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 …

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 …

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 …

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 …

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.

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 …

Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Cascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade …

The Gap-Filling Role Of Private Environmental Governance, Jim Rossi, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Private environmental governance provides new tools that can fill gaps in government regulatory regimes. The Tennessee Valley Authority (TVA) is a valuable case study for testing the efficacy of private environmental governance because it is one of the largest utility carbon emitters and is largely insulated from near-term federal and state government pressure to reduce emissions. TVA is not on a trajectory to achieve the decarbonization targets necessary to meet the goals of the Paris Agreement, but private governance initiatives can motivate TVA to accelerate its decarbonization process. TVA's securities filings acknowledge that it faces material threats on the energy …

What Happens When The Green New Deal Meets The Old Green Laws?, J. B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The multi-faceted infrastructure goals of the Green New Deal will be impossible to achieve in the desired time frames if the existing federal, state, and local siting and environmental protection statutory regimes are applied. Business, labor, property rights, environmental protection, and social justice interests will use them to grind the Green New Deal to a snail's pace. Using the renewable energy transition as the infrastructure case study, this Essay is a call to arms for the need to design New Green Laws for the Green New Deal. Part I briefly summarizes what we are learning about the pace and magnitude …

Beyond Green Infrastructure--Integrating The Ecosystem Services Framework Into Urban Planning Law And Policy, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Despite the heavy emphasis in legal scholarship on federal and state governance of environmental policy, cities have had their champions as well. Legal scholars who stand out as having defined a position for local governance in the environmental domain include John Nolan, Jamison Colburn, Keith Hirokawa, Tony Arnold, and, on any such list, Julian Juergensmeyer. Indeed, in the United States and many other nations, cities have been leaders in many of the looming issues of environmental policy, including those with global dimensions, like climate change mitigation, and surely those with local focus, like climate change adaptation. In the United States, …

Beyond Wickedness: Managing Complex Systems And Climate Change, Michael P. Vandenbergh, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

This Article examines the argument that climate change is a "super wicked" problem. It concludes that the wicked problem concept is best viewed as a rhetorical device that served a valuable function in arguing against technocratic hubris in the early 1970s but is unhelpful and possibly counterproductive as a tool for modern climate policy analysis. Richard Lazarus improved on this analysis by emphasizing the urgency of a climate response in his characterization of the climate problem as "super wicked." We suggest another approach based on Charles Lindblom's "science of muddling through." The muddling through approach supports the rhetorical points for …

The New Revolving Door, Michael P. Vandenbergh, J. M. Gilligan, H. Feurman

Vanderbilt Law School Faculty Publications

This Article demonstrates that a new revolving door is emerging between environmental-advocacy groups and the private sector. Since the birth of the modern regulatory state, scholars have raised concerns that the revolving door between corporations and government agencies could induce government officials to pursue corporate interests rather than the public interest. The legal and political-science literatures have identified several benefits that may arise from the revolving door, but the thrust of the scholarship to date has emphasized the potential harms. Using several data sources, we demonstrate that as the private sector has begun to play an increasing role in environmental …

Introduction: Governing Wicked Problems, J. B. Ruhl, J. Salzman

Vanderbilt Law School Faculty Publications

“Wicked problems.” It just says it all. Persistent social problems—poverty, food insecurity, climate change, drug addiction, pollution, and the list goes on—seem aptly condemned as wicked. But what makes them wicked, and what are we to do about them? The concept of wicked problems as something more than a generic description has its origins in the late 1960s. Professor Horst Rittel of the University of California, Berkeley, Architecture Department posed the term in a seminar to describe “that class of social system problems which are ill-formulated, where the information is confusing, where there are many clients and decision makers with …

The Wicked Problem Of Zoning, Christopher Serkin

Vanderbilt Law School Faculty Publications

Zoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today.

Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities …

A Global Assessment Of The Law And Policy, J. B. Ruhl, J. Salzman

Vanderbilt Law School Faculty Publications

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the “atmospheric trust.” The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions to abate climate change.

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

Vanderbilt Law School Faculty Publications

This Article contributes to the development of adaptive governance theory by articulating and situating the role of formal law and government as the facilitator, but not central controller, of adaptive governance. To advance the understanding of adaptive governance, we argue that it can be understood in the broader context of scholarship covering the observed emergence of new governance, the efforts to develop theoretical understandings through decentered theory, and the refinement of constitutional understanding through democratic experimentalism. Synthesis of these three themes in turn informs the role of law and government in working with emergent governance responses to complexity to manage …

Adaptive Management For Ecosystem Services, J. B. Ruhl, Robin Kundis Craig

Vanderbilt Law School Faculty Publications

Managing the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars has fully embraced the dynamism, uncertainty, and complexity of the WUI—that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the fact that rampant wildfire is itself the …

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.

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Vanderbilt Law School Faculty Publications

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the …