Law Commons^™

Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl

Vanderbilt Law School Faculty Publications

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 energy …

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed …

Panarchy And The Law, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Panarchy theory focuses on improving theories of change in natural and social systems to improve the design of policy responses. Its central thesis is that successfully working with the dynamic forces of complex adaptive natural and social systems demands an active adaptive management regime that eschews optimization approaches that seek stability. This is a new approach to resources management, and yet no new theory of how to do things in environmental and natural resources management, particularly one challenging entrenched ways of doing things and the interests aligned around them, is likely to gain traction in practice if it cannot gain …

Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Drawing on the recent financial crisis, we introduce the concept of macro-risk. We distinguish between micro-risks, which can be managed within conventional economic frameworks, and macro-risks, which threaten to disrupt economic systems so much that a different approach is required. We argue that catastrophic climate change is a prime example of a macro-risk. Research by climate scientists suggests disturbingly high likelihoods of temperature increases and sea level rises that could cause the kinds of systemic failures that almost occurred with the financial system. We suggest that macro-risks should be the principal concern of rational risk assessment and management, but they …

Legal Techniques For Dealing With Scientific Uncertainty In Environmental Law, Jorge E. Vinuales

Vanderbilt Journal of Transnational Law

This Article analyzes how scientific uncertainty is handled in international environmental law. It identifies ten legal techniques used for this purpose (i.e., precautionary reasoning; framework-protocol approach; advisory scientific bodies; law-making by treaty bodies; managerial approaches to compliance; prior informed consent; environmental impact assessment and monitoring; provisional measures; evidence; and facilitated liability) and links them to four different stages of development of environmental regimes (i.e., advocacy, design, implementation, and reparation). These techniques are illustrated by reference to some fifteen environmental treaties and other instruments as well as through a detailed case study focusing on the climate change regime.

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Background Principles, Takings, And Libertarian Property: A Reply To Professor Huffman, J.B. Ruhl, Michael C. Blumm

Vanderbilt Law School Faculty Publications

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in "Lucas v. South Carolina" Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but …

Private Certification Versus Public Certification In The International Environmental Arena, Patricia A. Moye

Vanderbilt Journal of Transnational Law

In recent decades, the world's various fisheries have seen a number of problems, primarily depletion of fish stocks due to overfishing. While the UN has created some soft law, including sustainable fishing standards, to deal with the problem of fisheries depletion, no binding international laws currently exist. Several entities have decided to deal with the problem on their own, through eco-labeling programs. The Marine Stewardship Council, a private entity not directly affiliated with the government of any country, has created such a program. In addition, some governments have created similar programs, including Japan through its Marine Eco-Label Japan program. While …

Energy And Climate Change: Key Lessons For Implementing The Behavioral Wedge, Michael P. Vandenbergh, Paul C. Stern, Gerald T. Gardner, Thomas Dietz, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

The individual and household sector accounts for roughly 40 percent of United States energy use and carbon dioxide emissions, yet the laws and policies directed at reductions from this sector often reflect a remarkably simplistic model of behavior. This Essay addresses one of the obstacles to achieving a “behavioral wedge” of individual and household emissions reductions: the lack of an accessible, brief summary for policymakers of the key findings of behavioral and social science studies on household energy behavior. The Essay does not provide a comprehensive overview of the field, but it discusses many of the leading studies that demonstrate …

Siting Transmission Lines In A Changed Milieu: Evolving Notions Of The "Public Interest" In Balancing State And Regional Considerations, Jim Rossi, Ashley C. Brown

Vanderbilt Law School Faculty Publications

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition …

Arctic Warming: Environmental, Human, And Security Implications, Mary B. West

Vanderbilt Journal of Transnational Law

Arctic warming has myriad implications for the Arctic environment, residents, and nations. Although definitive predictions are difficult, without question the scope and rapidity of change will test the adaptive capacities of the Arctic environment as well as its residents. Warming is affecting marine ecosystems and marine life, terrestrial ecosystems, and the animals and people who depend on them. Human impacts include effects on access to food and resources; health and well being; and community cohesion, traditions, and culture. Increased shipping and resource activity create the need for additional maritime presence and security; better environmental and safety regulations; peaceful resolution of …

Cities, Green Construction, And The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The geographic footprint of cities--the space they occupy--is relatively small in comparison to their ecological footprint, which is measured in terms of impact on the sustainability of resources situated mostly outside of the urban realm. Ironically, the Endangered Species Act (ESA), though widely regarded as one of the most powerful environmental laws, has been and continues to be administered with respect to urbanized land masses primarily with the objective of managing their geographic footprints. This Article uses the example of "green construction" techniques to explore this disconnect between the macro-scale contribution of cities' ecological footprints to species endangerment and the …

Symposium Introduction, Peter C. Marshall, Jr.

Vanderbilt Journal of Transnational Law

The last ten years have been the warmest on record. During 2007, Arctic sea ice dropped to the lowest levels since measurements began in 1979. Valuable natural resources in the Arctic, including gas and oil, are becoming more accessible to exploitation. The Northwest Passage--a highly desirable shipping route connecting Europe and Asia--is increasingly navigable during the summers. These changes have highlighted new and unresolved legal issues as the nations bordering the Arctic vie for control of these new waters and the resources that lie beneath them.

In February 2009, the Vanderbilt Journal of Transnational Law invited some of the most …

Who Controls The Northwest Passage?, Michael Byers, Suzanne Lalonde

Vanderbilt Journal of Transnational Law

From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. Climate change, however, is fundamentally altering the sea-ice conditions: In September 2007, the Northwest Passage was ice-free for the first time in recorded history. This Article reviews the consequences of this development, particularly in terms of the security and environmental risks that would result from international shipping along North America's longest coast. It analyzes the differing positions of Canada and …

Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster

Vanderbilt Law School Faculty Publications

We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced …

Climate Change: The China Problem, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process …

Climate Change: The Equity Problem, Michael P. Vandenbergh, Brooke A. Ackerly

Vanderbilt Law School Faculty Publications

A substantial proportion of the United States population is at or below the poverty level, yet many of the greenhouse gas emissions reduction measures proposed or adopted to date will increase the costs of energy, motor vehicles, and other consumer goods. This essay suggests that although scholarship and policymaking to date have focused on the disproportionate impact of these increased costs on the low-income population, the costs will have two important additional effects. First, the anticipated costs will generate political opposition from social justice groups, reducing the likelihood that aggressive measures will be adopted. Second, to the extent aggressive measures …

Climate Change And Consumption, Michael P. Vandenbergh, Douglas A. Kysar

Vanderbilt Law School Faculty Publications

To achieve the level of greenhouse gas emissions reductions called for by climate change experts, officials and policy analysts may need to develop an unfamiliar category of regulated entity: the consumer. Although industrial, manufacturing, retail, and service sector firms undoubtedly will remain the focus of climate change policy in the near term, individuals and households exert a greenhouse footprint that seems simply too large for policymakers to ignore in the long term. This paper, written as a foreword for the Environmental Law Reporter's symposium issue, "Climate Change and Consumption," emerges from an interdisciplinary conference of the same title held at …

Agriculture And Ecosystem Services: Strategies For State And Local Governments, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Agriculture has long been the Rubik's Cube of environmental policy. Although agriculture is a leading cause of pollution and other environmental harms, it has been resistant to regulation and remarkably successful at requiring payment to do the right thing. This article focuses on hints of movement in a new direction for agriculture, arising out of a merger between the age-old practice of paying farmers to do what is right, the fear of losing agricultural lands to suburban development, the rising fiscal burdens to state and local jurisdictions presented by new suburban development, and the new understanding that farms may hold …

Making Nuisance Ecological, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Common law nuisance doctrine has the reputation of having provided much of the strength and content of environmental law prior to the rise of federal statutory regimes in the 1970s, but since then has taken a back seat to regulatory law with respect to the environment. In particular, whereas nuisance doctrine has been criticized - many say too harshly - as being inadequate for dealing with the demands of modern pollution control, it has never been considered as having much at all to do with management of ecological concerns. Yet nuisance law evolves with changed circumstances and new knowledge. This …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Vanderbilt Law Review

What to read? or watch? or listen to? These are hard questions, not because of any scarcity of expression, but rather because of its abundance. Over 100,000 books are published in the United States each year, thousands of movies and CDs are released, and the amount of textual, musical, and visual works on the internet continues to rise exponentially. Whose work can we trust? And who knows what of it will rank among the best that has been thought and said-or even provide a few moments levity?

Admittedly, a bulging bookshelf or surfeit of films prompts an existential crisis in …

The Equator Principles: The Private Financial Sector's Attempt At Environmental Responsibility, Andrew Hardenbrook

Vanderbilt Journal of Transnational Law

The Equator Principles are a set of voluntary environmental guidelines created to manage environmental degradation that results from large-scale developmental projects in the Third World. On June 4, 2003, ten private financial institutions adopted these guidelines, and by the end of 2006 this number had grown to forty. Moreover, in June 2006 the Principles were revised, raising the level of scrutiny for companies that adhere to these guidelines.

At first blush, the adoption of the Equator Principles by private financial institutions appears to be a substantial step toward implementing environmental standards in developing countries that lack adequate regulations. However, three …

The Pardy-Ruhl Dialogue On Ecosystem Management, Part Iv: Narrowing And Sharpening The Questions, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article, fourth in a five-part dialogue appearing in the Pace ELR, further responds to Professor Bruce Pardy's critique of ecosystem management. I defend ecosystem management, arguing it does not involve the standardless, unbridled administrative discretion Pardy suggests.

Reconstructing The Wall Of Virtue: Maxims For The Co-Evolution Of Environmental Law And Environmental Science, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Much has been written lately in legal scholarship about the role of science in policy and the role of policy in science - and perhaps in no field of law has more been said about them than environmental law. Yet asking the question, "What is the proper role of science in environmental policy?" is utterly misguided, in that it suggests that science operates on the other side of a Wall of Virtue from policy. In The Honest Broker, Roger Pielke, Jr. refers to this as the "linear model" of science in society, "whereby knowledge is created in the lab, packaged …

The Carbon-Neutral Individual, Michael P. Vandenbergh, Anne C. Steinemann

Vanderbilt Law School Faculty Publications

Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated 60-80% over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly 8% of the world's total, more than the total emissions of any other country except China, and more than several …

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

No abstract provided.

The Law And Policy Beginnings Of Ecosystem Services, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006. The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the …

The Private Life Of Public Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others …

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing …

Toward A Common Law Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.