Law Commons^™

Neutralizing The Atmosphere, Shelley Welton

All Faculty Scholarship

“Net zero” has rapidly become the new organizing paradigm of climate change law. In the past few years, thousands of countries, companies, states, and cities have developed pledges that promise by a set date—typically around 2050—that any carbon they emit will be counterbalanced by capturing an equal amount of carbon out of the atmosphere. Collectively, these pledges now cover more than 91% of the global economy. This widespread adoption of scientifically aligned climate policy appears on its surface like a cause for celebration. However, concerns are mounting. To date, critiques of net zero have centered on what this Feature terms …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

All Faculty Scholarship

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

The Bounds Of Energy Law, Shelley Welton

All Faculty Scholarship

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

All Faculty Scholarship

This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement …

Deploying Machine Learning For A Sustainable Future, Cary Coglianese

All Faculty Scholarship

To meet the environmental challenges of a warming planet and an increasingly complex, high tech economy, government must become smarter about how it makes policies and deploys its limited resources. It specifically needs to build a robust capacity to analyze large volumes of environmental and economic data by using machine-learning algorithms to improve regulatory oversight, monitoring, and decision-making. Three challenges can be expected to drive the need for algorithmic environmental governance: more problems, less funding, and growing public demands. This paper explains why algorithmic governance will prove pivotal in meeting these challenges, but it also presents four likely obstacles that …

Decarbonization In Democracy, Shelley Welton

All Faculty Scholarship

Conventional wisdom holds that democracy is structurally ill-equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, “the people” cannot be trusted to craft adequate decarbonization policies, designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change policy has focused on technocratic fixes that operate predominantly through executive action to escape democratic politics — with vanishingly little to show for it after a change in presidential administration. To help craft a more durable U.S. climate change strategy, this Article scrutinizes the purported …

Environmental Refugees? Rethinking What’S In A Name, Elizabeth Keyes

All Faculty Scholarship

The phrase “environmental refugee” summons a compelling image of someone forced to relocate due to climate change. The phrase has been used effectively to raise awareness of such diverse problems as the rising sea levels that are submerging some Pacific islands, as well as the increased impact of natural disasters like hurricanes and earthquakes which cause a mixture of temporary and permanent migration. As climate change accelerates, and its human costs become ever clearer, it is completely appropriate and necessary to respond to these migrations, and a number of international initiatives are underway to do so.

As these initiatives go …

Grasping For Energy Democracy, Shelley Welton

All Faculty Scholarship

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

Electricity Markets And The Social Project Of Decarbonization, Shelley Welton

All Faculty Scholarship

Decarbonization is the process of converting our economy from one that runs predominantly on energy derived from fossil fuels to one that runs almost exclusively on clean, carbon-free energy. If pursued on the scale that experts believe necessary to prevent dangerous climate change, the infrastructure changes required to decarbonize the United States will have significant social and cultural implications. States aggressively pursuing decarbonization have adopted policies reflecting their understanding that decarbonization is a social project implicating numerous value choices. Various state decarbonization policies combine the aim of decarbonization with job promotion, economic development, income redistribution, urban revitalization, open-space preservation, and …

Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert Percival

All Faculty Scholarship

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states and their political subdivisions, return to the common law to protect the health of the planet. Prior to the emergence of the major federal environmental laws in the 1970s, the common law of nuisance gave rise to the earliest environmental decisions in U.S. history. In …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

All Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Clean Electrification, Shelley Welton

All Faculty Scholarship

To combat climate change, many leading states have adopted the aim of creating a “participatory” grid. In this new model, electricity is priced based on time of consumption and carbon content, and consumers are encouraged to adjust their behavior and adopt new technologies to maintain affordable electricity. Although a more participatory grid is an important component of lowering greenhouse gas emissions, it also raises a new problem of clean energy justice: utilities and consumer advocates claim that such policies unjustly benefit the rich at the expense of the poor, given the type of consumer best able to participate in the …

Public Energy, Shelley Welton

All Faculty Scholarship

Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state counterparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate …

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

All Faculty Scholarship

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

United States Flood Control Policy: The Incomplete Transition From The Illusion Of Total Protection To Risk Management, A. Dan Tarlock

All Faculty Scholarship

Until the mid-twentieth century, the story of modern flood control was the transition from adaptation to the inevitable to an expectation that government would provide maximum flood prevention and generous post-disaster relief for floodplain dwellers. For the last sixty years or so, the story has been the growing recognition, especially as the understanding of climate change has increased, that the goal of maximum protection is unobtainable because flood damage is an inevitable risk that can only be managed, but never totally avoided. Thus, we are now making the transition to the idea that we must manage floodplains through a combination …

Global Warming Advocacy Science: A Cross Examination, Jason S. Johnston

All Faculty Scholarship

Legal scholarship has come to accept as true the various pronouncements of the Intergovernmental Panel on Climate Change (IPCC) and other scientists who have been active in the movement for greenhouse gas (ghg) emission reductions to combat global warming. The only criticism that legal scholars have had of the story told by this group of activist scientists – what may be called the climate establishment – is that it is too conservative in not paying enough attention to possible catastrophic harm from potentially very high temperature increases. This paper departs from such faith in the climate establishment by comparing the …

Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston

All Faculty Scholarship

This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability that both cause significant inefficiencies and create inevitable tradeoffs between equity and efficiency. A standard result in the economic analysis of international GHG cap and trade schemes is that an allocation of initial permits that favors poor, developing countries (making such countries net sellers in equilibrium) may be necessary not only to further redistributive goals but also the efficiency of the GHG cap and trade scheme. This coincidence of equity and efficiency is, however, unlikely to be realized under more realistic assumptions …

From The States Up: Building A National Renewable Energy Policy, Shelley Welton

All Faculty Scholarship

In 2006, a U.S. Government Accountability Office (GAO) report concluded that “[r]educing the nation’s dependence on oil and carbon dioxide emissions in the next 25 years is not unlike the 1960s challenge to put a man on the moon.” In fact, this analogy may be understated. While the scope of the two challenges is similarly daunting, the consequences of failure are potentially much more serious in the case of the energy challenge. One key component of addressing this challenge will be changing the ways in which the U.S. meets its seemingly insatiable electricity demand. The environmental, foreign policy, health, and …