Law Commons^™

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 …

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 …

Forks In The Road, Michael P. Vandenbergh, J. M. Gilligan

Vanderbilt Law School Faculty Publications

This Essay outlines a simple heuristic that will enable public and private policymakers to focus on the most important climate change mitigation strategies. Policymakers face a dizzying array of information, pressure from advocacy groups, and policy options, and it is easy to lose sight of the forest for the trees. Many policy options are attractive on the surface but either fail to meaningfully address the problem or are unlikely to be adopted in the foreseeable future. If policymakers make the right decision when confronting three essential choices or forks in the road, though, the result will be 60% to 70% …

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big …

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.

The Production Function Of The Regulatory State, J.B. Ruhl, Jonathan R. Nash, James Salzman

Vanderbilt Law School Faculty Publications

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we …

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 …

Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch

Vanderbilt Law School Faculty Publications

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

In Defense Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.

The Presidential Memorandum On Mitigation, J.B. Ruhl

Vanderbilt Law School Faculty Publications

On November 3, 2015, President Obama issued a Presidential Memorandum aimed at unifying the mitigation practice and policy for activities carried out and approved by the Departments of Defense, Interior, and Agriculture, the EPA, and the National Oceanic and Atmospheric Administration... See Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, 80 Fed. Reg. 68743 (Nov. 6, 2015). The broad policy goal of the Memorandum is to ensure that the agencies mitigation policies are clear, work similarly across agencies, and are implemented consistently within agencies. Id. at 68743. The Memorandum also emphasizes the need for transparency, measurable …

The Brave New Path Of Energy Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes.

These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been target …

Beyond Gridlock, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock. Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response. Yet Microsoft, Google and many other companies have committed to become carbon neutral. Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

Vanderbilt Law School Faculty Publications

"Resource shuffling" occurs when different subnational approaches to carbon regulation create variations in the costs of production across jurisdictions. California is the most aggressive jurisdiction in the United States to address climate change and has adopted a cap & trade program for its greenhouse gas (GHG) emissions. This Article addresses the resource shuffling issue presented by California's cap-and-trade program and evaluates the merits of various legal and regulatory solutions to the problem.

Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now …

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell

Vanderbilt Law School Faculty Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is …

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed …

Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy …

Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Drawing on the recent financial crisis, we introduce the concept of macro-risk. We distinguish between micro-risks, which can be managed within conventional economic frameworks, and macro-risks, which threaten to disrupt economic systems so much that a different approach is required. We argue that catastrophic climate change is a prime example of a macro-risk. Research by climate scientists suggests disturbingly high likelihoods of temperature increases and sea level rises that could cause the kinds of systemic failures that almost occurred with the financial system. We suggest that macro-risks should be the principal concern of rational risk assessment and management, but they …

Background Principles, Takings, And Libertarian Property: A Reply To Professor Huffman, J.B. Ruhl, Michael C. Blumm

Vanderbilt Law School Faculty Publications

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in "Lucas v. South Carolina" Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but …

Energy And Climate Change: Key Lessons For Implementing The Behavioral Wedge, Michael P. Vandenbergh, Paul C. Stern, Gerald T. Gardner, Thomas Dietz, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

The individual and household sector accounts for roughly 40 percent of United States energy use and carbon dioxide emissions, yet the laws and policies directed at reductions from this sector often reflect a remarkably simplistic model of behavior. This Essay addresses one of the obstacles to achieving a “behavioral wedge” of individual and household emissions reductions: the lack of an accessible, brief summary for policymakers of the key findings of behavioral and social science studies on household energy behavior. The Essay does not provide a comprehensive overview of the field, but it discusses many of the leading studies that demonstrate …

Siting Transmission Lines In A Changed Milieu: Evolving Notions Of The "Public Interest" In Balancing State And Regional Considerations, Jim Rossi, Ashley C. Brown

Vanderbilt Law School Faculty Publications

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition …

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Cities, Green Construction, And The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The geographic footprint of cities--the space they occupy--is relatively small in comparison to their ecological footprint, which is measured in terms of impact on the sustainability of resources situated mostly outside of the urban realm. Ironically, the Endangered Species Act (ESA), though widely regarded as one of the most powerful environmental laws, has been and continues to be administered with respect to urbanized land masses primarily with the objective of managing their geographic footprints. This Article uses the example of "green construction" techniques to explore this disconnect between the macro-scale contribution of cities' ecological footprints to species endangerment and the …

Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster

Vanderbilt Law School Faculty Publications

We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced …

Agriculture And Ecosystem Services: Strategies For State And Local Governments, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Agriculture has long been the Rubik's Cube of environmental policy. Although agriculture is a leading cause of pollution and other environmental harms, it has been resistant to regulation and remarkably successful at requiring payment to do the right thing. This article focuses on hints of movement in a new direction for agriculture, arising out of a merger between the age-old practice of paying farmers to do what is right, the fear of losing agricultural lands to suburban development, the rising fiscal burdens to state and local jurisdictions presented by new suburban development, and the new understanding that farms may hold …

Making Nuisance Ecological, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Common law nuisance doctrine has the reputation of having provided much of the strength and content of environmental law prior to the rise of federal statutory regimes in the 1970s, but since then has taken a back seat to regulatory law with respect to the environment. In particular, whereas nuisance doctrine has been criticized - many say too harshly - as being inadequate for dealing with the demands of modern pollution control, it has never been considered as having much at all to do with management of ecological concerns. Yet nuisance law evolves with changed circumstances and new knowledge. This …