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Articles 1 - 17 of 17
Full-Text Articles in Environmental Law
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Faculty Scholarship
The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …
Can Clean Energy Policy Promote Environmental, Economic, And Social Sustainability?, Felix Mormann
Can Clean Energy Policy Promote Environmental, Economic, And Social Sustainability?, Felix Mormann
Faculty Scholarship
Two and a half decades of clean energy policymaking focused primarily on environmental and economic sustainability have yielded considerable environmental and economic benefits. Along the way, however, other policy considerations, such as the social sustainability of the transition to a cleaner, renewably fueled energy economy, have gone largely overlooked. As clean energy technologies continue to gain ever-greater traction in the United States and global energy economies, the social impacts of their enabling policies become more and more salient. Already, ratepayers, taxpayers, and other stakeholders who fear being left behind by the clean energy transition question the “fairness” of today’s renewable …
Regulating What Can't Be Measured: Reviewing The Current State Of Animal Agriculture's Air Emissions Regulation Post-Waterkeeper Alliance V. Epa, Kyle Weldon
Student Scholarship
While the Omnibus Bill may now provide CAFOs with a shield from reporting requirements, this article reviews the history behind production agriculture’s air emissions regulation challenges and why this issue still matters moving forward. Part I provides an overview of today’s modern animal agricultural industry, looking at how CAFOs have grown in size in recent years and the potential air pollution issues that stem from that growth. Part II analyzes the current state of federal air emissions regulations impacting CAFOs, focusing on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). …
Non-Enforcement Takings, Timothy M. Mulvaney
Non-Enforcement Takings, Timothy M. Mulvaney
Faculty Scholarship
The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …
The Social Cost Of Carbon, Greenhouse Gas Policies, And Politicized Benefit/Cost Analysis, Benjamin Zycher
The Social Cost Of Carbon, Greenhouse Gas Policies, And Politicized Benefit/Cost Analysis, Benjamin Zycher
Texas A&M Law Review
Benefit/cost analysis can be a powerful tool for examination of proposed (or alternative) public policies, but, unsurprisingly, decisionmakers’ policy preferences can drive the analysis, rather than the reverse. That is the reality with respect to the Obama Administration computation of the social cost of carbon, a crucial parameter underlying the quantitative analysis of its proposed climate policies, now being reversed in substantial part by the Trump Administration. The Obama analysis of the social cost of carbon suffered from four central problems: the use of global benefits in the benefit/cost calculation, the failure to apply a 7% discount rate as required …
Regulatory Fracture Plugging: Managing Risks To Water From Shale Development, Caroline Cecot
Regulatory Fracture Plugging: Managing Risks To Water From Shale Development, Caroline Cecot
Texas A&M Law Review
Debates about the desirability of widespread shale development have highlighted outstanding uncertainty about its health, safety, and environmental impacts—most prominently, its water-contamination risks—and the ability of current institutions to deal with these impacts. States, the primary regulators of oil and gas extraction, face pressure from the energy industry, local communities, and, in some cases, the federal government to strike the right balance between energy production and the health and safety of individuals and the environment—an elusive balance given the ongoing risk uncertainty. This dynamic is not especially unique to fracking, or even oil and gas extraction; instead, this dynamic, characterized …
Drought And Public Necessity: Can A Common-Law "Stick" Increase Flexibility In Western Water Law?, Robin Kundis Craig
Drought And Public Necessity: Can A Common-Law "Stick" Increase Flexibility In Western Water Law?, Robin Kundis Craig
Texas A&M Law Review
Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to reallocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival. In addition, pure market solutions run the risk that “survival water” will become too expensive …
Collaborative Management As A Mechanism For Incentivizing Private Landowners And Protecting Endangered Species, Ashley Graves
Collaborative Management As A Mechanism For Incentivizing Private Landowners And Protecting Endangered Species, Ashley Graves
Texas A&M Law Review
Currently, the Endangered Species Act is falling short of its potential. Even though the Endangered Species Act has provided protection for endangered and threatened species and helped some species to recover and even thrive, the fact that most listed species’ habitat is on private land remains a hurdle that has not yet been overcome. In fact, the stringent requirements imposed upon private landowners often put endangered and threatened species at risk as some private landowners will use any means possible to stop the government from finding endangered or threatened species on their land. Because of this, the United States Fish …
The Many Sins Of Nepa, Richard A. Epstein
Carrots And Sticks In Private Climate Governance, Jonathan Gilligan
Carrots And Sticks In Private Climate Governance, Jonathan Gilligan
Texas A&M Law Review
When public governance fails to address important environmental threats— such as climate change—private governance by firms, not-for-profits, individuals, and households can produce significant reductions in greenhouse gas emissions. Private governance can take the form of either a carrot or a stick, using incentives or punishments. Shareholder activism as a form of private governance of corporations has largely been confrontational, leading most climate-related actions to fail. This Article examines the potential for private governance to take a more collaborative approach and to frame shareholder engagement with management in terms of opportunity. It also examines private governance successes at reducing household emissions …
Agency Coordination Of Private Action: The Role Of Relational Contracting, Karen Maire Bradshaw Schulz
Agency Coordination Of Private Action: The Role Of Relational Contracting, Karen Maire Bradshaw Schulz
Texas A&M Law Review
This Article explores the previously overlooked role of relational contracting in forming and maintaining public-private partnerships. Relational contracting generally describes firms using formal but legally non-binding agreements to collaborate on shared objectives. Why do parties invest in forming elaborate contracts that they do not—and cannot—enforce in court? Contract theory suggests that the very act of contracting is relationship-building; it generates commitment, trust, cooperation, a win-win philosophy, and strengthened communication. Writing down goals and intentions allows parties to clarify expectations while maintaining flexibility for unforeseen conditions. This Article demonstrates that agencies also use relational contracting— creating unenforceable written agreements to build …
The Comparative Institutions Approach To Wildlife Governance, Dean Lueck
The Comparative Institutions Approach To Wildlife Governance, Dean Lueck
Texas A&M Law Review
This Article develops a comparative institutions approach to wildlife governance by examining the property rights to the habitat and the stocks of wild populations. The approach is based on the transaction cost and property rights approach and lies primarily in the traditions of Coase, Barzel, Ostrom, and Williamson. The approach recognizes the often-extreme costs of delineation and enforcement of property rights to wild populations and their habitats; thus, all systems are notably imperfect compared to the typical neoclassical economics approach. These costs arise because wildlife habitat and wildlife populations are part of the land which has many attributes and uses—most …
Regulatory Carrots And Sticks In Climate Policy: Some Political Economic Observations, Jason S. Johnston
Regulatory Carrots And Sticks In Climate Policy: Some Political Economic Observations, Jason S. Johnston
Texas A&M Law Review
This Article sets out an informal political economic theory which explains the relative permanence of regulatory carrots—legislative subsidies and mandates for product use—versus the transience of regulatory sticks—traditional costly regulatory requirements. After setting out the elements of this theory, I illustrate it with the dramatic rise in the Obama Administration and abrupt cessation in the Trump Administration of attempts to use conventional U.S. environmental regulatory sticks to end the U.S. coal industry. The Article turns then to describe a concrete example of a regulatory carrot—the U.S. corn ethanol mandate—that has survived despite overwhelming evidence that its environmental benefits, if any, …
Payments For Ecosystem Services: Past, Present And Future, James Salzman, Genevieve Bennett, Nathaniel Carroll, Allie Goldstein, Michael Jenkins
Payments For Ecosystem Services: Past, Present And Future, James Salzman, Genevieve Bennett, Nathaniel Carroll, Allie Goldstein, Michael Jenkins
Texas A&M Law Review
While we don’t tend to think about it, healthy ecosystems provide a variety of critical benefits. Ecosystem goods, the physical items an ecosystem provides, are obvious. Forests provide timber; coastal marshes provide shellfish. While less visible and generally taken for granted, the services underpinning these goods are equally important. Created by the interactions of living organisms with their environment, ecosystem services provide the conditions and processes that sustain human life.1 If you doubt this, consider how to grow an apple without pollination, pest control, or soil fertility. Once one realizes the importance of ecosystem services, three points quickly emerge: (1) …
Unilateral Steps To End High Seas Fishing, Katrina M. Wyman
Unilateral Steps To End High Seas Fishing, Katrina M. Wyman
Texas A&M Law Review
In discussions about the overexploitation of the vast oceans that lie beyond national jurisdiction, one bold proposal is to close fishing entirely on the high seas. Existing research suggests that converting the high seas into a giant reserve for fish might increase overall global fish catches by boosting fish catches within the adjoining areas of the oceans under national control. This conversion also might help to protect marine biological diversity, which is particularly important in an era of climate change. This Essay identifies the potential that the United States—a significant importer of high seas fish—might unilaterally take steps to end …
Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo
Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo
Faculty Scholarship
As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …
Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo
Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo
Faculty Scholarship
Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and more …