Osofsky

Hari Osofsky

No abstract provided.

A Landscape Of Thermal Inequity: Social Vulnerability To Urban Heat In U.S. Cities, Bruce Coffyn Mitchell

USF Tampa Graduate Theses and Dissertations

A combination of the urban heat island effect and a rising temperature baseline resulting from global climate change inequitably impacts socially vulnerable populations residing in urban areas. This dissertation examines distributional inequity of exposure to urban heat by socially disadvantaged groups and minorities in the context of climate justice. Using Cutter’s hazards-of-place model, variables indicative of social vulnerability and biophysical vulnerability are statistically tested for their associations. Biophysical vulnerability is conceptualized utilizing a urban heat risk index calculated from summer 2010 LANDSAT imagery to measure land surface temperature , structural density through the normalized difference built-up index, and vegetation abundance …

2014, February 26 – Proposal To Abolish Or Limit Water Data Confidentiality To 1-5 Years: Improving Water Resource Management And Increasing Net Water Benefits In The State Of California

Related Research and Documents

A February 26, 2014, submission by Dr. Peter Reinelt to the California State Water Resources Control Board his Proposal to Abolish or Limit Water Data Confidentiality. This proposal provided a conceptual economic framework for a comprehensive review of the economics of water data confidentiality with the goal, in furtherance of both public and private interest, of improving water resource management and increasing net water benefits in the State of California.

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

All Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Friends Or Foes? The Problem Of South Florida’S Invasive Mangroves, Kelly J. Cox, Rafael J. Araújo

Pace Environmental Law Review

A recent global review on the impacts of climate change on mangroves concluded that different regions will experience varying degrees of impacts due to the variability of expected changes in climate (shifts in precipitation, frequency and intensity of storms, droughts, sea level rise, change of ocean currents, increases in CO2 concentrations, etc.) and the variety of types and mangrove assemblages growing in these regions, including different species composition of mangrove forests. In North America and the Caribbean, these changes are dependent upon a predicted higher frequency (and intensity) of tropical storms, sea level rise, changes in patterns of precipitation, and …

Labor Leading On Climate: A Policy Platform To Address Rising Inequality And Rising Sea Levels In New York State, J. Mijin Cha

Pace Environmental Law Review

With the renewed need for state action, this paper presents a case study of a labor-led initiative in New York State that seeks to address both economic inequality and the climate crisis. It discusses how organized labor, which has historically represented fossil fuel workers and has not been seen as a traditional climate ally, put forth a comprehensive climate jobs plan that could meaningfully reduce carbon emissions while also creating good, family-sustaining jobs to reduce income inequality. As the need for a broader coalition to advocate for sensible climate policy increases, this case study provides a road map for states …

How Oil And Gas Companies Can Help Meet The Global Goals On Energy And Climate Change, Lisa E. Sachs, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The sustainable development goals (SDGs) and the Paris Agreement lay out a global consensus on the need to curb human-induced climate change and to achieve sustainable development. These concepts are linked. The urgency of addressing climate change is critical for global efforts to reduce poverty and advance sustainable development, but also climate-change mitigation must be pursued in a manner consistent with ending poverty, promoting economic development, respecting human rights, and ensuring social inclusion. CCSI and the UN Sustainable Development Solutions Network (SDSN) have published a briefing note summarizing the ways in which international oil and gas companies can help expand …

Wrongful Benefit & Arctic Drilling, Nicolas Cornell, Sarah E. Light

Articles

The law contains a diverse range of doctrines — “slayer rules” that prevent murderers from inheriting, restrictions on trade in “conflict diamonds,” the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit …

Global Justice In The Anthropocene, Carmen G. Gonzalez

Carmen G. Gonzalez

Regional Human Rights Regimes And Environmental Protection: A Comparison Of European And American Human Rights Regimes’ Histories, Current Law, And Opportunities For Development, Don Mccrimmon

PhD Dissertations

This work reviews the Inter-American and European human rights regimes and their abilities to respond to point-source pollution, climate change, and ecosystem conservation. It begins by reviewing leading human rights theories and the development of the relationship between human rights and the environment. It then focuses on European human rights, both under the ECHR and the CFREU, and highlights the ECHR’s ability to respond to instances of point-source-pollution though the right to privacy. The work then looks at the Inter-American human rights regime, its structure, history and ability to respond to environmental challenges. It reviews the regime’s tendency to use …

Dual Environmentalism: Demand Response Mechanisms In Wholesale And Retail Energy Markets, Sarah M. Main

Pace Environmental Law Review

This note argues that a dual jurisdictional approach to demand response programming is better suited to mitigate environmental harms than an “either-or” regulatory model. Through an exploration of FERC’s authority over wholesale demand response, state authority over retail-level demand response, and implications for electricity and capacity markets arising out of the Court’s decision in FERC v. EPSA, this note will offer effective legal mechanisms for mitigating environmental costs, while fostering environmental benefits. The next section of this note analyzes the strengths and weaknesses of state and federal regulatory approaches to demand response in isolation.

Based on this assessment, this note …