Environmental Law Commons^™

Implementing Climate Remedies, Camila Bustos

Vanderbilt Law Review

Climate change litigation has emerged as a powerful tool for addressing the climate crisis, particularly in the face of executive and legislative inaction. Across jurisdictions, courts have issued landmark decisions mandating stronger mitigation targets and recognizing rights-based claims against governments and corporations. While recent scholarship has examined the trends, legal theories, and broader effects of this relatively new phenomenon, it has primarily focused on bringing and winning legal challenges. Less attention has been paid to a crucial phase: the implementation and enforcement of judicial rulings. A deeper understanding of how climate remedies are implemented can provide valuable insights for climate …

Governing Complexity: A Comparative Assessment Of Four Governance Models With Applications To Climate Change Mitigation And Adaptation, J. B. Ruhl, Niko Soininen, Barbara Cosens, Lance Gunderson

Vanderbilt Law School Faculty Publications

Responses to ongoing global climate change include economy-wide mitigation efforts and large-scale societal adaptation that demand novel approaches to governance. An array of innovative governance models has been proposed since the late 1900s and early 2000s as scholars observed inadequacies of government-centric and formal legal approaches to natural resource management, complexity and uncertainty, failures of neoliberal economic reforms, and cross-scale institutional arrangements. Four such models have come to dominate the solution-oriented discourse on climate change governance: adaptive governance, transition governance, transformation governance, and anticipatory governance. We compare these models in terms of their origin and applicability to deal with the …

The Moral Boundary Of The Firm, Michael P. Vandenbergh, Jane E. Miller, Margaret Blair, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

Scholars have wrestled with the legal boundary of the firm for generations. The legal boundary limits the extent to which a firm can be held liable for the torts, contractual, and regulatory obligations of other corporations. The existence of a legal boundary suggests that the law limits incentives for firms to control the climate and other environmental harms caused by their corporate suppliers. Yet recent research demonstrates that many of the largest corporations impose environmental requirements on their suppliers that exceed the legal requirements imposed on these suppliers. This suggests that some factors other than the threat of liability may …

Improving Distributional Analysis In Regulatory Evaluation: An Assessment Of The 2023 Circular A-4, W. Kip Viscusi, A. Fraas, John D. Graham, Kerry Krutilla, Randall Lutter, Jason F. Shogren

Vanderbilt Law School Faculty Publications

The November 2023 revision to OMB Circular A-4 expands upon past guidance on distributional assessment in regulatory impact analysis and adds new options for conducting it, such as the use of distributional weights based on the marginal utility of income. This note explores the implications of key changes suggested in the 2023 guidelines and addresses modeling and data challenges that could yield recommendations for future revisions. We suggest that progress in improving distributional assessment in regulatory impact analysis is most likely if federal agencies collaborate with the National Science Foundation to produce model distributional analyses for different types of regulations.

Analysis Of Environmental Law Scholarship 2023-2024, Michael P. Vandenbergh, Chloe C. Allen, Linda K. Breggin, Sydney C. Schoonover

Vanderbilt Law School Faculty Publications

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of some of the most creative and feasible environmental law and policy proposals from the legal academic literature each year. The articles that are considered include all environmental law articles published in select law journals during the previous academic year. The law journal articles that are republished and discussed are selected by Vanderbilt University Law School students with input from their course instructors and an …

Filling The Sackett Gap: The Private Governance Option, Michael P. Vandenbergh, Elodie O. Currier Stoffel, Steph Tai

Vanderbilt Law School Faculty Publications

The Supreme Court's decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap-the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett's expansive language, the end of Chevron deference, and the 2024 presidential election, and lower …

Valuing Heat-Related Mortality Risks, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

Heat-related mortality risks are a substantial component of the looming costs of climate change in the United States and globally. This article presents the results from a risk-risk survey to test whether U.S. respondents place a valuation premium on mortality risks from heat relative to cancer and transportation risks. The questionnaire exploits exogenous shocks to temperatures during a heat wave and randomized elements to further test whether preferences vary with heat exposure or the age of individuals exposed to heat risks. The results provide strong evidence that there is no valuation premium in the U.S. for heat-related risks. Subjects valued …

Information For Environmental Governance: The Value Of State Of The Environmental Reports In A Polarized Era, Michael Vandenbergh, M. Caballero, Ethan I. Thorpe

Vanderbilt Law School Faculty Publications

The increasingly dysfunctional federal democratic process poses chal- lenges to effective, consistent responses to the most important environmental risks. Information about the state of the environment and the performance of environmental protection measures can play a surprisingly important role by providing the information necessary for the public and decision-makers to resist disinformation efforts and prioritize the responses to these threats. Until 1997 the White House Council on Environmental Quality (CEQ) produced annual State of the Environment (SOE) reports as required by Section 201 of the National Environmental Policy Act of 1969. In response to paperwork reduc- tion legislation adopted in …

Reconciling Regulatory Impact Analyses And Agencies, Sydney C. Schoonover, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Federal administrative agencies frequently undertake regulatory impact analyses to provide the basis for promulgating new regulations and justify the reasonableness of regulations upon judicial re- view. Using analytical methods, agencies quantify and compare the relative costs and benefits of regulatory alternatives, seeking policies that maximize net societal benefits, subject to statutory constraints. Loper Bright Enterprises v. Raimondo threatens to upend this methodological check on the rationality of agency action in two distinct ways: first by limiting the permissibility of regulatory impact analysis as a basis for regulation, and second by replacing technical and scientific-informed components of the analysis with judicial …

Cleaning The Plastic Spring, Trip Johnson

Vanderbilt Law Review

Everyday plastic items typically display the chasing arrows symbol with a resin identification code. When seen on a plastic product, this seemingly insignificant trade combination causes the average consumer’s mind to confer unwarranted environmental benefits to the item. Plastic, unlike aluminum, glass, or paper, poses barriers to recycling that diminish a region’s recycling capabilities. Despite knowing most Americans lack the knowledge necessary to properly discard plastic waste, plastic-producing companies continue to plaster chasing arrows symbols and resin identification codes onto their products. Worse yet, these companies do so without explaining the available recycling opportunities or challenges associated with recycling most …

The Missing "T" In Esg, Danielle A. Chaim, Gideon Parchomovsky -- Professor Of Law

Vanderbilt Law Review

Environmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, …

Climate Zoning, Christopher Serkin

Vanderbilt Law School Faculty Publications

As the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions. The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes. This Article argues that both approaches are appropriate in some places but not in others. Not all density is created equal, and compact multifamily housing at the urban fringe may actually in- crease GHG emissions. Moreover, where density is appropriate, deregulation will not necessarily produce it. And, finally, green building codes will increase housing costs and …

Environmental Justice As Environmental Human Rights, John H. Knox, Nicole Tronolone

Vanderbilt Journal of Transnational Law

For many years, the environmental justice movement in the United States and the evolution of international human rights law concerning the environment have pursued parallel but separate paths, only occasionally noting that they share common concerns. This Article seeks to build a stronger bridge between them, in three ways.

First, it presents the most detailed restatement of environmental human rights law yet published. International human rights bodies have developed a robust environmental jurisprudence setting out concrete obligations on States, including procedural obligations to provide public access to environmental information, decision-making, and remedies, substantive obligations to adopt and enforce effective environmental …

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 …

The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’S Environmental And Humanitarian Impact, Alexandra L. Bernard

Vanderbilt Journal of Entertainment & Technology Law

The increasing speed at which social media trends come and go has caused fashion trends to accelerate in response to consumers’ ever-changing demands. To keep up with the latest fads, fast fashion companies design their clothing only to withstand a couple of uses before the item is no longer in good condition. The manufacture and discard of cheaply made clothing creates a variety of environmental issues. Brands conceal the treatment and compensation of their workers throughout the supply chain; the available information suggests that garment workers are mistreated. Finally, the disposal of these clothing items creates tension between the United …

Taking Tennessee Electric With A Private Vehicle Charging Market: An Ev Infrastructure Policy For Conservative States, Claire Bonvillain J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

The transition from petroleum to electricity as a fuel source for vehicles is an essential step in the effort to stop harmful climate change. The transportation sector currently produces more carbon emissions in the United States than any other area. Recognizing this, the federal government and several states have recently devoted resources to facilitating the transition to large-scale electric vehicle (EV) use. In particular, there must be a nationwide network of EV charging infrastructure so that EV drivers can confidently drive EVs anywhere. Much of the legal research on increasing the number of EV charging facilities and consumer EV purchases …

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 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 …

Quasi-Experimental Evidence On The Impact Of State Recycling And Deposit Laws: Household Recycling Following Interstate Moves, W. Kip Viscusi, Joel Huber, Jasen Bell

Vanderbilt Law School Faculty Publications

This article estimates the effects on recycling behavior of state recycling laws and deposit laws based on changes in household recycling before and after interstate moves. Estimates from a national panel dataset of 1,498 households who moved between states provide a quasi-experimental test otherwise not possible given long-term stability of such laws in any state. Compared to national average recycling rates, moves to states with deposits for beverage containers increased the number of material types recycled by 41%. More stringent recycling laws are also effective, but they have a smaller impact. Recycling laws boosted the number of materials recycled by …

Changes In Household Recycling Behavior: Evidence From Panel Data, Joel Huber, Jason Bell, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This article uses a longitudinal national U.S. dataset with 232,309 pairs of same-household observations to estimate one-year or two-year changes in recycling behavior. Most households recycled at least one material, as 83% recycle paper, cans, glass, or plastic in the past year, with an average recycling rate of 2.8 materials. Recycling habits are stable, as 68% of households do not change the number of materials recycled from the previous year. Changes in county recycling are reflected in immediate changes in household behavior but at 25% of the change in the county recycling rate. Recycling rates are greater after being newly …

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 …

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

Ecolabeling In The Multinational Mining Industry: A Method Toward Environmental Sustainability, Regina Raze

Vanderbilt Journal of Transnational Law

The international mining industry's environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Vanderbilt Journal of Transnational Law

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

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 …

A Regulatory Scheme For The Dawn Of Space Tourism, Molly M. Mccue

Vanderbilt Journal of Transnational Law

Today, companies like Blue Origin and Virgin Galactic have successfully launched paying customers into space, forging the future of the space tourism industry. While a growing space tourism industry promotes scientific advancement and opens an activity once reserved for trained astronauts to the public, the industry generates new issues and reveals the vulnerabilities of international space law. This Note explores the history of commercial spaceflight and the international agreements that comprise the current legal regime. It argues that space tourism presents a need for a new international agreement to address three vulnerabilities in the current international regime: environmental protections, protections …

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 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 …