Environmental Law Commons^™

The Relative Weights Of Direct And Indirect Experiences In The Formation Of Environmental Risk Beliefs, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law School Faculty Publications

Direct experiences, we find, influence environmental risk beliefs more than the indirect experiences derived from outcomes to others. This disparity could have a rational basis. Or it could be based on behavioral proclivities in accord with the well-established availability heuristic or the vested-interest heuristic, which we introduce in this article. Using original data from a large, nationally representative sample, this article examines the perception of, and responses to, morbidity risks from tap water. Direct experiences have a stronger and more consistent effect on different measures of risk belief. Direct experiences also boost the precautionary response of drinking bottled water and …

The Democratization Of Energy, Joseph P. Tomain

Vanderbilt Journal of Transnational Law

The electricity industry is changing in dramatic ways. Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

Fukushima's Shadow, Lincoln L. Davies, Alexis Jones

Vanderbilt Journal of Transnational Law

The March 11, 2011 tragedy at the Fukushima Daiichi power station in Japan immediately etched its place in history as arguably the most noteworthy of the three nuclear energy disasters to date. This Article surveys the response to Fukushima both in Japan and worldwide. It observes that rather than stopping what many thought was a burgeoning "nuclear renaissance," the global policy reaction post-Fukushima was more varied. Using the examples of Germany, the United States, and China, the Article examines the three general approaches to nuclear energy that nations have followed since Fukushima: abandonment, status quo, and expansion. The Article then …

Who Speaks For The Fish? The Tragedy Of Europe's Common Fisheries Policy, Emily Self

Vanderbilt Journal of Transnational Law

The Common Fisheries Policy, enacted in 1983 as the European Union's primary overfishing regulation scheme, is widely regarded as a failure. Vast over exploitation in Europe's fisheries persists thirty years later, posing grave ecological consequences as well as economic devastation to Europe's fishing industry. In 2013, the EU overhauled the Common Fisheries Policy and enacted measures that oblige the EU and member states to support ecologically sustainable fishing practices, ban the harmful practice of discarding fish at sea, and give the member states more flexibility to tailor implementation to suit local conditions. While the 2013 reforms were momentous, those changes …

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 …

Positive And Negative Spillover Of Pro-Environmental Behavior: An Integrative Review And Theoretical Framework, Heather B. Truelove, Amanda R. Carrico, Elke U. Weber, Kaitlin Toner Raimi, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A recent surge of research has investigated the potential of pro-environmental behavior interventions to affect other pro-environmental behaviors not initially targeted by the intervention. The evidence evaluating these spillover effects has been mixed, with some studies finding evidence for positive spillover (i.e., one pro-environmental behavior increases the likelihood of performing additional pro-environmental behaviors) and others finding negative spillover (i.e., one pro-environmental behavior decreases the likelihood of additional pro-environmental behaviors). Different academic disciplines have investigated this question, employing different methodologies and arriving at divergent findings. This paper provides a unifying theoretical framework and uses the framework to review the existing research …

Trends In Environmental Law Scholarship 2008-2013, Michael P. Vandenbergh, Linda K. Breggin, David L. Stabb, Emma T. Doineau

Vanderbilt Law School Faculty Publications

As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles published during the previous academic year. In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years 2008-2013.

Specifically, this Article reports on the number of environmental law articles published in general law reviews and environmental law journals. We find that although the total varied somewhat from year to year, more than 400 environmental law articles were published each year during the 2008-2013 period. Additionally, …

Energy And Climate Change: A Climate Prediction Market, Michael P. Vandenbergh, Kaitlin T. Raimi, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

Much of energy policy is driven by concerns about climate change. Views about the importance of carbon emissions affect debates on topics ranging from the regulation of electricity generation and transmission to the need for incentives to develop emerging technologies. Government efforts to fund and communicate climate science have been extraordinary, but recent polling suggests that roughly half of the American population is unsure or does not believe that anthropogenic climate change is occurring. Among some populations, belief in climate change is declining even as the climate science becomes more certain. Much of the doubt occurs among individuals who support …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim A. 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 …

Getting To The (Non) Point: Private Governance As A Solution To Nonpoint Source Pollution, Kyle W. Robisch

Vanderbilt Law Review

Chances are that today you have already unwittingly advanced the slow but steady demise of America's freshwater supply. The sausage and egg biscuit you ate for breakfast, the half-empty bottle of Drano you dumped into your backyard, and the quick trip to the grocery store-these seemingly innocent actions each significantly degrade American watersheds.' In response to this systemic and persistent assault on water quality, Congress enacted the Federal Water Pollution Control Act of 1972. More commonly known as the Clean Water Act ("CWA"), this legislation attempted to take an aggressive and comprehensive approach to improving water quality. To achieve its …

Got A Better Idea?: Promoting Greenhouse Gas Regulations Through Solution-Based Informal Rulemaking, Lorraine J. Baer

Vanderbilt Journal of Entertainment & Technology Law

In September 2013, the US Environmental Protection Agency (EPA) proposed a rule regulating greenhouse gas emissions from newly constructed, coal-fired power plants. Coal industry lawyers immediately began preparing for litigation. Like many industry-led arbitrary and capricious challenges, their goal is to stop the regulations from moving forward. This Note analyzes the new rule, concluding that although the EPA's rule is legally sound, it does have some potential weaknesses. Rather than merely blocking the regulations through litigation, however, this Note proposes that interest groups should instead submit their own solutions during the notice-and-comment rulemaking process, which would reduce regulatory gridlock and …

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Vanderbilt Journal of Transnational Law

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of …

The Implications Of Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

If we look back twenty years from now, will private governance be as much a part of environmental law and policy as market mechanisms, or will it have faded into the woodwork along with many other promising new developments? In this Essay, I briefly examine four issues that will play a large role in determining the answer to this question. Part I examines whether PEG is a coherent, discrete concept. Part II explores the extent to which PEG affects environmental behavior and environmental quality. Part III discusses the interactions between private and public environmental governance. Part IV then evaluates whether …

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 …

Trends In Environmental Law Scholarship 2008-2012, Michael P. Vandenbergh, Linda K. Breggin, Jacob P. Byl, Lynsey R. Gaudioso, Seamus T. Kelly

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 the best ideas about environmental law and policy from the legal academic literature. As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles published during the previous academic year. In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic …

Trends In Environmental Law Scholarship 2008-2011, Linda K. Breggin, Jacob P. Byle, Lynsey R. Gaudioso, Seamus T. Kelly

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 the best ideas about environmental law and policy from the legal academic literature. As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles written in the past year. In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years …

Cultivating A Green Political Landscape: Lessons For Climate Change Policy From The Defeat Of California's Proposition 23, Eric Biber

Vanderbilt Law Review

In the fall of 2010, two major political battles over climate change in the United States reached their climax. At the federal level, efforts to enact comprehensive climate change legislation-already in doubt after the Senate refused to consider legislation passed by the House-were terminated for the near future by a landslide win for conservative Republicans, who are overwhelmingly hostile to climate change legislation, in midterm Congressional elections.' At the state level, California voters considered Proposition 23, a ballot initiative that would have effectively repealed the state's comprehensive global warming statute (AB 32, enacted in 2006). Yet despite the fact that …

Climate Change Meets The Law Of The Horse, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the …

The Environmental Cost Of Misinformation: Why The Recommendation To Use Warm Water For Handwashing Is Problematic, Amanda R. Carrico, Micajah Spoden, Kenneth A. Wallston, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Multiple government and health organizations recommend the use of warm or hot water in publications designed to educate the public on best practices for washing one’s hands. This is despite research suggesting that the use of an elevated water temperature does not improve handwashing efficacy, but can cause hand irritation. There is reason to believe that the perception that warm or hot water is more effective at cleaning one’s hands is pervasive, and may be one factor that is driving up unnecessary energy consumption and greenhouse gas emissions. We examine handwashing practices and beliefs about water temperature using a survey …

An Empirical Assessment Of Corporate Environmental Crime-Control Stragies, Michael P. Vandenbergh, Sally S. Simpson, Carole Gibbs, Melissa Rorie, Lee Ann Slocum, Mark A. Cohen

Vanderbilt Law School Faculty Publications

Corporate illegality is often attributed to greed by corporate managers and insufficient legal safeguards. Underlying this argument is an explicit critique of corporate crime regulatory systems. Yet there is little systematic investigation of the relative merits of different types or components of crime-control strategies; research comparing more punitive command-and- control strategies with self-regulatory approaches is particularly lacking. In this Article, we assess these crime prevention-and-control mechanisms in the context of individual and situational risk factors that may increase the likelihood of illegal behavior in the environmental arena. We use data drawn from two groups of business managers who participated in …

Harmonizing Distributed Energy And The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a green pass under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA …

Truths We Must Tell Ourselves To Manage Climate Change, Robert H. Socolow

Vanderbilt Law Review

In 1958, Charles David Keeling began measuring the concentration of carbon dioxide (C02) in the atmosphere, at a site 11,000 feet above sea level near the top of Mauna Loa on the "big island" of Hawaii. The time series of monthly averages, the "Keeling Curve," is the iconic figure of climate change (see Figure 1). The curve oscillates and rises. The annual oscillations (whose details are seen in the Figure's inset) are the consequences of the seasonal breathing of the northern-hemisphere forests, which remove C02 from the atmosphere during their growing season and return C02 to the atmosphere as their …

Environmental Law And Fossil Fuels: Barriers To Renewable Energy, Uma Outka

Vanderbilt Law Review

Renewable energy is gaining momentum around the globe, but the United States has only just begun to change its energy trajectory away from fossil fuels. Today, only about 10% of electricity in the United States is generated from renewable energy, and most of that comes from hydroelectric power plants that have been operating for many years. The U.S. Energy Information Administration projects 30% of new capacity over the next twenty years will utilize renewable resources, without significant changes in U.S. energy policy, but at that pace renewable energy will still account for only 16% of generated electricity. These prospects stand …

Harmonizing Commercial Wind Power And The Endangered Species Act Through Administrative Reform, J. B. Ruhl

Vanderbilt Law Review

What could be greener than wind power? That's easy-saving endangered species! The wind power industry has learned the hard way what timber companies, federal land management agencies, hydropower generators, state highway departments, real estate developers, small coastal villages, the Environmental Protection Agency, farmers, major metropolitan governments, and more like them around the nation know all too well-never, ever take your eyes off the Endangered Species Act ("ESA"). It may be green and one of the darlings of our nation's renewable energy future, but wind power has no "green pass" to get out of the ESA.

The reason wind power has …

Can We Regulate Our Way To Energy Efficiency? Product Standards As Climate Policy, Noah M. Sachs

Vanderbilt Law Review

Alternative energy supplies get most of the attention in the climate change debate, but reducing energy demand should be the dominant strategy for cutting global greenhouse gas emissions. Dozens of technical studies have concluded that improving the efficiency of automobiles, furnaces, motors, consumer electronics, lighting, air conditioners, and other energy-using products is the cheapest and fastest way to achieve dramatic reductions in greenhouse gas emissions.' In fact, avoiding catastrophic global heating largely depends on how fast energy efficient technology can be deployed over the next few decades.

Energy efficiency can be promoted through multiple policies, such as energy taxes, a …

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

Vanderbilt Law Review

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 …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law Review

Energy policy debates often focus on increasing the supply of renewable energy, but energy demand merits equal attention. Low- carbon energy sources will not be able to displace fossil fuels at the levels necessary to achieve climate goals if global demand continues to grow at projected rates. To meet the widely endorsed goal of 50% global carbon emissions reductions by 2050, including 80% reductions from developed countries, global emissions from fossil fuel use will need to decline by more than seven billion tons from projected levels by 2050. Major new sources of low-carbon energy will become available, but it is …

Personal Environmental Information: The Promise And Perils Of The Emerging Capacity To Identify Individual Environmental Harms, Katrina Fischer Kuh

Vanderbilt Law Review

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity. Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home. Radio frequency identification ("RFID") chips embedded in recycling collection bins track household recycling behaviors, including everything from whether the household is recycling to whether its members properly separate their recyclables. Regulators use aerial imagery and geographic information systems ("GIS") technology to detect violations of local building codes and the illegal filling of wetlands. Interactive "ecomaps" allow city residents to compare environmental performance by zip code. Even information …