Environmental Law Commons^™

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 …

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, …

The Role Of Private Environmental Governance In Climate Adaptation, Michael P. Vandenbergh, Bruce 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.

Analysis Of Environmental Law Scholarship 2019-2020, Michael P. Vandenbergh, Stefan J. Berthelsen, Bryan Davidson, Linda K. Breggin

Vanderbilt Law School Faculty Publications

The goal of this Comment is to highlight the results of the ELPAR article selection process and to report on the environmental legal scholarship for the 2019-2020 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles. We also present the Top 20 articles that met ELPAR's criteria of persuasiveness, impact, feasibility, and creativity, from which four articles were selected to re-publish in condensed form with commentaries from leading practitioners and policymakers. Two additional articles received an honorable mention. Thus, this Comment provides an empirical …

The Pandemic Legacy: Accounting For Working-From-Home Emissions, Michael P. Vandenbergh, Sharon Shewmake

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 Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …

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 …

Convincing Conservatives: Private Sector Action Can Bolster Support For Climate Change Mitigation In The United States, Michael P. Vandenbergh, Ash Gillis, Kaitlin T. Raimi, Alex Maki, Ken Wallston

Vanderbilt Law School Faculty Publications

Finding routes to inspire political conservatives’ support for climate change mitigation is crucial in the United States. In an experiment with U.S. participants, we found that conservatives and moderates are more supportive of climate change mitigation when exposed to information about mitigation actions taken by the private sector. These results suggest that the private sector initiatives may be a way to bolster support for climate action across the U.S. political spectrum. We also tested for downstream spillover effects and found mixed results: Compared to reading about government regulations to mitigate climate change, reading about private sector climate actions led to …

Central Banks And Climate Change, Christina P. Skinner

Vanderbilt Law Review

Central banks are increasingly called upon to address climate change. Proposals for central bank action on climate change range from programs of “green” quantitative easing to increases in risk-based capital requirements meant to deter banks from lending to climate-unfriendly business. Politicians and academics alike have urged climate risk as both macroeconomic and financial stability risk. Relative to counterparts abroad, the U.S. central bank—-the Federal Reserve—-has been more measured in its response.

This Article offers a legal explanation why. It urges that, despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

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 …

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 …

Wicked Problems, Foolish Decisions: Promoting Sustainability Through Urban Governance In A Complex World Symposium: Governing Wicked Problems, Scott D. Campbell, Moira Zellner

Vanderbilt Law Review

Why do wicked problems often give birth to bad policy choices? Put another way, why do people—in the face of complex social challenges—make misdiagnoses, ineffective decisions, or no decisions at all? Typical answers point to a plethora of suspects: impatience, myopia, political stalemate, narrow-mindedness, fear and risk aversion, hubris, greed, rational self-interest, ignorance, reliance on emotionally appealing but misleading anecdotal stories, misuse of evidence, and misunderstanding of uncertainty.

Amid these divergent explanations, two classes emerge: one lies in the shortcomings and mistakes of the problem solvers, and the other lies in the nature of the problem itself. One stance is …

Resilience Theory And Wicked Problems, Robin Kundis Craig

Vanderbilt Law Review

This Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems—now social-ecological systems (“SESs”)—do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least not over the long term, …

The Super Wicked Problem Of Donald Trump, Richard J. Lazarus

Vanderbilt Law Review

In 2009 I published a law review article that both explained why I believed that climate change was a “super wicked” problem for lawmakers and offered specific recommendations for ways that any laws addressing climate change should be crafted in light of its super wicked nature. The purpose of this subsequent Article is to revisit, modify, and update my earlier analysis based on the actual events of the past decade. Such hindsight analysis necessarily requires acknowledging, a bit embarrassingly, the things that I got wrong. Though, in my partial (not complete!) defense, I am in good company given the wholly …

De- And Re-Constructing Public Governance For Biodiversity Conservation Symposium: Governing Wicked Problems, Alejandro E. Camacho

Vanderbilt Law Review

This Article deconstructs the substantive, procedural, and structural components of public governance in the United States to explain how the existing legal infrastructure lacks the legal adaptive capacity to manage the wickedness of biodiversity loss. That is, particularly in the context of global anthropogenic climate change, the substantive goals and tools of public action, the processes used by governmental institutions to advance such goals and implement such tools, and the structure of allocated authority among public institutions have been devised in ways that make biodiversity loss virtually impossible to tackle meaningfully.

First, the substantive goals of natural resources law are …

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

Vanderbilt Law Review

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …

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

Vanderbilt Law Review

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 …

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 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 …

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 …

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

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 …

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% …

Improving Climate Change Mitigation Analysis: A Framework For Examining Feasibility, Michael P. Vandenbergh, Kristian S. Nielsen, Et. Al.

Vanderbilt Law School Faculty Publications

Limiting global warming to 2`C or less compared with pre-industrial temperatures will require unprecedented rates of decarbonization globally. The scale and scope of transformational change required across sectors and actors in society raises critical questions of feasibility. Much of the literature on mitigation pathways addresses technological and economic aspects of feasibility, but overlooks the behavioral, cultural, and social factors that affect theoretical and practical mitigation pathways. We present a tripartite framework that ‘‘unpacks’’ the concept of mitigation pathways by distinguishing three factors that together determine actual mitigation: technical potential, initiative feasibility, and behavioral plasticity. The framework aims to integrate and …

Analysis Of Environmental Law Scholarship 2018-2019, Michael P. Vandenbergh, Courtney A. Tibbetts, Linda K. Breggin, Elizabeth A. Holden

Vanderbilt Law School Faculty Publications

The purpose of this article is to highlight the results of the ELPAR article selection process and to report on the environmental legal scholarship for the 2018-2019 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles. We also present the top 20 articles that met ELPAR's criteria of persuasiveness, impact, feasibility, and creativity, from which five articles were selected to republish in shortened form, some of them with commentaries from leading practitioners and policymakers. Thus, the goal of this article is to provide an …

The New Revolving Door, Michael P. Vandenbergh, J. M. Gilligan, Haley Feuerman

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 …

The Perception And Excessive Valuation Of Small, Publicized Drinking Water Risks, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Low probability risks create challenges for individual decisions and potential pressures for government regulation. This article reports original survey evidence regarding the public’s perception and valuation of water-related risks from plastic bottles with bisphenol A, residues in drinking water of the herbicide atrazine, and trace amounts of prescription drugs in water. People who believe that they face high water-related risks generally believe that the risks apply and, given that belief, are willing to pay more to limit the risk. However, the expressed willingness to pay for risk reductions is inordinately high even among those who are unsure of whether they …

Catastrophic Risk: Waking Up To The Reality Of A Pandemic?, W. Kip Viscusi, Jamison Pike, Jason F. Shogren, David Aadland, David Finnoff, Alexandre Skiba, Peter Daszak

Vanderbilt Law School Faculty Publications

Will a major shock awaken the US citizens to the threat of catastrophic pandemic risk? Using a natural experiment administered both before and after the 2014 West African Ebola Outbreak, our evidence suggests “no.” Our results show that prior to the Ebola scare, the US citizens were relatively complacent and placed a low relative priority on public spending to prepare for a pandemic disease outbreak relative to an environmental disaster risk (e.g., Fukushima) or a terrorist attack (e.g., 9/11). After the Ebola scare, the average citizen did not over-react to the risk. This flat reaction was unexpected given the well-known …