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Full-Text Articles in Law
Do Mess With Texas ... ? Why Rolling Easements May Provide A Solution To The Loss Of Public Beaches Due To Climate Change-Induced Landward Coastal Migration, Carolyn Ginno
San Diego Journal of Climate & Energy Law
This paper explores the viability of rolling easements in California as well as how they might be implemented. California has the opportunity to use rolling easement doctrine to fill the public policy vacuum created by the Severance decision. By messing with Texas; precedent, California could utilize rolling easements to preserve public access to its beaches in the wake of coastal inundation resulting from climate change.
Determining whether and how rolling easements might be used in California requires an understanding of climate change as a man-made phenomenon and the impacts it has on coastal property. The next sections will outline this …
From Top-Down To Bottom-Up Climate Policy: New Challenges In Carbon Market Design, Jonas Monast
From Top-Down To Bottom-Up Climate Policy: New Challenges In Carbon Market Design, Jonas Monast
San Diego Journal of Climate & Energy Law
This Article explores the shift from top-down to bottom-up approaches to carbon market design, focusing on three strategies that have emerged since 2009: the California Cap-and-Trade Program, the Clean Power Plan, and the UNFCCC process. The Article then examines the prospects for broad multilateral markets to emerge under a bottom-up approach and identifies three pathways to streamline market design choices: a coordinated approach; a dominant actor approach; and a common elements approach.
Quick Fixes Or Real Remedies? The Benefits And Limitation Of Climate And Energy Fast Policy, Melissa Powers, Edward Jewell, Joni Sliger
Quick Fixes Or Real Remedies? The Benefits And Limitation Of Climate And Energy Fast Policy, Melissa Powers, Edward Jewell, Joni Sliger
San Diego Journal of Climate & Energy Law
To avoid these shortcomings, this article recommends that Oregon and other states lacking meaningful climate mitigation and energy decarbonization strategies slow down their policymaking so that they can first develop a long-term plan. These states should also ensure that their governance structures are in order. Specifically, states should ensure they have a governance system capable of designing, from the ground-up, a comprehensivestrategy to decarbonize the energy system and substantially reduce greenhouse gases by the middle of the century.[1] An adequate governance structure would also ensure that regulatory and planning agencies have the expertise, independence, and capacity to evaluate existing laws, …
Carbon Pricing Initiatives In Western North America: Blueprint For Global Climate Change Policy, Nancy Shurtz
Carbon Pricing Initiatives In Western North America: Blueprint For Global Climate Change Policy, Nancy Shurtz
San Diego Journal of Climate & Energy Law
In the absence of effective international and federal initiatives to combat the impacts of global climate change, many state, local and regional jurisdictions are passing or proposing measures to curb carbon dioxide (CO2) emissions. The province of British Columbia, Canada, as well as the cities of San Francisco, California and Boulder, Colorado have carbon taxes in place, and similar actions have been proposed in the Oregon and Washington state legislatures. The state of California and the province of Québec have linked together in a joint cap-and-trade system. This Article will examine the fundaments of carbon taxation, including identification of the …
Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan
Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan
San Diego Journal of Climate & Energy Law
This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …
Carbonite Legal Conflict In California, Steven Ferrey
Carbonite Legal Conflict In California, Steven Ferrey
San Diego Journal of Climate & Energy Law
This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …
Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith
Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith
San Diego Journal of Climate & Energy Law
The potential for shuffling in wholesale power markets thwarts California’s ability to meet its AB 32 GHG emission reduction goals, and may even lead to emissions increases. Yet, as California’s efforts illustrate, resource shuffling is extremely difficult to regulate at the state level. Short of California aggressively reducing its emissions limits to reflect the leakage problem of shuffling, the state is incapable of solving the problem on its own.
As states follow California’s lead in crafting their own approaches to regulating GHG emissions, national solutions will be necessary to address the problem of resource shuffling, given interstate markets in wholesale …
South Africa's Electricity Crisis: The Need To Reconcile Environmental Policy Decisions With International Treaties, Brittany D. Botterill
South Africa's Electricity Crisis: The Need To Reconcile Environmental Policy Decisions With International Treaties, Brittany D. Botterill
San Diego Journal of Climate & Energy Law
This Comment examines whether South Africa’s treaty obligations conflict with the requirement of the country’s government to provide electricity to a burgeoning home-owning population. Section II introduces Eskom, South Africa’s largest utility company, which produces most of the electricity used in South Africa and surrounding countries. Section III discusses South Africa’s role in the Southern Africa Power Pool and the additional obligations this membership places on the country. Section IV then examines the controversial loan that South Africa received from the World Bank to assist in building the Medupi coal-fired power plant. Section V illustrates South Africa’s climate change obligations …
State Renewable Portfolio Standards: Is There A "Race" And Is It "To The Top"?, Lincoln L. Davies
State Renewable Portfolio Standards: Is There A "Race" And Is It "To The Top"?, Lincoln L. Davies
San Diego Journal of Climate & Energy Law
This Article proceeds in six parts. Part II offers a primer on RPSs, describing RPSs primary traits, how the laws are designed, why they are enacted, and how that relates to regulatory races. Part III overviews the literature on regulatory races, contrasting races to the bottom with races to the top. Part IV conceptualizes how state enactments of RPSs might be viewed as a race to the top. Part V examines evidence on whether RPSs can in fact be understood as a regulatory race. Using this evidence, Part V determines that state RPSs do not appear to be trending toward …
Why Not A Regional Approach To State Renewable Power Mandates?, Kirsten H. Engel
Why Not A Regional Approach To State Renewable Power Mandates?, Kirsten H. Engel
San Diego Journal of Climate & Energy Law
There is much to be said in favor of a regional approach with respect to renewable energy mandates. First, uniformity in the particulars of state RPS laws would assist the growing interstate renewable energy market. Second, allowing renewable power that is generated anywhere but delivered locally to satisfy the RPS of any of the states within the region, should enhance the reliability of the market for renewable power, increase the amount of intermittent power accommodated by the grid, and lower the price of renewable power. Each of these effects will strengthen the regional market for renewable power to the overall …
Solar Energy Development On The Federal Public Lands: Environmental Trade-Offs On The Road To A Lower Carbon Future, Robert L. Glicksman
Solar Energy Development On The Federal Public Lands: Environmental Trade-Offs On The Road To A Lower Carbon Future, Robert L. Glicksman
San Diego Journal of Climate & Energy Law
The federal government has endorsed more extensive use of the federal public lands for the production of solar power, both to reduce the greenhouse gas emissions that contribute to climate change and to bolster the security of domestic energy supplies. Spurred by grant money made available under the American Recovery and Reinvestment Act of 2009, the Bureau of Land Management (BLM) in 2010 approved nine utility-scale solar projects on public lands in California and Nevada. These projects were designed to avoid adversely affecting the habitats of endangered and threatened species that frequent the desert southwest and cultural resources important to …
Administrative Absurdity: Why The Judiciary Should Uphold Epa's Use Of The Administrative Necessity And Absurd Results Doctrines Within The Tailoring Rule., David P. Vincent
Administrative Absurdity: Why The Judiciary Should Uphold Epa's Use Of The Administrative Necessity And Absurd Results Doctrines Within The Tailoring Rule., David P. Vincent
San Diego Journal of Climate & Energy Law
This Comment analyzes the strengths and weaknesses of the arguments advanced by EPA as well as its opponents regarding the Agencys reliance on these administrative law doctrines to tailor PSD and Title V applicability criteria. The Comment concludes with an explanation of why the judiciary will likely rule in EPAs favor in this instance.
Part I of this Comment introduces the Tailoring Rule, including its background and the emissions thresholds it seeks to implement regarding PSD and Title V programs. Part II presents EPAs legal basis for the creation and subsequent implementation of the Tailoring Rule, including the concept of …
The Politics Of Clean Energy: Moving Beyond The Beltway, Joseph P. Tomain
The Politics Of Clean Energy: Moving Beyond The Beltway, Joseph P. Tomain
San Diego Journal of Climate & Energy Law
This Article argues that the United States can achieve a new and smart energy policy and that we are taking active steps in this direction. Off of the Hill, at 1600 Pennsylvania Avenue, there is clear thinking about clean energy. Consider President Obamas choice for Secretary of Commerce, John Bryson. Bryson has been the CEO of a public electric utility, a founder of the Natural Resources Defense Council, and sits on the boards of such organizations as Boeing and Disney and clean energy firms like Coda Automotive and BrightSource Energy exactly the right job description for a clean energy advocate. …
Port And Coastal State Control Of Atmospheric Pollution, Michael W. Reed
Port And Coastal State Control Of Atmospheric Pollution, Michael W. Reed
San Diego Journal of Climate & Energy Law
Controlling atmospheric pollution which originates beyond national borders always presents difficult issues. The problems are multiplied when the source is a merchant vessel, registered under a foreign flag of convenience and operating seaward of state and federal sovereign limits. Nevertheless, international law provides alternative approaches through which the coastal sovereign may protect its onshore environmental interests.
The purpose of this paper is to lay out the problems, both factual and legal, and discuss means by which they may be resolved. California is used as a case study. The state has long suffered from excessive air pollution. Congress acknowledged the state?s …
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 …
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 …
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 …
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 …