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Full-Text Articles in Law

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh Oct 2018

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.


Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer Jan 2018

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Vanderbilt Law School Faculty Publications

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA ...


Constrained Regulatory Exit In Energy Law, Jim Rossi Jan 2018

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit ...


In Appreciation Of The Tarlock Effect, J.B. Ruhl Jan 2018

In Appreciation Of The Tarlock Effect, J.B. Ruhl

Vanderbilt Law School Faculty Publications

So, what is one to do about The Tarlock Effect? It didn't take long for me to realize early in my academic career-well before my foray into climate change adaptation policy-that there's just no escaping it. So I learned to appreciate it. Better yet, take advantage of The Tarlock Effect! My way of doing so is easy: when the next brilliant law review idea pops into my head, I read Dan's CV, knowing he probably has said something meaningful on the theme and hoping not everything worth saying. When I find the inevitable-indeed he has thought of ...


Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh Jan 2018

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big ...


Private Governance Responses To Climate Change: The Case Of Global Civil Aviation, Michael P. Vandenbergh, Daniel J. Metzger Jan 2018

Private Governance Responses To Climate Change: The Case Of Global Civil Aviation, Michael P. Vandenbergh, Daniel J. Metzger

Vanderbilt Law School Faculty Publications

This Article explores how private governance can reduce the climate effects of global civil aviation. The civil aviation sector is a major contributor to climate change, accounting for emissions comparable to a top ten emitting country. National and international governmental bodies have taken important steps to address civil aviation, but the measures adopted to date are widely acknowledged to be inadequate. Civil aviation poses particularly difficult challenges for government climate mitigation efforts. Many civil aviation firms operate globally, emissions often occur outside of national boundaries, nations differ on their respective responsibilities, and demand is growing rapidly. Although promising new technologies ...


Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond Jan 2017

Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond

Vanderbilt Law School Faculty Publications

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy ...


Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass Jan 2017

Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass

Vanderbilt Law School Faculty Publications

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that ...


Ferc V. Epsa, Jim Rossi, Jon Wellinghoff Jan 2016

Ferc V. Epsa, Jim Rossi, Jon Wellinghoff

Vanderbilt Law School Faculty Publications

This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under ...


The Brave New Path Of Energy Federalism, Jim Rossi Jan 2016

The Brave New Path Of Energy Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes.

These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also ...


Global Public Goods, Governance Risk, And International Energy, Timothy Meyer Jan 2012

Global Public Goods, Governance Risk, And International Energy, Timothy Meyer

Vanderbilt Law School Faculty Publications

Scholars and commentators have long argued that issue linkages provide a way to increase cooperation on global public goods by increasing participation in global institutions, building consensus, and deterring free-riding. In this symposium article, I argue that the emphasis on the potential of issue linkages to facilitate cooperation in these ways has caused commentators to underestimate how common features of international legal institutions designed to accomplish these aims can actually undermine those institutions’ ability to facilitate cooperation. I focus on two features of institutional design that are intended to encourage participation in public goods institutions but can create the risk ...


Good For You, Bad For Us: The Financial Disincentive For Net Demand, Jim Rossi, Michael P. Vandenbergh Jan 2012

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

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine whether ...


Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl Jan 2012

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 ...


Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi Jan 2012

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

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine whether ...


Regulation In The Behavioral Era, Lisa Schultz Bressman, Michael P. Vandenbergh, Amanda R. Carrico Jan 2011

Regulation In The Behavioral Era, Lisa Schultz Bressman, Michael P. Vandenbergh, Amanda R. Carrico

Vanderbilt Law School Faculty Publications

Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for responses that depart from common sense and common wisdom, reflecting predictable cognitive anomalies. Furthermore, political officials have now called for behavioral economics to play an explicit role in White House review of agency regulations. This is a significant development for the regulatory process, yet our understanding of how behavioral insights should alter regulatory analysis is incomplete. To account ...


Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan Jan 2011

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 ...


Survey Mode Effects On Valuation Of Environmental Goods, W. Kip Viscusi, Jason Bell, Joel Huber Jan 2011

Survey Mode Effects On Valuation Of Environmental Goods, W. Kip Viscusi, Jason Bell, Joel Huber

Vanderbilt Law School Faculty Publications

This article evaluates the effect of the choice of survey recruitment mode on the value of water quality in lakes, rivers, and streams. Four different modes are compared: bringing respondents to one central location after phone recruitment, mall intercepts in two states, national phone-mail survey, and an Internet survey with a national, probability-based sample. The modes differ in terms of the representativeness of the samples, non-response rates, sample selection effects, and consistency of responses. The article also shows that the estimated benefit value can differ substantially depending on the survey mode. The national Internet panel has the most desirable properties ...


Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer Jan 2010

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Vanderbilt Law School Faculty Publications

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional implications. Before ...


Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen Jan 2010

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 ...


Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky Jan 2009

Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky

Vanderbilt Law School Faculty Publications

The decisions of the Michigan Supreme Court and the Michigan Court of Appeals during the Survey period, May 23, 2007 to July 30, 2008, did not dramatically change the course of environmental law in Michigan, nor did they contain any major surprises. The state Supreme Court's decision in Michigan Citizens for Water Conservation v. Nestl Waters North America, Inc. is the most significant decision in the Survey period because it held that plaintiffs in Michigan Environmental Protection Act (MEPA) cases must now satisfy federal standing requirements. Although the Nestl9 decision may make it more difficult for ordinary citizens to ...


Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster Jan 2009

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 levels ...


Climate Change: The China Problem, Michael P. Vandenbergh Jan 2008

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 ...


Climate Change: The Equity Problem, Michael P. Vandenbergh, Brooke A. Ackerly Jan 2008

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 ...


Individual Carbon Emissions: The Low-Hanging Fruit, Michael P. Vandenbergh, Jack Barkenbus, Jonathan Gilligan Jan 2008

Individual Carbon Emissions: The Low-Hanging Fruit, Michael P. Vandenbergh, Jack Barkenbus, Jonathan Gilligan

Vanderbilt Law School Faculty Publications

The individual and household sector generates roughly 30 to 40 percent of U.S. greenhouse gas emissions and is a potential source of prompt and large emissions reductions. Yet the assumption that only extensive government regulation will generate substantial reductions from the sector is a barrier to change, particularly in a political environment hostile to regulation. This Article demonstrates that prompt and large reductions can be achieved without relying predominantly on regulatory measures. The Article identifies seven "low-hanging fruit:" actions that have the potential to achieve large reductions at less than half the cost of the leading current federal legislation ...


Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh Jan 2007

Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Professors Bressman and Vandenbergh respond to the comments of Sally Katzen on their article presenting and analyzing results from an empirical study of the top political appointees at the Enviromental Protection Agency (EPA) during the William Clinton and George H.W. Bush administrations. In their previous article, Professors Bressman and Vandenbergh examined White House involvement in EPA rulemaking during the relevant periods, concluding that it may be a more complex and less positive phenomenon than previous studies have acknowledged. In this reply, the authors reinforce why the EPA is an important agency to study for information about White House involvement ...


The Carbon-Neutral Individual, Michael P. Vandenbergh, Anne C. Steinemann Jan 2007

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 ...


The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh Jan 2007

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

Vanderbilt Law School Faculty Publications

No abstract provided.


Allocating Responsibility For The Failure Of Global Warming Policies, Joni Hersch, W. Kip Viscusi Jan 2007

Allocating Responsibility For The Failure Of Global Warming Policies, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A recent series of climate change lawsuits has sought to mimic the "regulation through litigation" approach of the claims brought by the states against cigarette manufacturers. What is distinctive about the cigarette cases relative to conventional tort claims is that they were not brought on behalf of individual smokers, but rather sought to recoup the Medicaid-related costs of smoking. A parallel climate change litigation approach seeks payments from public utilities, energy producers, and other parties responsible for greenhouse gas emissions to reflect the long-term societal damages that the plaintiffs claim will be caused by this pollution. While environmental litigation of ...


The Private Life Of Public Law, Michael P. Vandenbergh Jan 2005

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 Jan 2005

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 ...