Law Commons^™

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 it-I read his …

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 …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and …

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 from one regulatory sphere …

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 …

Environmental Law At The Borders, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Pipelines to the north. Walls to the south. Between President Trump's issuance of a permit for the Keystone XL pipeline crossing from Canada and his promise to build "The Wall," the politics of our national borders rarely have been in as much turmoil as they are today. And as with any infrastructure project, environmental policy has been deeply in play all the way. But the environmental law of the borders might surprise you. Indeed, arguably there isn't any for these two projects.

The Role Of Law In Adaptive Governance, J.B. Ruhl, Barbara A. Cosens, Robin K. Craig, Shana L. Hirsch

Vanderbilt Law School Faculty Publications

The term “governance” encompasses both governmental and nongovernmental participation in collective choice and action. Law dictates the structure, boundaries, rules, and processes within which governmental action takes place, and in doing so becomes one of the focal points for analysis of barriers to adaptation as the effects of climate change are felt. Adaptive governance must therefore contemplate a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments of many democracies. Nevertheless, over time, law itself has proven highly adaptive in western systems of government, evolving to address and even facilitate the emergence …

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 …

The Production Function Of The Regulatory State, J.B. Ruhl, Jonathan R. Nash, James Salzman

Vanderbilt Law School Faculty Publications

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we …

Carbon Taxation By Regulation, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that, even though a carbon tax remains politically elusive, a carbon taxation by regulation has begun to flourish as a way of financing carbon reduction. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. While carbon taxation by regulation offers many benefits, regulators' narrow fixation on consumer protection and economic goals has hobbled realization of its potential. …

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 assets …

Transforming (Perceived) Rigidity In Environmental Law Through Adaptive Governance, J.B. Ruhl, Hannah Gosnell, Brian C. Chaffin, Craig A. Arnold

Vanderbilt Law School Faculty Publications

The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal hammer forcing federal agencies to consider endangered species needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated …

Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch

Vanderbilt Law School Faculty Publications

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

In Defense Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.

The Presidential Memorandum On Mitigation, J.B. Ruhl

Vanderbilt Law School Faculty Publications

On November 3, 2015, President Obama issued a Presidential Memorandum aimed at unifying the mitigation practice and policy for activities carried out and approved by the Departments of Defense, Interior, and Agriculture, the EPA, and the National Oceanic and Atmospheric Administration... See Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, 80 Fed. Reg. 68743 (Nov. 6, 2015). The broad policy goal of the Memorandum is to ensure that the agencies mitigation policies are clear, work similarly across agencies, and are implemented consistently within agencies. Id. at 68743. The Memorandum also emphasizes the need for transparency, measurable …

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 FPA, ESPA is …

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 has been target …

Environmental Law In Austerity, J.B. Ruhl, James Salzman, Jonathan Nash

Vanderbilt Law School Faculty Publications

Given the political dynamic in play at the national level, with the country evenly split between Republicans and Democrats, and incumbent Tea Party and other politicians highly critical of the EPA, there is no reason to think this trend in decreasing environmental budgets will change any time soon. In some states the trend is even more pronounced. Fiscal austerity has become the new norm. The interesting questions are whether this matters for environmental law, how it matters, and what it means going forward.

Beyond Gridlock, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock. Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response. Yet Microsoft, Google and many other companies have committed to become carbon neutral. Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

Vanderbilt Law School Faculty Publications

"Resource shuffling" occurs when different subnational approaches to carbon regulation create variations in the costs of production across jurisdictions. California is the most aggressive jurisdiction in the United States to address climate change and has adopted a cap & trade program for its greenhouse gas (GHG) emissions. This Article addresses the resource shuffling issue presented by California's cap-and-trade program and evaluates the merits of various legal and regulatory solutions to the problem.

Climate Change Meets The Law Of The Horse, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the …

Harmonizing Distributed Energy And The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a green pass under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA …

Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now …

Clean Energy And The Price Preemption Ceiling, Jim Rossi

Vanderbilt Law School Faculty Publications

Since the New Deal, federal preemption has precluded many state and local regulatory decisions that depart from wholesale electric prices determined under federal standards. Recent decisions treat prices that meet the federal standard as a preemption ceiling, which prohibits states from setting prices that exceed the wholesale price set in a competitive market. Both appellate courts and the Federal Energy Regulatory Commission - the primary federal agency responsible for the electric power sector - have recently applied a price preemption ceiling to clean energy policies. I argue in this Article that this price ceiling preemption approach hobbles the advancement of …

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell

Vanderbilt Law School Faculty Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is …

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 …

The Political Economy Of Climate Change Winners, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Many people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them as climate policy dialogue and legal scholarship consistently have" will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it has made them into climate change winners. Thus, whereas legal scholars …

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

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 …