Law Commons^™

Transportation In A Changing Climate: Innovating To Create Resilient, Low-Carbon Systems, Vicki Arroyo, Annie Bennett

Georgetown Law Faculty Publications and Other Works

The climate is changing rapidly, bringing new temperature highs and weather extremes and affecting every individual, community, and sector of society—including transportation. Although, at times, climate change may feel like an insurmountable challenge, humanity is resilient and innovative. Transportation ultimately is about people: connecting people to places, to goods and services, and to each other. Because of its central role in the functioning of society, the transportation system—including its infrastructure, networks, and workforce—is an essential part of addressing and responding to climate change.

This article discusses challenges and opportunities for building resilient and low-carbon transportation solutions in the United States.

Issuance Of The Keystone Xl Permit: Presidential Prerogative Or Presidential “Chutzpah”, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article uses President Trump's issuance of the Keystone XL Pipeline permit to illustrate the dangers of an imperial presidency, one in which the exercise of discretionary authority, based on neither the text of Article II of the Constitution nor a statute, will in all likelihood be unchecked by Congress, the courts, or popular opinion. To understand the dimensions of this concern, Part I of this article briefly describes the process and requirements for a presidential permit. Part II identifies key facts surrounding issuance of the Keystone XL Pipeline permit, the chronology of its issuance, and commonly given reasons supporting …

Accelerating Deep Decarbonization In The U.S. Transportation Sector, Daniel Sperling, Lewis Fulton, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

The transportation sector includes light-duty vehicles, heavy-duty vehicles (trucks), off-road vehicles, buses, rail, shipping, and aviation. Reducing emissions in this sector is critical in order to achieve the pathways to zero carbon. Transportation emissions accounted for 37 percent of total CO₂ emissions from energy and industry in 2019. The principal strategy for decarbonizing transportation is electrification (including battery, plug-in hybrid, and hydrogen fuel cells) of all light-duty vehicles, urban-based trucks and buses, rail, much of long-haul trucking, and some short-haul shipping and aviation. For long-haul aviation and long-haul ocean shipping, advanced low-carbon biofuels and synthetic liquids or gases produced with …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …

Critical Issues In Transportation 2019: Climate Change Resilience, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

The climate is rapidly changing, bringing more frequent and extreme floods, droughts, and heatwaves, along with stronger hurricanes and more intense wildfires. Each year brings new record-breaking weather extremes; in the first six months of 2019, for example, a record number of U.S. counties flooded. July 2019 was the hottest month ever recorded for the world as a whole (1). Climate change is also melting glaciers, reducing the amount of sea ice, and raising sea levels, bringing devastation to coastal areas. From Louisiana to Alaska, many coastal communities are forced to make difficult decisions about whether to relocate …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

The Federal Government Has An Implied Moral Constitutional Duty To Protect Individuals From Harm Due To Climate Change: Throwing Spaghetti Against The Wall To See What Sticks, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The continuing failure of the federal government to respond to the growing threat of climate change, despite affirmative duties to do so, creates a governance vacuum that the Constitution might help fill, if such a responsibility could be found within the document. This Article explores textual and non-textual constitutional support for that responsibility, finding that no single provision of the Constitution is a perfect fit for that responsibility. However, the document as a whole might support constitutionalizing an environmental protection norm as an individual right or affirmative government obligation given the norm's importance to the enjoyment of other constitutional rights …

From Paris To Pittsburgh: U.S. State And Local Leadership In An Era Of Trump, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

States and cities have long been leaders on clean energy and climate policy. Their work has informed development of federal policies including motor vehicle standards and the Clean Power Plan. With the election of President Trump and the increasingly severe impacts of climate change, subnational leadership has become even more important and urgent. In response, many states and cities have pledged to enact new policies to mitigate the effects of climate change and help communities adapt. This Article focuses on recent developments in subnational leadership on both climate mitigation and adaptation to demonstrate the breadth and depth of engagement by …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …

Coloring Outside The Lines: A Response To Professor Seamon’S Dismantling Monuments, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

In Dismantling Monuments, Professor Richard H. Seamon defends President Donald Trump’s recent proclamations modifying the boundaries of two national monuments, Grand Staircase-Escalante and Bears Ears, that Presidents Clinton and Obama each designated at the ends of their Administrations. Professor Seamon is not alone in making these arguments, as I am not alone in saying that Professor Seamon’s arguments, while well-intentioned, are wrong. He exaggerates the persuasive power of congressional silence. He elevates the importance of the statute’s original intent. Professor Seamon and I read the text and legislative history of the Antiquities Act differently—he sees unlimited presidential power, I …

Federalism Hedging, Entrenchment, And The Climate Challenge, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national …

Illegal Marijuana Cultivation On Public Lands: Our Federalism On A Very Bad Trip, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses …

Brief Of Amici Curiae Dinah Bear, Robert Glicksman, Oliver Houck, Daniel Mandelker, Thomas Mcgarity, Robert Percival, Zygmunt Plater, Nicholas Robinson, And Gary Widman In Support Of Respondents, Monsanto Co. V. Geertson Seed Farms, No. 09-475 (U.S. Apr. 5, 2010), Hope M. Babcock

U.S. Supreme Court Briefs

No abstract provided.

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

Knowing Killing And Environmental Law, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

My goal here is modest: I simply wish to defend the view that the moral commitment against knowing killing should play a role in decisions about environmental problems. In recent years, economic analysis has substantially succeeded in de-ethicizing environmental issues; this paper is part of an effort to re-ethicize them. In previous work, I have criticized the use of cost-benefit analysis in making decisions about the environment. One source of my criticism has been the mismatch between moral values and economic valuation. I have, however, tended to leave the moral values I have defended rather vaguely defined. In this paper, …

Nepa: Lessons Learned And Next Steps: Hearing Before The Task Force On Updating The National Environmental Policy Act Of The H. Comm. On Resources, 109th Cong., Nov. 17, 2005 (Statement Of Professor Robert G. Dreher, Geo. U. L. Center), Robert G. Dreher

Testimony Before Congress

No abstract provided.

Judging Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The title of this Essay, "Judging Environmental Law," evokes several different themes. On the one hand, the title presents an occasion to discuss the role of judges in environmental law. On the other hand, it offers an opportunity to judge environmental law itself: whether environmental law is guilty, as charged by some in industry, of overreaching in its regulatory requirements; or, whether environmental law is instead guilty, as charged by some environmentalists, of underreaching, by failing to address pressing pollution control and natural resource management concerns. Finally, the title of the Essay possibly presents an occasion for a more theoretical …

Minnesota Wild, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In these remarks I am going to tell two stories and then add - to the growing list compiled so far in this Symposium - two new quasi-religious, metaphorical figures. In keeping with our overall theme of eco-pragmatism, my remarks will be experimental, contingent, even nonlinear. I hope you will indulge me.

A Different Kind Of "Republican Moment" In Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this Essay is to propose and discuss the possibility that the nation currently faces another, albeit very different, "republican moment" that may well test the future of environmental protection laws in the United States. This new "moment" has as its modifier an uppercase "Republican" rather than a lowercase "republican." While the latter "republican" invokes the political tradition referred to as "civic republicanism," the former "Republican" refers instead to the current National Republican Party. The "moment" facing environmental law is the virtually unprecedented ascendancy of the Republican Party in all three branches of the federal government.

The Humbugs Of The Anti-Regulatory Movement, Lisa Heinzerling, Frank Ackerman

Georgetown Law Faculty Publications and Other Works

It is so hard to get beyond cynicism these days. Even a symposium devoted to this goal has, as reflected in the articles by Professors Cynthia Farina, Jeffrey Rachlinski, and Mark Seidenfeld, succeeded primarily in suggesting that regulators are not so much selfish as they are obtuse, stubborn, and sometimes downright dumb. Undoubtedly this is true some of the time. But Farina, Rachlinski, and Seidenfeld want to convince us that it is true enough of the time to warrant quite large-scale solutions. In this Comment, we take issue with this pessimistic assessment of regulatory behavior by discrediting the most prominent …

The Greening Of America And The Graying Of United States Environmental Law: Reflections On Environmental Law’S First Three Decades In The United States, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this article is to begin to place the developments of the past few decades in historical perspective. To that end, the article is divided into three parts, roughly corresponding to the final three decades of the past century. The first part of the article describes the origins of U.S. environmental law, focusing primarily on its first decade from 1970 through 1980. The second part examines how U.S. environmental laws have since evolved, focusing primarily on their second decade (the 1980s), which was a period of tremendous expansion for environmental law. Finally, the third part considers future trends …

Thirty Years Of Environmental Protection Law In The Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Lectures and Appearances

It is an honor to present a lecture named after Lloyd Garrison and to be here at Pace Law School. It is especially fitting, of course, that the first Garrison Lecture was presented by Pace's own David Sive. Professor Sive, as we all know, worked closely with Garrison on the celebrated Scenic Hudson litigation. Few legal counsel have been so closely identified with the emergence of the environmental law profession during the past three decades. Indeed, if there were such a thing as a legal thesaurus that linked substantive areas of law with lawyers and one looked up "environ-mental law," …

A Greener Shade Of Crimson: Law And The Environment Alumni Forum, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

With the few minutes that I have, I want to respond to or elaborate on some of what was said and speak more directly about the development of the Environmental Law Program. Then I cannot resist commenting on some things which have not been said, but should be . . . In developing a program, one does not need to have gobs and gobs of environmental law courses. You need a core set of courses. You need a minimum of four courses - a minimum - taught by permanent faculty. You need an environmental law survey class. You need a …

Restoring What’S Environmental About Environmental Law In The Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades. The Article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices. Lazarus's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law. The Justices …

“Environmental Racism! That’S What It Is.”, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In this essay, Professor Lazarus discusses former NAACP director the Rev. Dr. Benjamin Chavis's characterization of U.S. environmental policy as "environmental racism." He first justifies this provocative topic choice and then suggests that Chavis's allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essentially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis's environmental racism comment. Finally, the conclusion provides some of the author's ruminations about the future of environmental law and policy.

The Tragedy Of Distrust In The Implementation Of Federal Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The need to reduce dramatically the strain we place on the natural environment is simultaneously immediate and long-term. Our domestic laws reflect that understanding and express a symbolic commitment to that goal. Those laws have achieved, moreover, significant improvement in discrete areas and, in some others, have managed to resist further environmental degradation in the face of a growing economy. For that reason, they warrant great praise. The past twenty years nevertheless reveal that those same laws decline to undertake the concomitant modification of our governmental institutions, and the way we think about them, which is necessary for a fuller …