Environmental Law Commons^™

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 …

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 …

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.

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 …

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 …

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 …

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.

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 …

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 …