Law Commons^™

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

The Energy Improvement Of The Urban Existing Building Stock: A Proposal For Action Arising From Best Practice Examples, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

Improving energy efficiency in existing buildings presents an opportunity for reducing greenhouse gas emissions. Numerous measures meant to increase efficiency and decrease emissions have been implemented in cities across Europe and the United States. Standing out from the rest is New York City, a remarkable example of commitment to the fight against climate change. The city has urged its authorities to take important measures in order to eliminate (or at least diminish) the adverse effects resulting from its special characteristics, great urban density, and large percentage of greenhouse gas emissions coming from an aged building stock. Yet there is always …

The Application Of Open Records Laws To Publicly Funded Science, Lauren Kurtz

Sabin Center for Climate Change Law

The federal Freedom of Information Act (FOIA) and the state law equivalents promote government transparency by allowing citizens to request copies of administrative records. Any citizen can file a request with a government entity for copies of government documents, and the government must either produce the information or explain why it is exempt from production (for example, for national security purposes).

While these laws were originally written with an eye toward policy makers and bureaucrats, in recent years, these open records laws have been used increasingly to request information from publicly funded scientists. Scientists employed by federal agencies, state agencies, …

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project …

Planning For The Effects Of Climate Change On Natural Resources, Jessica A. Wentz

Sabin Center for Climate Change Law

Climate change has important implications for the management and conservation of natural resources and public lands. The federal agencies responsible for managing these resources have generally recognized that considerations pertaining to climate change adaptation should be incorporated into existing planning processes, yet this topic is still treated as an afterthought in many planning documents. Only a few federal agencies have published guidance on how managers should consider climate change impacts and their management implications. This Article explains why these agencies are legally required to consider climate- related risks in planning processes, and presents recommendations and a model protocol for conducting …

How Did Federal Environmental Impact Statements Address Climate Change In 2016?, Saloni Jain, Omri Klagsbald, Giovanna Leigh Crozier-Fitzgerald, Taylor Quinn, Elana Sulakshana

Sabin Center for Climate Change Law

In partnership with the Sabin Center for Climate Change Law, this project surveyed 31 federal environmental impact statements (EISs) published from September through November 2016. The objective was to evaluate how federal agencies were implementing the guidance released in August 2016 by the Council on Environmental Quality (CEQ) on how to account for climate change and greenhouse gas (GHG) emissions in the environmental review process.

Carbon Pricing In New York Iso Markets: Federal And State Issues, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

Does the law permit the New York Independent Service Operator (NYISO) to incorporate, directly or indirectly, a carbon price into New York State’s wholesale electricity market? And, if so, what is the appropriate design of a carbon pricing scheme for the NYISO market? For example, at what level should a carbon price be set and when/how should it be adjusted? How should the revenues generated by such a price be used? What impact (if any) will it have on the Regional Greenhouse Gas Initiative (RGGI) and New York’s Clean Energy Standard? This working paper explores answers to those questions with …

I Beg To Differ: Taking Account Of National Circumstances Under The Paris Agreement, The Icao Market-Based Measure, And The Montreal Protocol’S Hfc Amendment, Susan Biniaz

Sabin Center for Climate Change Law

This paper explores the different ways in which negotiators to three recent environmental instruments accounted for different national circumstances in formulating commitments and other aspects of cooperation in the instruments. The author finds that the negotiators of these instruments have significantly expanded the arsenal of differentiation tools based on considerations pertaining to logic, fairness, limited capacity, and negotiating leverage.

Increasing Gasoline Octane Levels To Reduce Vehicle Emissions: A Review Of Federal And State Authority, Romany M. Webb

Sabin Center for Climate Change Law

This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action …

How Existing Environmental Laws Respond To Climate Change And Its Mitigation, Justin Gundlach

Sabin Center for Climate Change Law

Existing environmental laws interact with public health priorities and with aspects of the changing climate in numerous and varied ways. This chapter does not attempt to catalogue those interactions, but instead focuses on two that are especially important and illustrative of the operation and limitations of existing environmental laws vis-à-vis climate change-driven challenges. The first interaction is between pollution levels boosted by climate change and pollution control laws that employ health-based standards to determine pollution limits. The second is between a wider array of existing laws and the effects of climate change mitigation measures on public health. Examining these interactions …

Critics Float Legal Theories To Challenge Pruitt's Science Advisor Policy, Maria Hegstad

Sabin Center for Climate Change Law

House Democrats and a Columbia University law professor are detailing possible legal arguments that could be used to challenge Administrator Scott Pruitt’s controversial new directive barring scientists who are receiving an EPA research grant from serving on one of its scientific advisory committees.

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

The Paris Climate Agreement – Assessment Of Strengths And Weaknesses, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper provides an overview of the core elements of the Paris Climate Agreement and offers an assessment of its key strength and weaknesses. The paper concludes with thoughts on what is required for its effective implementation.

Ea Expert Panel Report: Reflections On Canada's Proposed Next Generation Assessment Process, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

In this paper, we share our preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017. The report is the result of an open and thorough public engagement process that heard from a large number of Canadians with a keen interest in EA. The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment. Some elements will require further thought, and much of the critical detail …

Why Environmental Policies Fail, Jan G. Laitos, Juliana Okulski

Sturm College of Law: Faculty Scholarship

Proposing environmental policy which is consistent with the laws of nature, this book is for those who are not just interested in the ways humans have harmfully altered their environment, but instead wish to learn why the many governmental policies in place to curb such behaviour have been unsuccessful. Since humans began to exploit natural resources for their own economic ends, we have ignored a central principle - nature and humans are not separate but are a unified interconnected system, where neither is superior to the other. Policy must reflect this reality. We failed to follow this principle in exploiting …

Risk And Regulatory Calibration: Wto Compliance Review Of The U.S. Dolphin-Safe Tuna Labeling Regime, Cary Coglianese, André Sapir

All Faculty Scholarship

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a “legitimate regulatory distinction.” In its recent compliance decision in the US-Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the U.S. dolphin-safe tuna labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB’s application of the notion of risk-based regulation in the US-Tuna II dispute and finds …

Environmental Law At The Borders, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Pipelines to the north. Walls to the south. Between President Trump's issuance of a permit for the Keystone XL pipeline crossing from Canada and his promise to build "The Wall," the politics of our national borders rarely have been in as much turmoil as they are today. And as with any infrastructure project, environmental policy has been deeply in play all the way. But the environmental law of the borders might surprise you. Indeed, arguably there isn't any for these two projects.

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Faculty Articles

Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism.

However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has …

Transforming (Perceived) Rigidity In Environmental Law Through Adaptive Governance, J.B. Ruhl, Hannah Gosnell, Brian C. Chaffin, Craig A. Arnold

Vanderbilt Law School Faculty Publications

The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal hammer forcing federal agencies to consider endangered species needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated …

Carbon Taxation By Regulation, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that, even though a carbon tax remains politically elusive, a carbon taxation by regulation has begun to flourish as a way of financing carbon reduction. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. While carbon taxation by regulation offers many benefits, regulators' narrow fixation on consumer protection and economic goals has hobbled realization of its potential. …

Nova Scotia's Cap & Trade System: A Modest Proposal, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The government of Nova Scotia has just released a discussion paper on its proposed Cap and Trade (C&T) System for provincial GHG emission reductions. The C&T system is a key component of Nova Scotia’s contribution to Canada’s overall effort to implement the Paris Climate Agreement in line with the Pan Canadian Framework on Climate Change. This article summarizes the key elements of the proposed system, identified shortcomings and proposes a way forward for Nova Scotia.

Ea Expert Panel Report: A Preliminary Assessment Of Canada's Proposed New Federal Assessment Process, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The paper offers an overview and assessment of the key recommendations of the EA Expert Panel's report on the reform of the federal environmental assessment process in Canada. The paper covers the proposed application of the process, the process and institutions, the proposed approach to jurisdictional cooperation, the scope, the role of regional and strategic assessments, public participation, the role of indigenous peoples, and follow up and compliance. The paper concludes that the report offers a very useful blueprint for reform, but that many details have yet to be worked out.

From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle

Articles, Book Chapters, & Popular Press

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …

Introduction: The Post-Carbon World: Advances In Legal And Social Theory, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Climate Regulation Of The Electricity Industry: A Comparative View From Australia, Great Britain, South Korea, And The United States, Lincoln L. Davies, Penelope Crossley, Peter Connor, Siwon Park, Shelby Shaw-Hughes

Utah Law Faculty Scholarship

Climate regulation of the electricity sector is one of the most important growing — and rapidly changing — areas of law and policy today. This is both because of the critical role that electricity plays in modern society, acting as economic lifeblood, and because of electricity’s part in driving climate change, accounting for more greenhouse gas (GHG) emissions globally than any other activity. This article provides an introduction to different methods of regulating climate emissions from the electricity sector. It does so through detailed, comparative accounts of climate regulation of electricity in four different jurisdictions: Australia, Great Britain, South Korea, …

Trust Me, I'M A Pragmatist: A Partially Pragmatic Critique Of Pragmatic Activism, Joshua Galperin

Articles

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.

To highlight the contours of pragtivism, this Article tells the story of …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Galperin, Grace Heusner, Allison Sloto

Articles

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin

Articles

It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Beach Law Cleanup: How Sea-Level Rise Has Eroded The Ambulatory Boundaries Legal Framework, Alyson C. Flournoy

UF Law Faculty Publications

As the sea level rises, the boundaries between privately owned coastal property and sovereign submerged lands held in public trust are becoming increasingly contested. The common law doctrines that determine these boundaries under conditions of change—primarily accretion, erosion, reliction, and avulsion—have important implications for all those involved in adaptation planning along our coasts. This includes private owners of coastal property, local government officials seeking to develop and implement adaptation strategies, beachgoers seeking to use shrinking beaches, beach-tourism-dependent businesses, and courts facing cases involving boundary disputes at the water’s moving edge. This paper raises the questions of whether and how the …

The Smell Of Neglect : A Trans-Corporeal Feminism For Environmental Justice, Dayna Scott

Articles & Book Chapters

Environmental justice struggles are increasingly contests waged over data and knowledge, involving claims of expertise and counter-expertise (Corburn 2003). A common observation is that a reliance on formal science elevates the data generated by accredited knowledge professionals to a prime political position, ‘leaving little or no room for the layperson’ (Fischer 2000: 51; Yearley 2000). This results in a growing tension between those who have ‘knowledge’ and those who do not, as well as the active re-negotiation of those categories (Wiebe 2013). Residents of pollution hotspots and their allies in the environmental justice movement make a normative claim for valuing …