Law Commons^™

From Comprehensive Liability To Climate Liability: The Case For A Climate Adaptation Resilience And Liability Act (Carla), Anthony Moffa

Faculty Publications

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) created a uniquely broad and powerful scheme of statutory liability for environmental cleanup of contaminated sites. CERCLA famously imposes strict, retroactive, joint and severable liability. One might wonder, especially through the lens of contemporary partisanship, how such a powerful, comprehensive liability scheme passed through Congress in 1980. In large part, CERCLA’s passage can be attributed to historical context that may appear wholly unique at first blush. Now, the world confronts another watershed of environmental history and past actors face a potential flood of liability. Much of the situation is different in …

Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules

Faculty Publications

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.

This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …

Climate Change Compliance, Susan S. Kuo, Benjamin Means

Faculty Publications

Unless corporations prioritize climate change mitigation, efforts to control global warming will fail. Yet, the strategies that have been proposed for enlisting corporations are insufficient to the task. In our era of political polarization, a comprehensive “Green New Deal” to transition the U.S. economy away from fossil fuels is a nonstarter. Nor can we expect corporate risk management or social responsibility to fill the gap; there are practical limits to how far corporate managers can depart from strategies designed to maximize profits for investors.

This Article contends that climate change is a compliance issue. Scholars have overlooked compliance as a …

Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa

Faculty Publications

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

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

Faculty Publications

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 …

Decarbonization In Democracy, Shelley Welton

Faculty Publications

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 …

The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson

Faculty Publications

The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most …

Cybersecurity Paradigm Shift, The Risk Of Net Neutrality Repeal To Energy Reliability, Public Safety, And Climate Change Solutions, Catherine J. K. Sandoval

Faculty Publications

This Article contends that the Federal Communications Commission’s (FCC) January 2018 repeal of net neutrality rules creates cybersecurity vulnerabilities for the energy sector and other critical infrastructure. Unbridled from enforceable net neutrality rules, Internet Service Providers (ISPs) create systemic supply chain risks as the Internet has become embedded into the energy sector’s distributed ecosystem. This Article argues that cybersecurity has been primarily viewed from a “hacker paradigm” that obscures systemic threats such as those posed by an ISP since firewalls and traditional cybersecurity techniques do not protect against ISP conduct. The Article contends that the FCC’s failure to consider the …

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Electricity Markets And The Social Project Of Decarbonization, Shelley Welton

Faculty Publications

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 under-standing 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 …

Public Energy, Shelley Welton

Faculty Publications

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 …

Clean Electrification, Shelley Welton

Faculty Publications

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 …

Taking The Oceanfront Lot, Josh Eagle

Faculty Publications

Oceanfront landowners and states share a property boundary located between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner …

Climate Change And The Confluence Of Natural And Human History: A Lawyer’S Perspective, Josh Eagle

Faculty Publications

No abstract provided.

The Biodiversity Paradigm Shift: Adapting The Endangered Species Act To Climate Change, Kalyani Robbins

Faculty Publications

The Endangered Species Act (ESA) was designed to protect species that had been rendered more vulnerable to extinction as a result of human activity. As such, its implementation has traditionally focused on keeping human beings away from such species and giving the species (and their ecosystems) space to heal on their own. Climate change is altering the landscape everywhere on the globe, rendering the hands-off approach no longer sufficient. Active interventions will become more necessary as we get further into the changing climate. Taking decisive action in response to climate change will also require a fundamental shift in our approach …

Traditional Ecological Rulemaking, Anthony Moffa

Faculty Publications

This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill …

In Deep: Dilemmas Of Federal Flood Insurance Reform, Jennifer Wriggins

Faculty Publications

Floods are the most expensive form of natural disaster in the United States. Recent massive floods in Louisiana show the magnitude of the devastation floods can cause. Climate change and population growth are likely to lead in the coming decades to more severe, frequent, and costly floods. How we pay for flood losses is an urgent public policy issue. The National Flood Insurance Program (NFIP) provides most of the flood insurance policies on homes in the United States. The U.S. Flood Insurance Program is a complex scheme that uses insurance coverage subsidies, mandates, and other tools to support various policies …

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This essay, written for the Environmental Law Symposium on 21st Century Water Law, presents an alternative view. Specifically, this essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case …

Health Inflation, Wealth Inflation, And The Discounting Of Human Life, Ben L. Trachtenberg

Faculty Publications

This article presents two new arguments against “discounting” future human lives during cost-benefit analysis, arguing that even absent ethical objections to the disparate treatment of present and future humanity, the economic calculations of cost-benefit analysis itself - if properly calculated - counsel against discounting lives at anything close to current rates. In other words, even if society sets aside all concerns with the discounting of future generations in principle, current discounting of future human lives cannot be justified even on the discounters’ own terms. First, because cost-benefit analysis has thus far ignored evidence of rising health care expenditures, it underestimates …

Encouraging Private Investment In Energy Efficiency, Sarah B. Schindler

Faculty Publications

Combating the negative effects of climate change requires finding ways to increase energy production while reducing energy demand. Every New England state has programs in place to encourage home and business owners to improve the energy efficiency of their buildings. Despite the clear fmancial benefits and environmental benefits that result from energy efficiency upgrades, most New Englanders have not taken advantage ofthe programs being offered by their states.

Heat Expands All Things: The Proliferation Of Greenhouse Gas Regulation Under The Obama Administration, Jonathan H. Adler

Faculty Publications

The Obama Administration has been moving aggressively to control greenhouse gas emissions under the Clean Air Act and other pre-existing statutory authority. Much of this new regulation was facilitated – if not mandated – by the Supreme Court’s decision in Massachusetts v. EPA. These regulatory initiatives mark a dramatic expansion of federal environmental controls on private economic activity. These efforts are unwise. Regulating greenhouse gases under the Clean Air Act, in particular, will impose substantial regulatory costs for minimal environmental gain. Extensive GHG regulation will not produce much actual climate change mitigation. Mitigating the threat of anthropogenic climate change requires …

International Greenhouse Gas Offsets Under The Clean Air Act, Nathan D. Richardson

Faculty Publications

Offsets, and in particular international offsets, have been advanced as an important tool in climate policy, capable of significantly reducing the costs of emissions reductions. As attention turns to the existing CAA as a potential vehicle for general reduction of GHG emissions, an important question is whether regulation under the statute is compatible with international offsets. Certain regulatory programs under the CAA are likely candidates for GHG regulation, but many of them are legally incompatible with international offsets. Those programs that might permit use of international offsets have other problems that make them unpopular choices for GHG regulation. To the …

Book Review - Climate Change: A Guide To Carbon Law And Practice, Rebekah K. Maxwell

Faculty Publications

No abstract provided.

Notes From A Climate Change Pressure-Cooker: Sub-Federal Attempts At Transformation Meet National Resistance In The Usa, Cinnamon P. Carlarne

Faculty Publications

No abstract provided.

Sepas, Climate Change, And Corporate Responsibility: The Contribution Of Local Government, Catherine J. Lacroix

Faculty Publications

Municipalities in the United States are increasingly active in the effort to reduce greenhouse gas emissions. Data suggest that the physical layout of communities and the buildings they contain make significant contributions to greenhouse gas emissions and thus to climate change. One useful tool for municipalities could be the Environmental Impact Statement (EIS), pioneered in the National Environmental Policy Act (NEPA) at the federal level and subsequently adopted as a policymaking guide in the State Environmental Policy Acts (SEPAs) of many states. A SEPA requires state governments - and, in six states, local governments as well - to consider the …

Water Marketing As An Adaptive Response To The Threat Of Climate Change, Jonathan H. Adler

Faculty Publications

Demographic changes and existing water use patterns have placed tremendous pressures upon water supplies, particularly in the West. Global climate change will exacerbate pressures on water resources. The gradual warming of the atmosphere is certain to change the distribution and availability of water supplies, with potentially severe consequences for freshwater supplies. While climate change will have a significant impact on water resources through changes in the timing and volume of precipitation, altered evaporation rates, and the like, the precise nature, magnitude, timing, and distribution of such climate-induced changes are unknown. This uncertainty complicates the task of water managers who are …

Massachusetts V. Epa Heats Up Climate Policy No Less Than Administrative Law: A Comment On Professors Watts And Wildermuth, Jonathan H. Adler

Faculty Publications

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation …

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to …