Law Commons^™

Climate Insecurity, Shi-Ling Hsu

Utah Law Review

Global climate change causes climatic events such as hurricanes, droughts, floods, and heat waves to occur more frequently and with greater severity. In addition to inflicting direct harms, climatic events disrupt the flow of commerce and natural resources, creating shortages of goods and services, sometimes temporarily, sometimes not. Climate change is getting worse, so climatic events will escalate over time, and as events cumulate, there is the potential for multiple events to heap harm on top of harm, exponentially increasing misery and disruption. What looms is the prospect of shortages of basic life necessities.

A vast literature on food and …

Market Myopia’S Climate Bubble, Madison Condon

Utah Law Review

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing occurs, drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: (1) Lack the fine-grained asset-level data they need in order to assess risk exposure; (2) Continue to rely on outdated means of assessing risk; (3) Have misaligned incentives resulting in climate-specific agency costs; (4) Have myopic biases exacerbated by climate change misinformation; and (5) Are impeded by captured …

Constitutional Authority, Common Resources, And The Climate, Anthony Moffa

Utah Law Review

History, text, and precedent reveal an understudied and underutilized source of constitutional authority for environmental protection—the Property Clause of Article IV, Section 3. The Clause vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This work re-examines these words, the context in which they were written, and the limited judicial decisions interpreting them with an eye towards increased congressional reliance on the Property Clause in the face of daunting threats to our natural environment. Much prior scholarly explanation of the Property Clause focused …

Up In The Air: A Fifty-State Survey Of Atmospheric Trust Litigation Brought By Our Children’S Trust, Anna Christiansen

Utah Law Review

Frustrated by government inaction in response to the threats posed by anthropogenic climate change, the advocacy organization Our Children’s Trust (OCT) is pursuing legal reform in every state in the United States. These efforts include petitioning state environmental agencies for rulemaking and filing lawsuits against those agencies and the states. The legal claims have generally been rooted in the public trust doctrine. This Note surveys OCT’s efforts and the evolution of the organization’s legal strategy, as OCT has recently based its lawsuits on violations of substantive due process, and in some cases, violations of the states’ own environmental laws. This …

Disclosing The Danger: State Attorney Ethics Rules Meet Climate Change, Victor B. Flatt

Utah Law Review

This Article suggests a novel concept in climate change law and attorney ethics law by proposing that many states’ attorney ethics laws could be interpreted to require, or at least permit, attorneys to disclose client activity relating to greenhouse gas emissions. Every state has some form of ABA Model Rule 1.6(b), either requiring or allowing attorneys to disclose client activities that result in death or substantial bodily harm. This Article asserts that precedent surrounding this disclosure rule indicates that the rule could be applicable to harms caused by greenhouse gas emissions. Attorney disclosures, in turn, could impact a wide swath …

The Incidental Environmental Agency, Tara K. Righetti

Utah Law Review

State oil and gas conservation agencies are the gatekeepers to oil and gas development: as the agencies charged with granting drilling permits, they decide if, when, where, and how oil and gas will be developed. As such, oil and gas conservation agencies sit on the front lines in the emerging, and increasingly irresolvable, struggle between fossil energy development and the environment. Current oil and gas conservation regulation is designed to promote development, maximize recovery of the resource, and protect the individual property rights of mineral owners. However, advocacy by environmental constituencies, including surface owners and local governments, has challenged the …

The (Next) Big Short And The End Of The Anthropocene, M. Alexander Pearl

Utah Law Review

It is incredibly difficult to imagine an event the likes of which humans have never seen before. That, in and of itself, renders the challenge to prepare for such an event even more difficult because there is no frame of reference pushing us to act. How do you prepare to avoid something which has never occurred in the history of human occupation? That is the challenge of climate change.

I argue that the Subprime Mortgage Crisis and its aftermath parallel the Climate Crisis in critical ways that should inform our tactics. Of course, there are obvious critical differences as well. …

Rethinking The Geography Of Local Climate Action: Multilevel Network Participation In Metropolitan Regions, Hari M. Osofsky

Utah Law Review

As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metroregional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.

This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action …