Law Commons^™

Disadvantaged Unincorporated Communities And The Struggle For Water Justice In California, Jonathan K. London, Amanda L. Fencl, Sara Watterson, Yasmina Choueiri, Phoebe Seaton, Jennifer Jarin, Mia Dawson, Alfonso Aranda, Aaron King, Peter Nguyen, Camille Pannu, Laurel Firestone, Colin Bailey

Faculty Scholarship

This article maps a meshwork of formal and informal elements of places called Disadvantaged Unincorporated Communities (DUCs) to understand the role of informality in producing unjust access to safe drinking water in California’s San Joaquin Valley. It examines the spatial, racial, and class-based dimensions of informality. The paper aims to both enrich the literature on informality studies and use the concept of informality to expand research on DUCs and water access. We use socio-spatial analyses of the relationships between informality and water justice to reach the following conclusions: DUCs face severe problems in access to safe drinking water; disparities in …

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …

Efficient Ethical Principles For Making Fatal Choices, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations--that dealing with mortality risks. This procedure consequently bases …

A Response To Calls For Sec Mandated Esg Disclosure, Amanda M. Rose

Vanderbilt Law School Faculty Publications

This Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important--and controversial-- policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contested in the field of corporate and securities law, such as the value of interjurisdictional competition for corporate charters, the right way to conceptualize the purpose of the corporation, the proper allocation of managerial power as between the board and shareholders, …

Connecting Ecosystem Services Science And Policy In The Field, J. B. Ruhl, James Salzman, Craig A. Arnold, Robin Craig, Keith Hirokawa, Lydia Olander, Margaret Palmer, Taylor H. Ricketts

Vanderbilt Law School Faculty Publications

Conservation and provision of ecosystem services (ES) have been adopted as high-level policy in many countries, yet there has been surprisingly little application of these broad policies in the field; for example, ES are rarely considered in permit issuance or other discrete agency actions. This large implementation gap arises in part because the science that drove general policy interest in ES differs from the science needed for practical application. A better understanding of the environmental policy toolkit can guide more effective research to support agency decisions. Here, we outline the framework used to teach environmental policy instruments through the “Five …

4°C, J. B. Ruhl, Robin K. Craig

Vanderbilt Law School Faculty Publications

In March 2020, while the world's attention was focused on the coronavirus pandemic, an international team of eighty-nine polar scientists from fifty organizations reported that Greenland and Antarctica are losing ice six times faster than they were in the 1990s. Based on satellite data, the research team concluded that "if the current melting trend continues, the regions will be on track to match the 'worst-case' scenario of the Intergovernmental Panel on Climate Change (IPCC) of an extra 6.7 inches (17 centimeters) of sea-level rise by 2100." One month later, in Siberia, "the small town of Verkhoyansk (67.5°N latitude) reached 100.4 …

Canada And Transboundary Fisheries Management In Changing Oceans: Taking Stock, Future Scenarios, U.R. Sumaila, David Vanderzwaag

Articles, Book Chapters, & Popular Press

This article is the Introduction to the Special Feature entitled: Canada and Transboundary Fisheries Management in Changing Oceans: Taking Stock, Future Scenarios. We summarize the research context of the four papers in the Special Feature.

Legal Pathways To Biden's Climate Goals, Michael B. Gerrard

Faculty Scholarship

Achieving President Biden’s goal of net-zero green­house gas emissions by 2050, with interim targets of being halfway there by 2030 and having entirely clean electric­ity by 2035, is possible with law and technologies that already exist or can be readily imagined. In the process, many more jobs would be created than lost, and aspects of the environment beyond climate change would be greatly improved. But it is a massive undertaking.

Intersections Of Environmental Justice And Sustainable Development: Framing The Issues, Sumudu A. Atapattu, Carmen G. Gonzalez, Sara L. Seck

Articles, Book Chapters, & Popular Press

This chapter proceeds as follows. Section 1.2 describes the evolution of the concept of sustainable development from the 1987 report of the World Commission on Environment and Development (WCED) to the Sustainable Development Goals (SDGs). It discusses contem- porary degrowth and green growth movements, before introducing the relatively novel concept of just sustainabilities, a synthesis of environmental justice and sustainable development. Section 1.3 de!nes environmental justice and discusses its relationship to human rights and the social pillar of sustainable development, reflecting on which dimensions of environmental justice are well reflected in this book and which proved more dif!cult to address. …

Integrating Climate Change Into Environmental Impact Assessments: Key Design Elements, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper explores the integration of climate mitigation into the environmental impact assessment processes. The focus here is on the much neglected mitigation element (which is defined to include GHG emissions as well as impacts on natural sinks such as forests, soils, grasslands and oceans). To this end, the paper considers how to integrate the GHG emission and sinks impacts of projects at five critical stages of the assessment process: triggering, information gathering, analysis, the project decision, and post-approval follow-up.

Regulating Wave, Tidal And Ocean Thermal Energy, Meinhard Doelle, Theodore Nsoe Adimazoya

Articles, Book Chapters, & Popular Press

Ocean renewable energy sources hold the potential to contribute to the options of low-carbon energy sources and enhance the efforts by the global community to slow down climate change. In this Chapter, we provide a brief background on the current state of technology and development of wave, tidal and ocean thermal energy and consider their potential as forms of renewable energy as well as the potential negative environmental footprints of ocean renewable energy installation and development. Secondly, we examine the relevant international legal and policy framework governing ocean energy, highlighting in particular, the absence of a global legal instrument that …

Beyond The Cooperation-Conflict Conundrum: Proceedings Of An Arctic Security Webinar Series, Aldo Chircop

Articles, Book Chapters, & Popular Press

The origins of the conference, for which this volume is the published record, go back to the fall of 2019 and the Canadian Pugwash Group’s (CPG’s) annual general meeting. Having just held a major policy conference at the University of Ottawa on “Speeding Towards the Abyss: Contemporary Arms Racing and Global Security,” the CPG was considering what should be the subject of its next policy conference. Arctic security, in all its dimensions, quickly was identified as the theme to pursue. Planning got underway with a view to holding the event in the fall of 2020 and finding suitable partners.

The …

Governing Complexity: Integrating Science, Governance, And Law To Manage Accelerating Change In The Globalized Commons, Barbara Cosens

Articles

The speed and uncertainty of environmental change in the Anthropocene challenge the capacity of coevolving social–ecological–technological systems (SETs) to adapt or transform to these changes. Formal government and legal structures further constrain the adaptive capacity of our SETs. However, new, self-organized forms of adaptive governance are emerging at multiple scales in natural resource-based SETs. Adaptive governance involves the private and public sectors as well as formal and informal institutions, self-organized to fill governance gaps in the traditional roles of states. While new governance forms are emerging, they are not yet doing so rapidly enough to match the pace of environmental …

Climate Change Class Actions In Canada, Jasminka Kalajdzic

Law Publications

Climate justice activists are increasingly looking to litigation to produce the policy changes that have eluded them in the political process. Without a codified right to a clean environment, litigants in jurisdictions like Canada must use a human rights framework to advance their cause. Recent successes in Charter class actions suggest that it is now possible to pursue constitutional damages for climate change harms. As Canadian advocates join with their international counterparts in deploying a litigation strategy, Canada's robust class action procedure may be a useful addition in the pursuit of collective climate justice. This article proceeds in four parts. …

Flooding Their Mailbox: Recommendations For Notifying Residents Of Changes To Fema Flood Maps, Andrew Major, Alston Underwood

Virginia Coastal Policy Center

No abstract provided.

Prep Tool - Planning For Resilience: Evaluation And Prioritization, Virginia Coastal Policy Center, William & Mary Law School, Institute For Engagement & Negotiation, University Of Virginia

Virginia Coastal Policy Center

The PREP Tool is a three-step process to support local governments in establishing a set of resilience priorities informed by level of risk, resilience efforts to date, and best practices in resilience planning. The tool provides a starting point for local governments who have not yet evaluated their vulnerabilities, assessed impacts, identified resilience-building actions, or developed resilience plans to guide future resilience efforts.

Contracts On The Seabed, Christiana Ochoa

Articles by Maurer Faculty

Four million square kilometers of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometers of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters of Papua …

Bursting The Auto Loan Bubble In The Wake Of Covid-19, Pamela Foohey

Articles by Maurer Faculty

Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such …

Nature's Rights, Christiana Ochoa

Articles by Maurer Faculty

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, …

Esg And Climate Change Blind Spots: Turning The Corner On Sec Disclosure, Cynthia A. Williams, Donna M. Nagy

Articles by Maurer Faculty

This article examines four areas in which the SEC, for more than a decade, resisted reform or impeded shareholders’ access to sought-after environmental, social, and governance (ESG) information. These areas are: (1) the SEC’s refusal to act on several rulemaking petitions submitted during the years 2009 to 2018, which called for expanded ESG disclosure; (2) the SEC’s grudging promulgation of rules concerning social disclosures as required by Congress in the Dodd-Frank Act of 2010; (3) the SEC’s 2020 revisions to SEC Rule 14a-8, which make the submission of shareholder proposals more difficult, thereby thwarting investor efforts to raise ESG concerns; …

Second Panel Discussion - Symposium: Who Makes Esg? Understanding Stakeholders In The Esg Debate, David H. Webber, Carmen Lu, Lisa Fairfox

Faculty Scholarship

This symposium was hosted virtually by Fordham University School of Law on October 23, 2020. The transcript has been edited for clarity and to provide sources, references, and explanatory materials for certain statements made by the speakers.

The second panel discussion was on the topic of "Stakeholders as the driving force of ESG." Panelists for the second panel were Carmen Lu, Lisa Fairfax, and David Webber.

Opposition To Renewable Energy Facilities In The United States, Hillary Aidun, Radhika Goyal, Kate Marsh, Neely Mckee, Maris Welch

Sabin Center for Climate Change Law

More than 100 ordinances have been adopted in 31 states blocking or restricting new wind, solar, and other renewable energy facilities, and more than 160 of these projects have been contested in 48 states. Columbia Law School’s Sabin Center for Climate Change Law issued a report documenting these instances of local opposition to renewables.

Global Southerners In The North, Ama Francis

Sabin Center for Climate Change Law

Third World Approaches to International Law (TWAIL) scholarship contends that international law privileges nation-states in the Global North over those in the Global South. The literature primarily draws on a Westphalian conception of the North-South divide in analyzing asymmetrical issues of power in the global political economy. Given the expansion of global capitalism, however, the nation-state-based mode of analysis misses the fact that there are Global Souths in the geographic North and Global Norths in the geographic South. This Essay makes two theoretical claims.

First, it argues that racial capitalism renders expendable populations across the geographic North and South, destabilizing …

Taking From States: Sovereign Immunity's Preclusive Effect On Private Takings Of State Land, Jennifer Danis, Michael Bloom

Sabin Center for Climate Change Law

The core of a state is its physical presence and dominion over its land. States are now battling to maintain their dignity as sovereigns, while traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, threaten state sovereignty by attempting to take state property without consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and …

Agency Genesis And The Energy Transition, Sharon B. Jacobs

Publications

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating …

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan, David Takacs

Publications

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Ddt, “Ecologists,” Regulations, And Renewable Energy, Adam D. Orford

Scholarly Works

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining …

Environmental Law, Travis M. Trimble

Scholarly Works

In 2020,1 the United States Court of Appeals for the Eleventh Circuit held that a provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)2 that tolled statutes of limitation in state law claims did not apply to a claim brought under the Price-Anderson Act (PAA),3 providing an exclusive federal cause of action for harm resulting from exposure to radioactive materials, even though the PAA "borrows" all substantive law governing liability, including a relevant statute of limitation, from the law of the state where the harm occurred. 4 The United States District Court for the Northern District of Georgia …

Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey

All Faculty Publications

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, …