Law Commons^™

The Missing "T" In Esg, Danielle A. Chaim -- Assistant Professor, Gideon Parchomovsky -- Professor Of Law

Vanderbilt Law Review

Environmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, …

Using Objective Characteristics To Target Household Recycling Policies, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Household recycling is valuable because it reduces demand for virgin raw materials and lessens the cost of making products containing paper, metal, glass, or plastic. Effective recycling programs limit the amount of materials sent to landfills. Understanding the policies and contexts that are most conducive to promot- ing recycling can assist in the development of more effective recycling systems. It can also help businesses that are concerned with the disposition of their products and packaging. Using the most comprehensive data set on U.S. household recycling behavior, this Comment quantifies the relative impact on recycling of characteristics associ- ated with recycling …

The Green's Dilemma: Building Tomorrow's Climate Infrastructure Today, J. B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

"We need to make it easier to build electricity transmission lines." This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate's champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation's greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How …

Climate Damages, Globalism, And Federal Regulation, Arthur Fraas, John D. Graham, Kerry Krutilla, Randall Lutter, Jason Shogren, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The U.S. Environmental Protection Agency recently proposed for public comment new higher estimates of damages from greenhouse gas (GHG) emissions. The estimates, called the social cost of carbon (SCC), are "the monetary value of the net harm to society of emitting a metric ton of carbon dioxide to the atmosphere in a given year." Ranging from $120 to $340 per metric ton of carbon dioxide (C02) emitted for 2020, these estimates represent harm to everyone on earth from a metric ton of C02 emissions, and therein lies a key issue. Recent administrations have split on whether the U.S. government should …

Taking Tennessee Electric With A Private Vehicle Charging Market: An Ev Infrastructure Policy For Conservative States, Claire Bonvillain J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

The transition from petroleum to electricity as a fuel source for vehicles is an essential step in the effort to stop harmful climate change. The transportation sector currently produces more carbon emissions in the United States than any other area. Recognizing this, the federal government and several states have recently devoted resources to facilitating the transition to large-scale electric vehicle (EV) use. In particular, there must be a nationwide network of EV charging infrastructure so that EV drivers can confidently drive EVs anywhere. Much of the legal research on increasing the number of EV charging facilities and consumer EV purchases …

The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’S Environmental And Humanitarian Impact, Alexandra L. Bernard

Vanderbilt Journal of Entertainment & Technology Law

The increasing speed at which social media trends come and go has caused fashion trends to accelerate in response to consumers’ ever-changing demands. To keep up with the latest fads, fast fashion companies design their clothing only to withstand a couple of uses before the item is no longer in good condition. The manufacture and discard of cheaply made clothing creates a variety of environmental issues. Brands conceal the treatment and compensation of their workers throughout the supply chain; the available information suggests that garment workers are mistreated. Finally, the disposal of these clothing items creates tension between the United …

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

The End Externalities Manifesto: Restatement, Loose Ends, And Unfinished Business, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Don Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss.

In their End Environmental Externalities Manifesto ("Manifesto") they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is …

A Major Answer To The Major Questions Doctrine, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.

The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Vanderbilt Journal of Transnational Law

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

Ecolabeling In The Multinational Mining Industry: A Method Toward Environmental Sustainability, Regina Raze J.D. Candidate

Vanderbilt Journal of Transnational Law

The international mining industry's environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. …

Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best

Vanderbilt Law School Faculty Publications

According to its many critics, zoning bears significant responsi- bility for the housing crisis in America andfor promoting unsustain- able development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land- consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to pro- mote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will al- most certainly …

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

A Regulatory Scheme For The Dawn Of Space Tourism, Molly M. Mccue

Vanderbilt Journal of Transnational Law

Today, companies like Blue Origin and Virgin Galactic have successfully launched paying customers into space, forging the future of the space tourism industry. While a growing space tourism industry promotes scientific advancement and opens an activity once reserved for trained astronauts to the public, the industry generates new issues and reveals the vulnerabilities of international space law. This Note explores the history of commercial spaceflight and the international agreements that comprise the current legal regime. It argues that space tourism presents a need for a new international agreement to address three vulnerabilities in the current international regime: environmental protections, protections …

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

The Hierarchy And Performance Of State Recycling And Deposit Laws, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

States can foster recycling of waste materials through a variety of policies. The majority of the states have recycling laws for waste products such as glass, plastic, cans, and paper. These laws vary in terms of stringency. The hierarchy we developed orders the laws as follows: laws that make recycling mandatory, laws that require the provision of recycling opportunities, laws that require the development of a recycling plan, and laws that specify a recycling goal. Based on national recycling data with over 400,000 observations, we find that the amount of recycling households undertake increases with the degree of stringency of …

Disclosure Of Private Climate Transition Risks, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve fi nancial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest …

The Pandemic Legacy: Accounting For Working-From-Home Emissions, Michael P. Vandenbergh, Sharon Shemake

Vanderbilt Law School Faculty Publications

The COVID-19 pandemic has resulted in millions of employees working from home, a development that is challenging public and private standards for reporting and reducing greenhouse gas emissions. Under these standards, corporations disclose the emissions from large buildings and the power plants that supply them with energy, but most do not report other types of emissions. When employees shift from working at an office to working at home, the corporate emissions appear to have decreased even though they have simply shifted beyond the boundary of the reporting requirement. This move creates greenwashing risks--the ability to claim that corporate greenhouse gas …

The Role Of Private Environmental Governance In Climate Adaption, Michael P. Vandenbergh, B. M. Johnson

Vanderbilt Law School Faculty Publications

This Article examines the role of private environmental governance (PEG) in climate change adaptation. PEG occurs when private organizations perform traditionally governmental functions such as providing public goods and reducing negative externalities. PEG initiatives that target climate change mitigation have expanded rapidly in the last decade and have been the subject of research in multiple fields, but PEG initiatives that target climate change adaptation have received less attention. As a first step, the Article develops a definition of private governance regarding climate adaptation, identifies several types of PEG adaptation initiatives, and briefly identifies research gaps.

The Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …

Central Banks And Climate Change, Christina P. Skinner

Vanderbilt Law Review

Central banks are increasingly called upon to address climate change. Proposals for central bank action on climate change range from programs of “green” quantitative easing to increases in risk-based capital requirements meant to deter banks from lending to climate-unfriendly business. Politicians and academics alike have urged climate risk as both macroeconomic and financial stability risk. Relative to counterparts abroad, the U.S. central bank—-the Federal Reserve—-has been more measured in its response.

This Article offers a legal explanation why. It urges that, despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address …

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 …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

De- And Re-Constructing Public Governance For Biodiversity Conservation Symposium: Governing Wicked Problems, Alejandro E. Camacho

Vanderbilt Law Review

This Article deconstructs the substantive, procedural, and structural components of public governance in the United States to explain how the existing legal infrastructure lacks the legal adaptive capacity to manage the wickedness of biodiversity loss. That is, particularly in the context of global anthropogenic climate change, the substantive goals and tools of public action, the processes used by governmental institutions to advance such goals and implement such tools, and the structure of allocated authority among public institutions have been devised in ways that make biodiversity loss virtually impossible to tackle meaningfully.

First, the substantive goals of natural resources law are …

Resilience Theory And Wicked Problems, Robin Kundis Craig

Vanderbilt Law Review

This Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems—now social-ecological systems (“SESs”)—do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least not over the long term, …

Wicked Problems, Foolish Decisions: Promoting Sustainability Through Urban Governance In A Complex World Symposium: Governing Wicked Problems, Scott D. Campbell, Moira Zellner

Vanderbilt Law Review

Why do wicked problems often give birth to bad policy choices? Put another way, why do people—in the face of complex social challenges—make misdiagnoses, ineffective decisions, or no decisions at all? Typical answers point to a plethora of suspects: impatience, myopia, political stalemate, narrow-mindedness, fear and risk aversion, hubris, greed, rational self-interest, ignorance, reliance on emotionally appealing but misleading anecdotal stories, misuse of evidence, and misunderstanding of uncertainty.

Amid these divergent explanations, two classes emerge: one lies in the shortcomings and mistakes of the problem solvers, and the other lies in the nature of the problem itself. One stance is …

Designing Law To Enable Adaptive Governance Of Modern Wicked Problems, Barbara A. Cosens, J.B. Ruhl, Niko Soininen, Lance Gunderson

Vanderbilt Law Review

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …