Law Commons^™

Voter Psychology And The Carbon Tax, Gary M. Lucas Jr

Gary M. Lucas Jr.

Economists across the political spectrum argue that a carbon tax is the most effective and economically efficient policy for addressing climate change. Voters, however, strongly oppose the carbon tax and instead favor “green” subsidies and command-and-control regulations. If carefully designed, these policies might complement a carbon tax, but by themselves, they will make global warming mitigation incredibly expensive and perhaps even infeasible. Moreover, if poorly designed, subsidies and regulations can be counterproductive.

This Article argues that the public dislikes the carbon tax because the tax possesses attributes that make it psychologically unappealing relative to other climate policy instruments. The Article …

Why The Unfccc And Cbd Should Refrain From Regulating Solar Climate Engineering

Jesse Reynolds

The Future Of Environmental Law And Complexities Of Scale: Federalism Experiments With Climate Change Under The Clean Air Act, Hari M. Osofsky

Hari Osofsky

Since its inception, the Clean Air Act ("CAA") has served as an experiment in environmental governance models. As importantly, the CAA has had to be flexible in responding to our evolving understandings of environmental problems. Whether through amendments or new regulatory regimes under existing provisions, the statute has served as a key mechanism in the U.S. federal government's efforts to respond to complex environmental challenges. This Article focuses on the CAA's efforts to grapple with complexities of regulatory scale as an illustration of the new directions in environmental law that are the focus of this symposium. Air moves around over …

The Geography Of Climate Change Litigation: Implications For Transnational Regulatory Governance, Hari M. Osofsky

Hari Osofsky

This Article aims to forward the dialogue about transnational regulatory governance through a law and geography analysis of climate change litigation. Part II begins by considering fundamental barriers to responsible transnational energy production. Part III proposes a place-based approach to dissecting climate change litigation and a model for understanding its spatial implications. Parts IV through VI map representative examples of climate change litigation in subnational, national, and supranational fora. The Article concludes by exploring the normative implications of this descriptive geography; it engages the intersection of international law, international relations, and geography as a jumping-off point for a companion article.

California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta

Erwin Chemerinsky

While the United States has of yet not passed meaningful legislation that addresses climate change, several U.S. states are taking steps to reduce the carbon footprints of their industries and citizens. As it has in the past, California is leading the way. But are its actions legal?

Behavioral Public Choice And The Carbon Tax, Gary M. Lucas Jr

Gary M. Lucas Jr.

In response to the historic Paris Agreement on climate change and to the Environmental Protection Agency’s recently finalized Clean Power Plan, economists and other climate policy experts have renewed the call for the United States to adopt a carbon tax. Opposition among the public presents a major obstacle. While a majority of the public supports government action on climate change, most people favor the use of “green” subsidies and command-and-control regulations—a fact that frustrates economists of all political stripes who contend that a carbon tax would be much cheaper and more effective. This Article argues that a cognitive bias known …

The Evangelical Debate Over Climate Change, John Copeland Nagle

John Copeland Nagle

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …

Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein

Gabriel Eckstein

Although climate change is expected to have major consequences that affect the global environment in its broadest sense, one of the earliest and most direct impacts will be on Earth’s fresh water systems. While some regions will experience increased precipitation, others will suffer serious scarcity. Among others, consequences are likely to include severe flooding, extreme droughts, and meandering border-rivers. This, in turn, will affect human migration patterns, population growths, agricultural activities, economic development, and the environment. This article explores the impact that climate change will have on regional and global freshwater resources and the resulting legal and policy implications that …

An Economic Analysis Of Liability And Compensation For Harm From Large-Scale Solar Climate Engineering Field Research, Jesse Reynolds

Jesse Reynolds

A Critical Examination Of The Climate Engineering Moral Hazard And Risk Compensation Concern, Jesse Reynolds

Jesse Reynolds

Controlling Power Plants: The Co-Pollutant Implications Of Epa's Clean Air Act § 111(D) Options For Greenhouse Gases, Alice Kaswan

Alice Kaswan

Existing power plants are the nation’s largest single source of carbon emissions. In the absence of comprehensive federal climate change, EPA is forging ahead with power plant controls through § 111(d) of the Clean Air Act. This article focuses on one critical consideration: the ancillary impacts of carbon controls on associated co-pollutants, like sulfur oxides, particulates, nitrogen oxides, and mercury. The article focuses on an array of regulatory options, including both “inside-the-fence” reductions at power plants and “outside-the-fence” measures that reduce power sector emissions, like renewable energy and consumer energy efficiency. The article then evaluates the co-pollutant consequences of several …

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

Alice Kaswan

Beginning in June 2009, environmental justice groups brought several controversial lawsuits against California’s climate change program, sparking concern in the mainstream environmental community that the actions would frustrate the state’s climate progress and discourage other states from taking action. This essay, prepared for the University of San Diego’s symposium on “California in the Spotlight: Successes and Challenges in Climate Change Law,” does not pass judgment on the decision to sue. Instead, it uses the lawsuits as a jumping off point for understanding the environmental justice critique of California’s cap-and-trade program, a key feature of the state’s implementation of its climate …

See The Mojave!, John C. Nagle

John Copeland Nagle

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

Patricia E. Salkin

Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.

Government "Green" Requirements And "Leedigation", Patricia Salkin, Graham Grady, Nicole Mueller, Susan Herendeen

Patricia E. Salkin

No abstract provided.

The Green Development Movement: Smart Growth With A Green Label, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Seven Principles For Equitable Adaptation, Alice Kaswan

Alice Kaswan

Given the inevitability of serious climate impacts, climate change adaptation is becoming an urgent priority. Policy makers at the local, regional, state, and federal level are struggling to determine how to parlay existing authorities and develop new measures to avoid future calamity.

Successful adaptation will require not only attention to physical infrastructure, but to the underlying socioeconomic conditions that strongly determine the severity of climate impacts. Given the importance of underlying socioeconomic factors, this essay argues that equity should be a central feature of emerging domestic climate adaptation initiatives. It suggests seven principles for achieving equitable adaptation, principles designed to …

Domestic Climate Change Adaptation And Equity, Alice Kaswan

Alice Kaswan

It is now commonly accepted that climate change will lead to sea-level rise, more extreme storms, heat waves, wildfires, changing weather patterns, and the spread of disease. Reducing greenhouse gas emissions is necessary, but not sufficient. Global, national, and subnational adaptation measures to reduce climate harm are essential.

This article argues that equity should be a central feature of emerging domestic climate adaptation initiatives. It details how more frequent and intense “natural” disasters, long-term impacts on habitability, and public health threats will have unequal impacts within the United States. The article suggests seven principles for achieving equitable adaptation, principles designed …

An Overview Of This Issue: Climate Change In 2009, Perry Wallace

Perry Wallace

No abstract provided.

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

Patricia E. Salkin

New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Climate Change, The Clean Air Act, And Industrial Pollution, Alice Kaswan

Alice Kaswan

EPA has braved controversy by applying the Clean Air Act (CAA) to greenhouse gas (GHG) emissions from stationary sources, including utilities and industry. Because GHG controls inevitably affect combustion, they will impact traditional pollutants (termed “co-pollutants”). The Article first argues, as a threshold matter, that co-pollutant consequences are relevant to climate policy choices, and that considering those consequences will lead to improved environmental, administrative, and economic outcomes. It then reviews the CAA’s stationary source provisions and EPA’s implementation of them to date, discussing both the CAA’s potential and its limitations.

Moving beyond the CAA on its own terms, the Article …

Reconciling Justice And Efficiency: Integrating Environmental Justice Into Domestic Cap-And-Trade Programs For Controlling Greenhouse Gases, Alice Kaswan

Alice Kaswan

In the last thirty years, two opposing trends have emerged in environmental policy: environmental justice and market-based mechanisms. They present fundamental tensions. The environmental justice movement’s distributional goals conflict with market programs’ focus on cost-effectively achieving aggregate goals, without regard to distribution. And the environmental justice movement’s participatory goals conflict with market programs’ focus on industry autonomy and privatized decisionmaking. The tension between environmental justice and markets is arising in the context of cap-and-trade programs for greenhouse gases (GHGs). While GHGs do not impose localized harms, GHG trading policies nonetheless raise distributional issues because GHG gas emissions are inevitably accompanied …

Climate Change, Corporate Strategy, And Corporate Law Duties, Perry E. Wallace

Perry Wallace

Although greenhouse-gas management now ranks among the world’s great challenges, this status did not obtain instantly—or easily. Today, however, reservations about the validity of global warming as a major threat are fading. They are fading, appropriately, as rapidly as some ice sheets and glaciers are melting. Indeed, the steady flow of new, compelling evidence joins an already considerable base of scientific, economic, and other certainties about the subject. The result of this evolution in climate-change certainty has been major change of global dimensions. In notable ways, the structures and the functions of governmental, economic, and social institutions around the world …

Decentralizing Cap-And-Trade? State Controls Within A Federal Greenhouse Gas Cap-And-Trade Program, Alice Kaswan

Alice Kaswan

Cap-and-trade programs for greenhouse gases (GHGs) present central political questions with significant economic and environmental ramifications. This paper addresses a critical structural issue: To what extent should states retain the capacity to develop stricter parameters within a federal cap-and-trade program? This Article argues that, within the confines of a federal trading program, states should retain substantial autonomy to establish their own direct regulatory requirements, impose their own offset policies, and adopt differing trading parameters to maximize a GHG trading program’s co-pollutant and other benefits. State autonomy is justified by benefits to the nation as a whole, since states can provide …

Greening The Grid And Climate Justice, Alice Kaswan

Alice Kaswan

This short symposium essay argues that the collateral environmental and economic justice benefits of greening the grid provide support for transformative climate policies that speed the development of fossil fuel alternatives. More broadly, policymakers should integrate climate justice considerations into the design of any new energy infrastructure in order to maximize the benefits and minimize the risks of the profound transition ahead. While efforts to integrate climate justice could complicate climate and energy legislation, they would, on balance, further rather than hinder the political prospects for greening the grid. The essay concludes by encouraging an inclusive and participatory process for …

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

Alice Kaswan

A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency …