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Full-Text Articles in Law

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard Jun 2022

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.


Legal Provisions On Shared Use Of Mining Infrastructure: Rail, Port, And Power, Logan Hinderliter, Martin Dietrich Brauch, Perrine Toledano May 2022

Legal Provisions On Shared Use Of Mining Infrastructure: Rail, Port, And Power, Logan Hinderliter, Martin Dietrich Brauch, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

In 2011, CCSI began to research how mining infrastructure can be leveraged for sustainable development and in 2013 created an economic, legal, and operational framework to generate shared-use benefits from rail, ports, power, water, and internet and telecommunications. CCSI has published many works on shared use in the mining sector. Those works, along with other mining-related publications and mining concessions available online, ground the analytical framework of this paper, provide insight on the economic drivers of the mining sector, and detail how legal provisions – including laws, regulations, and contractual terms – can forefront shared use.

This paper is part of CCSI ...


Helping New Jersey State Agencies And Departments Align Their Actions With Ghg Reduction Mandates And Environmental Justice Principles, Jennifer Danis, Zoe Makoul May 2022

Helping New Jersey State Agencies And Departments Align Their Actions With Ghg Reduction Mandates And Environmental Justice Principles, Jennifer Danis, Zoe Makoul

Sabin Center for Climate Change Law

This white paper analyzes New Jersey’s implementation gap in both the climate and justice space. Its findings are potentially applicable to the many other states who have set climate and justice goals, without robustly embedding them into their existing legal and administrative landscapes. New Jersey already has GHG reduction targets, a plan, and mapped pathways. While more aggressive tactics and targets may be required to meet evolving scientific knowledge, and cost-effective technology and markets will evolve over time, New Jersey’s climate-alignment tools and pathways are clear. The EMP, the 2020 GWRA 80x50 Report, and EO-274, among other strong ...


Incorporating Climate Change In Nepa Reviews: Recommendations For Reform, Michael Burger, Romany M. Webb, Jessica A. Wentz May 2022

Incorporating Climate Change In Nepa Reviews: Recommendations For Reform, Michael Burger, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

The National Environmental Policy Act (“NEPA”) requires federal agencies to conduct an environmental review prior to moving ahead with any major federal project, plan, or program that could significantly affect the environment. As part of the environmental review, agencies must share information with, and solicit feedback from, the public. The goal is to improve federal decision-making by ensuring that agencies take a hard look at the environmental effects of their actions and fully inform the public about those effects.

In guidance issued in 2016, the Council on Environmental Quality (“CEQ”)—the federal body charged with implementing NEPA—identified climate change ...


Exploring The Bedrock For Earth Jurisprudence, Maria Antonia Tigre Apr 2022

Exploring The Bedrock For Earth Jurisprudence, Maria Antonia Tigre

Sabin Center for Climate Change Law

This article calls for a reassessment of our core beliefs on how we relate to the environment through a deep dive into the philosophical foundations of environmental protection. With this purpose, it shows how Earth-centered discourses have existed in human societies and civilizations for millennia. Different religious and philosophical underpinnings all share a view of humanity as an integral part of an organic whole, revering all living things. While recent developments in jurisprudence may appear novel, they are somewhat latent and emergent. Theories of land ethics, rights of nature, Earth-centered environmental ethics, wild law, and Earth jurisprudence all build on ...


New Producer Contract Terms And Uncertainty: Lessons From The Recent Past, Patrick R.P. Heller, Perrine Toledano, David Mihalyi, Tehtena Mebratu-Tsegaye Mar 2022

New Producer Contract Terms And Uncertainty: Lessons From The Recent Past, Patrick R.P. Heller, Perrine Toledano, David Mihalyi, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

The petroleum industry is volatile, and governments in “new producer” countries have operated at a significant information disadvantage when negotiating with international oil companies. This challenge is growing today; new producer countries face intensifying questions around whether to offer fiscal incentives to maintain investment in the face of 1) the pandemic-induced volatility in oil prices and 2) long-term questions about the future of the industry in the face of the climate crisis and the global energy transition.

This confluence of short-term and long-term uncertainty is prompting a reexamination of the narrative that once took hold in many new producer countries ...


Legal Primer: Respecting The Human Rights Of Communities In Wind And Solar Project Deployment, Sarah Dolton-Zborowski, Sam Szoke-Burke Mar 2022

Legal Primer: Respecting The Human Rights Of Communities In Wind And Solar Project Deployment, Sarah Dolton-Zborowski, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

As a companion to the Business Guide, the Legal Risk Primer is geared towards general counsels and corporate legal teams, as well as internal and external stakeholders. It provides an overview of the wide range of potential legal risks for wind and solar energy companies associated with community-related adverse human rights impacts. The legal risks outlined arise from home and host government laws, community litigators, financiers, and power purchase agreements.

Together, these two resources support wind and solar energy companies – as well as external stakeholders seeking to influence companies, including investors, civil society organizations, and project-affected communities – in driving a ...


How Much Have The Oil Supermajors Contributed To Climate Change?, Jiarui Chen, Perrine Toledano, Martin Dietrich Brauch Mar 2022

How Much Have The Oil Supermajors Contributed To Climate Change?, Jiarui Chen, Perrine Toledano, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the 40-year period 1980–2019, annual carbon dioxide (CO2) emissions from fossil fuel combustion, including flaring, increased by more than 80%, and total emissions from those sources represented approximately 83% of anthropogenic CO2 emissions (also including cement production and land-use change) without accounting for sinks. Understanding the carbon footprint of countries and companies along the oil value chain is fundamental to outlining paths to reduced reliance on fossil fuels. However, academic analyses of carbon footprints are limited by the lack of a reliable dataset and carbon accounting method that would allow comparisons across countries and companies.


North Africa Can Reduce Europe's Dependence On Russian Gas By Transporting Wasted Gas Through Existing Infrastructure, Mark Davis, Perrine Toledano, Thomas Schorr Mar 2022

North Africa Can Reduce Europe's Dependence On Russian Gas By Transporting Wasted Gas Through Existing Infrastructure, Mark Davis, Perrine Toledano, Thomas Schorr

Columbia Center on Sustainable Investment Staff Publications

Russia's war against Ukraine is a wake-up call to reduce Europe's dependence on Russian oil, gas, and coal. It is also a defining moment to accelerate the energy transition to a net-zero society with more supply diversity, energy security, and resilience. Europe needs to massively invest in a cleaner energy system. In the short term, this crisis should accelerate our focus on reducing waste gas from flaring, venting, and leaking – some 260 billion cubic meters (BCM) globally or 1.7x that of the European Union's gas imports from Russia. By capturing gas from flaring, venting, and leaking ...


Ccsi’S Consolidated Feedback On The Wba Draft Nature Benchmark Methodology, Columbia Center On Sustainable Investment Mar 2022

Ccsi’S Consolidated Feedback On The Wba Draft Nature Benchmark Methodology, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Private sector actors are paying more attention to their negative impacts on climate, nature, and biodiversity. CCSI engages with private sector initiatives, frameworks, and benchmarks in this area to ensure the core corporate responsibility to respect human rights is prioritized and addressed.

As part of this work, in March and April 2022, CCSI submitted comments to and engaged with the World Benchmarking Alliance on their Draft Methodology for their Nature and Biodiversity Benchmark. The World Benchmarking Alliance is a leading multi-stakeholder organization which creates benchmarks to publicly assess and rank the world's most influential companies on their contributions to ...


Climate Action Needs Investment Governance, Not Investment Protection And Arbitration, Columbia Center On Sustainable Investment Mar 2022

Climate Action Needs Investment Governance, Not Investment Protection And Arbitration, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

A response by the Columbia Center on Sustainable Investment to the OECD Public Consultation on Investment Treaties and Climate Change.

The Columbia Center on Sustainable Investment (CCSI) — a joint research center of Columbia Law School and the Earth Institute at Columbia University — explores elements of the international investment legal framework, including the impact of investment treaties, investor–state dispute settlement, and home and host government policies governing inward and outward investment, among many other issues.


A Pause On Proof-Of-Work: The New York State Executive Branch's Authority To Enact A Moratorium On The Permitting Of Consolidated Proof-Of-Work Cryptocurrency Mining Facilities, Jacob Elkin Mar 2022

A Pause On Proof-Of-Work: The New York State Executive Branch's Authority To Enact A Moratorium On The Permitting Of Consolidated Proof-Of-Work Cryptocurrency Mining Facilities, Jacob Elkin

Sabin Center for Climate Change Law

As cryptocurrency mining facilities have expanded their energy consumption, certain fossil fuel power plants have increased energy generation to provide behind-the-meter power to cryptocurrency miners. The New York legislature has responded by proposing bills to enact a moratorium on state permitting of such consolidated facilities while the New York Department of Environmental Conservation (DEC) studies their impacts through a Generic Environmental Impact Statement (GEIS), but these bills have stalled. This white paper analyzes the legal authority of the New York executive branch to put in place such a moratorium and concludes that the executive branch does possess such authority, though ...


Business Guide: Respecting The Human Rights Of Communities In Wind And Solar Project Deployment, Sarah Dolton-Zborowski, Sam Szoke-Burke Mar 2022

Business Guide: Respecting The Human Rights Of Communities In Wind And Solar Project Deployment, Sarah Dolton-Zborowski, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Companies involved in commercial wind and solar projects are facing heightened scrutiny of their human rights performance. This Business Guide provides companies with information and strategies to identify, prevent, mitigate, and account for adverse human rights impacts that they cause, contribute to, or are directly linked to through their operations, products, or services by virtue of their business relationships. It may also be useful for investors, business partners, government actors, civil society organizations, communities, and other stakeholders.

Drawing on the UN Guiding Principles for Business and Human Rights, the Guide provides practical recommendations, with over 40 examples from peer companies ...


Opposition To Renewable Energy Facilities In The United States: March 2022 Edition, Hillary Aidun, Jacob Elkin, Radhika Goyal, Kate Marsh, Neely Mckee, Maris Welch, Leah Adelman, Shane Finn Mar 2022

Opposition To Renewable Energy Facilities In The United States: March 2022 Edition, Hillary Aidun, Jacob Elkin, Radhika Goyal, Kate Marsh, Neely Mckee, Maris Welch, Leah Adelman, Shane Finn

Sabin Center for Climate Change Law

Achieving lower carbon emissions in the United States will require developing a very large number of wind, solar, and other renewable energy facilities, as well as associated storage, distribution, and transmission, at an unprecedented scale and pace. Although host community members are often enthusiastic about renewable energy facilities’ economic and environmental benefits, local opposition often arises. This report updates a previous Sabin Center report, published in February 2021, and documents local restrictions on and opposition to siting renewable energy projects for the period from 1995 to early 2022. Importantly, the authors do not make normative judgments as to the legal ...


Plus Politics: Tackling The Eia Impact Gap, Columbia Center On Sustainable Investment Feb 2022

Plus Politics: Tackling The Eia Impact Gap, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

PLUS POLITICS is a multi-part series of briefs from the Columbia Center on Sustainable Investment that aims to encourage practitioners to apply a more systematic political lens to their work on governance in the extractive industries. Each brief will deal with a key governance issue and will provide a brief analysis of its political challenges and practical recommendations to address them.


Reframing Global Biodiversity Protection After Covid-19: Is International Environmental Law Up To The Task?, Maria Antonia Tigre, Natalia Urzola, Victoria Lichet Feb 2022

Reframing Global Biodiversity Protection After Covid-19: Is International Environmental Law Up To The Task?, Maria Antonia Tigre, Natalia Urzola, Victoria Lichet

Sabin Center for Climate Change Law

In an increasingly interdependent world, the climate and biodiversity crises are, more than ever, inextricably tied to human health and the transmission of infectious diseases. The 2020 Covid-19 pandemic has irrevocably shown us that the exploitation of wild species and deforestation increases and modifies the interface between people and wildlife, leading to a spillover of diseases from wildlife to people. From a legal perspective, the gaps in international environmental law have contributed to the lack of an effective international biodiversity policy. In light of the challenges brought by the pandemic, there is now an opportunity to rethink our existing legal ...


West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews Jan 2022

West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews

Faculty Scholarship

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. Below, we present ...


Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark Jan 2022

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – in ...


Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh Jan 2022

Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh

Faculty Scholarship

This Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law.


The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh Jan 2022

The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of ...


Criminalized Students, Reparations, And The Limits Of Prospective Reform, Amber Baylor Jan 2022

Criminalized Students, Reparations, And The Limits Of Prospective Reform, Amber Baylor

Faculty Scholarship

Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students – disproportionately Black – who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast restoration of ...


An Attack On Local Authority, Richard Briffault, Kim Haddow Jan 2022

An Attack On Local Authority, Richard Briffault, Kim Haddow

Faculty Scholarship

In the 2021 legislative sessions, Republican state lawmakers introduced a glut of preemption bills aimed at giving states more power over the administration of local government operations, signifying a new, deeper level of state interference into the inner workings of cities and counties. . . . Entering the 2021 legislative sessions, Republican state lawmakers used their power to respond to the events of 2020 – the pandemic, the racial justice movement, the presidential election, and what they perceived to be local government overreach (Brownstein 2021) – by introducing a surge of preemption bills aimed at appropriating the machinery of local government operations. As a result ...


Structural Biases In Structural Constitutional Law, Jonathan S. Gould, David E. Pozen Jan 2022

Structural Biases In Structural Constitutional Law, Jonathan S. Gould, David E. Pozen

Faculty Scholarship

Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions – not just episodically, based on who holds power at a given moment, but systematically over time – in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival of political ...


The Input Fallacy, Talia B. Gillis Jan 2022

The Input Fallacy, Talia B. Gillis

Faculty Scholarship

Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms.

Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails to address discrimination concerns and threatens to create an algorithmic myth of colorblindness. The ubiquity of correlations in big data combined with the flexibility and complexity of machine learning means that one cannot rule out the consideration of protected characteristics, such as race, even when one formally excludes them. Moreover, using ...


Evaluating Legal Needs, Luz Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa Jan 2022

Evaluating Legal Needs, Luz Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas – a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs ...


Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard Jan 2022

Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

A 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.

A variety of CDR techniques, both terrestrial and ocean-based, have ...


Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan Jan 2022

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New ...


Equity's Federalism, Kellen R. Funk Jan 2022

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at ...


Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis Jan 2022

Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis

Faculty Scholarship

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of agreements among ...


Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan Jan 2022

Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds ...