Law Commons^™

Regulating Greenhouse Gas Emissions Under The Endangered Species Act, Eric Biber

Michigan Journal of Environmental & Administrative Law

Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.

In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Michigan Journal of Environmental & Administrative Law

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …

International Advisory Proceedings On Climate Change, Benoit Mayer

Michigan Journal of International Law

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused.

This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and …

Environmental Governance By Contract: The Growing Role Of Supply Chain Contracting, Michael P. Vandenburgh, Patricia A. Moore

Michigan Journal of Environmental & Administrative Law

Corporate net zero climate commitments and environmental, social, and governance (ESG) policies have the potential to bypass barriers to international, national, and subnational government action on climate change and other environmental issues. This Article presents the results of a new empirical study that demonstrates the remarkably widespread use of environmental supply chain contracting requirements. The study finds that roughly 80% of the ten largest firms in seven global sectors include environmental requirements in supply chain contracting, a substantial increase over the 50% reported by a comparable study fifteen years ago. The Article concludes that the prevalence of environmental supply chain …

Civil Rights In Times Of Uncertainty (The Anthropocene), Jeffrey Omari

Michigan Law Review

Although there have been significant civil rights gains made in recent decades, the United States is now experiencing a resurgence of many of the societal ills that have plagued the country for decades. From an insurrection that was seemingly inspired by white supremacist ideology to ongoing examples of police brutality against Black people, anti-Asian violence, anti-LGBTQ violence, and recurring islamophobia, the country sits at an apparent crossroads. There is an urgent need to advance a civil rights agenda that addresses the impact of these societal ills on the affected communities. At the same time, however, we are confronting these ills …

Evaluating Project Need For Natural Gas Pipelines In An Age Of Climate Change, Alexandra B. Klass

Law & Economics Working Papers

As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates …

Significant Impacts Under Nepa: The Social Cost Of Greenhouse Gases As A Tool To Mitigate Climate Change, Sydney Hofferth

Michigan Journal of Environmental & Administrative Law

The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement …

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

Regulating For Energy Justice, Alexandra B. Klass, Gabriel Chan

Articles

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decision making, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the …

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Is Climate Change A Threat To International Peace And Security?, Mark Nevitt

Michigan Journal of International Law

The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

Articles

With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

What A Difference A State Makes: California’S Authority To Regulate Motor Vehicle Emissions Under The Clean Air Act And The Future Of State Autonomy, Chiara Pappalardo

Michigan Journal of Environmental & Administrative Law

Air pollutants from motor vehicles constitute one of the leading sources of local and global air degradation with serious consequences for human health and the overall stability of Earth’s climate. Under the Clean Air Act (“CAA”), for over fifty years, the state of California has served as a national “laboratory” for the testing of technological solutions and regulatory approaches to improve air quality. On September 19, 2019, the Trump Administration revoked California’s authority to set more stringent pollution emission standards. The revocation of California’s authority frustrates ambitious initiatives undertaken in California and in other states to reduce local air pollution …

Natural Resources And Natural Law Part Ii: The Public Trust Doctrine, Robert W. Adler

Michigan Journal of Environmental & Administrative Law

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and …

Look To Windward: The Michigan Environmental Protection Act And The Case For Atmospheric Trust Litigation In The Mitten State, Jonathan M. Coumes

Michigan Journal of Environmental & Administrative Law

Failure to address climate change or even slow the growth of carbon emissions has led to innovation in the methods activists are using to push decisionmakers away from disaster. In the United States, climate activists frustrated by decades of legislative and executive inaction have turned to the courts to force the hand of the state. In their most recent iteration, climate cases have focused on the public trust doctrine, the notion that governments hold their jurisdictions’ natural resources in trust for the public. Plaintiffs have argued that the atmosphere is part of the public trust and that governments have a …

Implementing Nepa In The Age Of Climate Change, Jayni Foley Hein, Natalie Jacewicz

Michigan Journal of Environmental & Administrative Law

The national government has a crucial role to play in combating climate change, yet federal projects continue to constitute a major source of United States greenhouse gas emissions. Under the National Environmental Policy Act, agencies must consider the environmental impacts of major federal actions before they can move forward. But agencies frequently downplay or ignore the climate change impacts of their projects in NEPA analyses, citing a slew of technical difficulties and uncertainties. This Article analyzes a suite of the most common analytical failures on the part of agencies with respect to climate change: failure to account for a project’s …

Litigating For The Homeland: An Indian Treaty Framework To Climate Litigation In The Wake Of Juliana, Evan Neustater

Michigan Journal of Environmental & Administrative Law

Climate change is an increasingly pressing issue on the world stage. The federal government, however, has largely declined to address any problems stemming from the effects of climate change, and litigation attempting to force the federal government to take action, as highlighted by Juliana v. United States, has largely failed. This Note presents the case for a class of plaintiffs more likely to succeed than youth plaintiffs in Juliana—federally recognized Indian tribes. Treaties between the United States and Indian nations are independent substantive sources of law that create enforceable obligations on the federal government. The United States maintains a …

The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson

Michigan Journal of Environmental & Administrative Law

The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most …

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose …

The Possibility Of Prosecuting Corporations For Climate Crimes Before The International Criminal Court: All Roads Lead To The Rome Statute?, Donna Minha

Michigan Journal of International Law

Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on …

Applying The Pennsylvania Environmental Rights Amendment Meaningfully To Climate Disruption, Robert B. Mckinstry Jr., John C. Dernbach

Michigan Journal of Environmental & Administrative Law

The Pennsylvania Constitution contains a unique Environmental Rights Amendment (ERA), which recognizes an individual right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA also includes a public trust element that makes “Pennsylvania’s public natural resources . . . the common property of all the people, including generations yet to come.” It makes the Commonwealth the “trustee of these resources,” requiring it to “conserve and maintain them for the benefit of all the people.” Recent decisions by the Pennsylvania Supreme Court (the Court) in Robinson Township v. …

Beyond Localism: Harnessing State Adaptation Lawmaking To Facilitate Local Climate Resilience, Sarah J. Adams-Schoen

Michigan Journal of Environmental & Administrative Law

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans …

Grasping For Energy Democracy, Shelley Welton

Michigan Law Review

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

Climate Change Litigation In The Federal Courts: Jurisdictional Lessons From California V. Bp, Gil Seinfeld

Michigan Law Review Online

On March 21 of this year, something unusual took place at a U.S. courthouse in San Francisco: a group of scientists and attorneys provided Federal District Judge William H. Alsup with a crash course in climate science. The five-hour tutorial was ordered by Judge Alsup in connection with a lawsuit that had been filed by the cities of Oakland and San Francisco (“the Cities”) against the world’s five largest producers of fossil fuels. The central issue in the case is whether the energy companies can be held liable for continuing to market fossil fuels long after they learned that such …

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 …

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 …

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Michigan Journal of Environmental & Administrative Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren A. Prum

Michigan Journal of Environmental & Administrative Law

A United Nations Environmental Programme report addressing climate change states that the built environment in both emerging and developed countries accounts for more than forty percent of global energy usage and at least one third of the world’s greenhouse gas emissions. The report further asserts that the built environment offers an unsurpassed opportunity to supply cost effective, lasting, and meaningful reductions in greenhouse gas emissions. In response to this call to action, state and local governments in the U.S. have turned to a variety of policies to ensure that real estate developments within their jurisdictions further green building objectives. However, …