Environmental Law Commons^™

A Framework For Assessing The Impact Of Private Climate Governance, Michael P. Vandenbergh, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

The growing sense of urgency by the public for action to address climate change stands in stark contrast to the slow pace and limited accomplishments of national and international institutions to reduce greenhouse gas emissions. Political institutions face significant structural barriers to taking strong and rapid action to cut emissions, but private environmental governance has potential to avoid those barriers and achieve rapid emissions reductions. It appears unlikely that private governance alone can reduce emissions enough to stabilize the climate, but it does have the potential to reduce emissions sufficiently and quickly enough to buy time for enacting more comprehensive …

Gmo Corn, Mexico, And Coloniality, Ernesto Hernandez-Lopez

Vanderbilt Journal of Entertainment & Technology Law

Genetically modified ("GMO") corn germinates legal controversies in Mexico. Since 2013, Mexican courts have temporarily suspended GMO corn because it threatens biodiversity. In the Colectividad del Maiz lawsuit, courts have prohibited Mexico from issuing commercial GMO permits while the litigation continues. Companies like Monsanto need these permits to sell GMO seeds. Corn is the most essential food item for millions of Mexicans and is central to Mexican culture. Mexicans wait for Colectividad del Maiz's resolution, siding with biodiversity or GMOs. This Article describes scientific GMO controversies and analyzes biosecurity, class-action, and international environmental law. It argues that this corn fight …

A Sinking World: A Model Framework For Climate Change Adaptation Measures In Coastal Cities, Emma Rose

Vanderbilt Journal of Transnational Law

Climate change has already begun wreaking havoc on coastal communities across the globe, including Miami, Venice, and the Philippines. Adaptation mechanisms may be the most powerful weapons these communities have to combat sea level rise and the other disastrous effects of a warming planet. However, these adaptation programs must fit within each nation's unique federal and local regulatory schemes. Additionally, when they are funded by the federal government or foreign sources, these communities may have to sacrifice some autonomy over their implementation. While adaptation strategies can be broken down into three primary modes--resistance, transformation, and retreat--the most effective combination of …

Hold The High-Water Line: A Transnationally Informed Coastline Protection Scheme In The United States, Charlie Spencer-Davis

Vanderbilt Journal of Transnational Law

Climate change and sea level rise degrade the environment, infrastructure, and private property along US coastlines. The magnitude of these harms will only accelerate unless the United States improves its coastal protection scheme. Informed by approaches in Israel, the United Kingdom, and China, this Note offers a dynamic solution to coastline protection by way of a federal Rolling Coastal Conservation Easements Act. The act would authorize states to develop and implement rolling easements on private coastal properties. This flexible scheme would include compensation for those landowners who grant easements to their localities, while giving private property owners the option to …

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 …

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, …

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.

The Fault In Our Stars: Challenging The Fcc's Treatment Of Commercial Satellites As Categorically Excluded From Review Under The National Environmental Policy Act, Ramon J. Ryan

Vanderbilt Journal of Entertainment & Technology Law

Mega satellite constellations, such as SpaceX's Starlink, have the ability to connect humans across the globe in a way never before possible. However, the unprecedented deployment of tens of thousands of satellites into orbit around Earth creates the risk of altering the night sky for astronomers and the public for decades to come, as well as the risk of polluting the environment through the use of toxic satellite components. The Federal Communications Commission considers commercial-satellite projects categorically excluded from environmental review despite the National Environmental Policy Act's requirement that federal agencies review projects for their environmental effects. A court would …

Responsible Precautions For Uncertain Environmental Risks, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Uncertain future risks pose cognitive and analytical challenges to household decision makers. Risks with uncertain probabilities, coupled with potentially severe outcomes pose problems for decision-making and are prone to overreactions. Imprecision in risk estimates generates behavioral distortions such as ambiguity aversion. This article presents new empirical results indicating household overvaluations of uncertain threats posed by several drinking water risks: traces of prescription drugs in drinking water, plastic water bottles with bisphenol-A, and the weed killer atrazine in drinking water. Negative reactions reflect responses to ambiguous risks, but policies driven by these concerns may misallocate regulatory resources due to risk conservatism …

Private Governance Response To Climate Change: The Case Of Refrigerants, Michael P. Vandenbergh, Shannon Vreeland, Ted Atwood

Vanderbilt Law School Faculty Publications

Refrigerants are promising targets for private green- house gas (GHG) emissions reduction initiatives. Air conditioning units, fire extinguishers, aerosols, and solvents all contain chemical refrigerants that absorb and release heat. Refrigerants are used to chill food, buildings, and vehicles. Among commercial buildings, office space, health care, food service, and retail sales and service comprise well over 50 percent of all buildings in the United States and contribute a comparable amount of refrigerant emissions. Air Conditioning, Heating, & Refrigeration Insti- tute, AHRI Releases December 2017 U.S. Heating and Cooling Equipment Shipment Data 4 (2017). Certain refrigerants have been identified as ozone …

Framing Of Geoengineering Affects Support For Climate Change Mitigation, Michael P. Vandenbergh, Kaitlin Raimi, Alexander Maki, David Dana

Vanderbilt Law School Faculty Publications

The growing recognition that climate change mitigation alone will be inadequate has led scientists and policymakers to discuss climate geoengineering. An experiment with a US sample found, contrary to previous research, that reading about geoengineering did not reduce conservatives’ skepticism about the existence of anthropogenic climate change. Moreover, depending on how it is framed, geoengineering can reduce support for mitigation among both conservatives and nonconservatives. When geoengineering is framed as a major solution, people worry less about climate change, leading to reduced mitigation support. When framed as disastrous, people perceived geoengineering as riskier, also leading to a decrease in mitigation …

Climate Change Refugees In The Time Of Sinking Islands, Jane Steffens

Vanderbilt Journal of Transnational Law

While environmental migration is not a new phenomenon, the international community has been slow to react to a wildly increasing number of people displaced by climate-related factors. With the current scenario of sinking islands, rapid urbanization, and drought, the international community seems to be on the precipice of a massive humanitarian catastrophe. Even so, lawmakers appear hesitant to fill in the gaps of existing international law, leaving an entire category of people vulnerable and unprotected against the effects of climate change. Private climate-governance initiatives can achieve large-scale, prompt, and efficient solutions to climate-induced migration. While private governance initiatives lack the …

Consumer Perceptions: From Myths To Action, Michael P. Vandenbergh, Kristian Steensen Nielsen

Vanderbilt Law School Faculty Publications

Rapid and transformative changes are required to reduce the adverse consequences of climate change. A growing literature suggests that households can be an important part of efforts to reduce GHG emissions. Transformative change implies modifying actions across different life and consumption domains, but not all actions are equally important. The most promising efforts focus on behaviours with high technical potential (the total emissions reductions possible from the behaviour change) and behavioural plasticity (the extent to which the behaviour can be changed in a given decision environment). Shifting towards a plant-based diet has technical potential that is among the highest of …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and …

Private Governance Responses To Climate Change: The Case Of Global Civil Aviation, Michael P. Vandenbergh, Daniel J. Metzger

Vanderbilt Law School Faculty Publications

This Article explores how private governance can reduce the climate effects of global civil aviation. The civil aviation sector is a major contributor to climate change, accounting for emissions comparable to a top ten emitting country. National and international governmental bodies have taken important steps to address civil aviation, but the measures adopted to date are widely acknowledged to be inadequate. Civil aviation poses particularly difficult challenges for government climate mitigation efforts. Many civil aviation firms operate globally, emissions often occur outside of national boundaries, nations differ on their respective responsibilities, and demand is growing rapidly. Although promising new technologies …

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.

Household And Block Level Influences On Residential Fertilizer Use, Michael P. Vandenbergh, Amanda Carrico, Urooj Raja, James C. Fraser

Vanderbilt Law School Faculty Publications

Urban and suburban lawns make up a large share of land use in the US. Maintaining lawns to fulfill aesthetic norms has environmental consequences. In this analysis, we examine household decisions to apply nitrogen-containing lawn fertilizer. Using survey data of 298 households in Nashville, Tennessee, we first examine the prevalence of fertilizer use and the rate of annual nitrogen applied. We find that the resulting distribution is skewed, with the top 20% of the sample applying 56% of the total share of nitrogen. In contrast to this subset of “intensive” fertilizers, 93% of households applied at or below levels recommended …

Employee Energy Benefits: What Are They And What Effects Do They Have On Employees?, Michael P. Vandenbergh, Alexander Maki, Emmett Mckinney, Mark A. Cohen, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

Employee energy benefits (EEBs), such as subsidies for employee home energy audits and financial incentives for carpooling to work, aim to influence employees’ environmental behaviors outside of work. Exploring these understudied benefits would offer new insights that can enrich theories of employer and employee motivations for engaging in environmental behavior, as well as reveal new strategies for making significant progress on environment goals. By drawing upon employer reports and conducting a survey of 482 US adults employed full-time, we found that there are a wide range of types of EEBs currently offered by employers, and furthermore, they were more likely …

Lessons From Ten Years Of Household Recycling In The United States, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Recycling is perhaps the most prevalent pro-environmental activity at the household level. House-holds undertake recycling on their own initiative, though recycling efforts may be influenced by supportive nudges and, in some cases, laws that mandate recycling behavior. However, unlike pro-environmental efforts such as decreasing household energy usage, the success of the household's intention to recycle also hinges on governmental support. People cannot engage in recycling behavior on their own, as there must be some mechanism for collecting the recycled materials and converting them into useable commodities. The availability and nature of the recycling opportunities affect the household's ability to recycle …

Examining Procedural Justice And Legitimacy In Corporate Offending And Beyond-Compliance Behavior: The Efficacy Of Direct And Indirect Regulatory Interactions, Michael P. Vandenbergh, Melissa Rorie, Sally Simpson, Mark Cohen

Vanderbilt Law School Faculty Publications

The large-scale physical and financial consequences of corporate environmental violations are undeniable. In 2015, for instance, Volkswagen was found to have installed software on some of its diesel models that allo\xed the cars to pass emissions tests while producing up to forty times more emissions than allowed. Aside from the obvious use of deceptive advertising and the financial harm suffered by Volkswagen investors and car owners (Chevs 2015: Greene and Foley 2015: Shah 2015), it has been estimated that these actions will cause sixy premature deaths, thirty-one cases of' chronic bronchitis, and thirty-four other cases of serious cardiac and respiratory …

Dynamic Relationships Between Social Norms And Pro-Environmental Behavior: Evidence From Household Recycling, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Social norms are strongly associated with pro-environmental behaviors, but the evolution and dynamic effects of norms are less well understood. This article builds on the distinction of norms being descriptive, characterizing what people actually do, or injunctive, characterizing what people should do. It identifies four categories of norms with the further distinction of whether the norms arise from the personal beliefs and actions or from the behaviors and judgments of others. The analysis uses five years of longitudinal US data that track household recycling and controls for household characteristics as well as differences in state recycling laws. The results extend …

Prospective Grandfathering: Anticipating The Energy Transition Problem, Christopher Serkin, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Legal change has the potential to disrupt settled expectations and property rights. The Takings Clause provides protection from the most significant costs by requiring compensation following a change in the law, but threats of takings claims can discourage policymakers from adopting sound laws and policies. If specific legal changes can be anticipated far enough in advance, are there tactics available to reduce the risk of takings claims and blunt their political force in the future? We identify innovative tools that preserve regulatory flexibility so that legal changes can avoid takings liability, and we do so specifically in the context of …

In Appreciation Of The Tarlock Effect, J.B. A. Ruhl

Vanderbilt Law School Faculty Publications

So, what is one to do about The Tarlock Effect? It didn't take long for me to realize early in my academic career-well before my foray into climate change adaptation policy-that there's just no escaping it. So I learned to appreciate it. Better yet, take advantage of The Tarlock Effect! My way of doing so is easy: when the next brilliant law review idea pops into my head, I read Dan's CV, knowing he probably has said something meaningful on the theme and hoping not everything worth saying. When I find the inevitable-indeed he has thought of it-I read his …

Water Management On The Brahmaputra And The Applicability Of The Unece Water Convention, Stephanie Biggs

Vanderbilt Journal of Transnational Law

The Brahmaputra River is one of the world's largest transboundary waterways, yet it lacks a coherent, international management framework. The river, which flows from China through India and into Bangladesh, has been subject to decades of stalled negotiations, gamesmanship, and stop-gap oversight measures. As climate change and population growth place new stressors on the Brahmaputra and its riparian states, this arrangement will become untenable. Moreover, obtaining consensus may soon become impossible as the region grows increasingly water scarce. There is a brief window of opportunity to rectify inadequate management of the river and address urgent issues such as environmental protection …

Regulating Geoengineering: Applications Of Gmo Trade And Ocean Dumping Regulation, Elizabeth F. Quinby

Vanderbilt Journal of Transnational Law

Geoengineering--the deliberate, large-scale manipulation of the environment--is being increasingly considered as an emergency solution to curb global warming, as efforts to reduce greenhouse gas emissions have largely proved inadequate. This Note explores one form of proposed geoengineering: solar radiation management, which contemplates spraying reflective particles into the stratosphere to cause a global cooling effect. Geoengineering presents many challenges to regulators because of its potential to cause trans-boundary harm, its relative ease of enactment, and its unknown nature. Current international environmental treaties do not address geoengineering and would likely inadequately regulate it. But premature multilateral geoengineering regulations, if agreed to by …

The Gap-Filling Role Of Private Environmental Governance: A Case Study Of Semiconductor Supply Chain Contracting, Cassie D. Roberts

Vanderbilt Journal of Transnational Law

Three of the principal international agreements that govern various aspects of hazardous substances or wastes are not legally binding on American companies because the US Congress has not passed the requisite implementing legislation. The failure of American companies to meet or exceed the standards set forth in these agreements, although not legally mandated, could be detrimental to American businesses operating on the global stage. The American semiconductor industry responded to this potential disconnect by developing internal firm-specific standards that bind suppliers through supply chain agreements. This Note explores the phenomenon of private standard setting in the semiconductor industry, a prime …

Climate Adaptation Law: Governing Multi-Level Public Goods Across Borders, Maria L. Banda

Vanderbilt Journal of Transnational Law

The increasingly severe and irreversible effects of climate change around the world make adaptation to a changing climate an immediate and urgent global priority, as the Paris Agreement on Climate Change acknowledged. Yet adaptation investment--to make communities and ecosystems more resilient to climate change--has been slow to materialize. Closing the finance gap and rising to the challenge of adaptation requires two conceptual shifts in how we think about adaptation law and governance. The first is that optimal adaptation is a public good, much like a healthy climate or safe streets. Everyone is better off in a resilient community that can …

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

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

Vanderbilt Law School Faculty Publications

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