Environmental Law Commons^™

The (Next) Big Short And The End Of The Anthropocene, M. Alexander Pearl

Faculty Articles

It is incredibly difficult to imagine an event the likes of which humans have never seen before. That, in and of itself renders the challenge to prepare for such an event even more difficult because there is no frame of reference pushing us to act. How do you prepare to avoid something which has never occurred in the history of human occupation? That is the challenge of climate change. I argue that the Subprime Mortgage Crisis and its aftermath parallel the Climate Crisis in critical ways that should inform our tactics. Of course, there are obvious critical differences as well. …

Counter-Intuitive Climate Forcing: Post Paris Agreement Corporate Incentives, Steven Ferrey

Suffolk University Law School Faculty Works

This article applies a micro-level lens to details of disincentives embodied in the new U.S. tax law effective in 2018, affecting corporate action to address climate change, and applies a macro-level assessment of how corporate action is affecting U.S. realization of its climate change goals and requirements. The article examines and offers several state law options that can substitute as alternative incentives, and an unrelated ‘Opportunity Zone’ provision in the new federal tax law, all of which can provide alternative legal paths.

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 …

Why Central Banks Need To Take Human Rights More Seriously, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society.

This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report …

The Paris Agreement And Global Climate Litigation After The Trump Withdrawal, David Hunter

Scholarly Articles in Law Reviews & Journals

The article addresses the emergence of cases in many countries around the world that are addressing climate change by enforcing, or at least referring to, the Paris Agreement.

U.S. Climate Change Litigation In The Age Of Trump: Year Two, Dena P. Adler

Sabin Center for Climate Change Law

More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge. Nevertheless, climate change is one arena where the Trump Administration’s regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review and other decisionmaking; and hindered adaptation to the impacts of climate …

Determining Climate Responsibility: Government Liability For Hurricane Katrina?, Teresa Chan, Michael Burger, Vincent Colatriano, John Echeverria

Sabin Center for Climate Change Law

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, the Environmental Law Institute hosted an expert panel to explore this ruling and its potential implications for future litigation in a …

Annual Review Of Developments Under Seqra, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation (DEC).

Insurance Coverage In A Climate Changed Canada: How Can Canada Pay For Loss And Damage From Anthropogenic Climate Change?, Eric Dwyer

Dalhousie Journal of Legal Studies

This article looks at the impact of anthropogenic climate change and its associated costs in the Canadian context. It begins by outlining how climate change is predicted to alter the Canadian climate before evaluating how this will affect the insurance industry. It determines that insurers’ response to the unpredictable risks and high costs associated with climate change will lead to significant gaps in coverage. How litigation of major carbon polluters could help cover some of the costs associated with climate change by holding polluters accountable is considered. State-led climate litigation can overcome some of the litigation obstacles identified and it …

Environmental Justice And The Possibilities For Environmental Law, Sarah Krakoff

Publications

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not …

Climate Change As A Concern In Negotiating Mine Development Agreements, Diane Desierto

Journal Articles

This panel was convened at 11:00 a.m., Friday, March 29, 2019, by its moderators, Kabir Duggal of Arnold & Porter LLP and Fr6d6ric Sourgens of Washburn University School of Law, who introduced the panelists: Poupak Bahamin of Norton Rose Fulbright US LLP; Teddy Baldwin of Steptoe & Johnson LLP; Diane Desierto of the University of Notre Dame Keough School of Global Affairs; and Tehtena Mebratu-Tsegaye of the Columbia Center on Sustainable Investment.

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Faculty Scholarship

Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …

Threats To The Brazilian Environment And Environmental Policy, Thomas J. Trebat, Laura Nora, Inga Caldwell

Sabin Center for Climate Change Law

The Columbia Global Centers | Rio de Janeiro, in partnership with the Sabin Center for Climate Change Law at Columbia University and the Brazil-American Institute for Law and Environment at Pace University, organized a Workshop on November 13, 2019 in New York City. The Workshop was convened to discuss and raise awareness of the scope and severity of the environmental crisis in Brazil with a focus on the severe threats to the Amazon.

The consequences of the Bolsonaro government´s environmental actions are serious for Brazil and for the world. That is one of the reasons why the Columbia Global Center …

Changing The National Flood Insurance Program For A Changing Climate, Dena Adler, Michael Burger, Rob Moore, Joel Scata

Sabin Center for Climate Change Law

Congress established the National Flood Insurance Program (NFIP) in 1968 to reduce flood damages nationwide and ease the federal government’s financial burden for providing disaster recovery.1 To achieve this goal, the program was designed to perform three primary functions. First, the program provides federally backed insurance to property owners and renters. Second, the program established minimum requirements for building, land use, and floodplain management practices that local communities must adopt in order for their residents to be eligible to purchase NFIP insurance coverage. Third, the program is responsible for mapping high floodrisk areas. These maps inform local land use decisions …

Corporate Governance For Sustainability, Andrew Johnston, Jeroen Veldman, Robert G. Eccles, Simon Deakin, Jerry Davis, Marie-Laure Djelic, Katharina Pistor, Blanche Segrestin, William M. Gentry, Cynthia A. Williams, David Millon, Paddy Ireland, Beate Sjåfjell, Christopher M. Bruner, Lorraine E. Talbot, Hugh Christopher Willmott, Charlotte Villiers, Carol Liao, Bertrand Valiorgue, Jason Glynos, Todd L. Sayre, Bronwen Morgan, Rick Wartzman, Prem Sikka, Filip Gregor, David Carroll Jacobs, Roger Gill, Roger Brown, Vincenzo Bavoso, Neil Lancastle, Julie Matthaei, Scott Taylor, Ulf Larsson-Olaison, Jay Cullen, Alan J. Dignam, Thomas Wuil Joo, Ciarán O'Kelly, Con Keating, Roman Tomasic, Simon Lilley, Kevin Tennent, Keith Robson, Willy Maley, Iris H-Y Chiu, Ewan Mcgaughey, Chris Rees, Nina Boeger, Adam Leaver, Marc T. Moore, Leen Paape, Alan D. Meyer, Marcello Palazzi, Nitasha Kaul, Juan Felipe Espinosa-Cristia, Timothy Kuhn, David J. Cooper, Susanne Soederberg, Andreas Jansson, Susan Watson, Ofer Sitbon, Joan Loughrey, David Collison, Maureen Mcculloch, Navajyoti Samanta, Daniel J.H. Greenwood, Grahame F. Thompson, Andrew R. Keay, Alessia Contu, Andreas Rühmkorf, Richard Hull, Irene-Marie Esser, Nihel Chabrak

Faculty Scholarship

The current model of corporate governance needs reform. There is mounting evidence that the practices of shareholder primacy drive company directors and executives to adopt the same short time horizon as financial markets. Pressure to meet the demands of the financial markets drives stock buybacks, excessive dividends and a failure to invest in productive capabilities. The result is a ‘tragedy of the horizon’, with corporations and their shareholders failing to consider environmental, social or even their own, long-term, economic sustainability.

With less than a decade left to address the threat of climate change, and with consensus emerging that businesses need …

Regulating In The Face Of A Changing World: Legal Regulation Of Climate Change, Michael B. Gerrard

Faculty Scholarship

Everyone knows that the temperatures have been going up. While tern, peratures bounce around from year to year, when looking at five,year averages, the trend is unmistakable. A well,known adverse effect of these changes is that the Arctic is warming; the extent of Arctic sea ice declin, ing had dipped to a record low in 2015. A decreased level of sea ice has led to the rise of sea levels, which have increased at an accelerated pace. There are a number of projections about what the future pace of sea level rise will be, but most scientists believe it most …

New Climate Law Will Reshape Ny’S Key Sectors, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Deep changes in the way electricity is generated, people and goods move around, and buildings are erected and renovated in New York will be required by the Climate Leadership and Community Protection Act (CLCPA), which both houses of the state Legislature have passed and Governor Andrew Cuomo has promised to sign.

The Improvement Of Agrarian Legislation In A Changing Climate (By The Example Of Uzbekistan), N.K. Skripnikov, R. Kenjaev

Review of law sciences

Emphasizing the urgency of the problems associated with climate change, the authors provide the definitions of the concepts “weather” and “climate”, reveal the features of climate change for agricultural production, show both negative and positive potential consequences in this area of relations using international legal acts and analysis of the legislation of the Republic of Uzbekistan, it is proposed to make appropriate amendments to the existing agrarian and natural resource legislation in order to adapt and risk mitigation

Tribal Tools & Legal Levers For Halting Fossil Fuel Transport & Exports Through The Pacific Northwest, Mary Christina Wood

American Indian Law Journal

As alarming scientific predictions crystallize into the realities of today’s climate crisis, tribal communities in the Pacific Northwest find themselves on the front lines of a global assault launched by the fossil fuel industry. Encouraged by President Trump’s declaration of intent to unleash $50 trillion of America’s domestic fossil fuels, corporations push for massive expansion of the nation’s fossil fuel infrastructure—even as the world races towards irrevocable climate thresholds. The unprecedented onslaught hinges on the Pacific Northwest as a key link in a global market scheme. The coastal region sits as a proposed industrial gateway for huge export facilities transporting …

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 …

A Gap In Causation? Punishing Polluters For Contributing To Climate Change & Increasing Violent Crime, Nicolette Pellegrino

Pace Environmental Law Review

Climate change will lead to an increase in violent crime. More rapes and violent felonies occur during the warm summer months than in cooler temperatures. As climate change progresses, there will be longer summers, higher temperatures, and thus, more violent crime. This Note examines whether American sanctions of environmental crimes that contribute to climate change should become more stringent given what we now know about the violent consequences of climate change. Part II of this Note describes the history and scientific evidence which proves that rising temperatures increase the rate of violent crimes. Part III reviews current regulations that deal …

The Carbon Tax Vacuum And The Debate About Climate Change Impacts: Emission Taxation Of Commodity Crop Production In Food System Regulation, Gabriela Steier

Pace Environmental Law Review

The scientific consensus on climate change is far ahead of U.S. policy on point. In fact, the U.S. has a legal vacuum of carbon taxation while climate change continues to impact the codependence of agriculture and the environment. As this Article shows, carbon taxes follow the polluter-pays model, levying taxes on the highest greenhouse gas (“GHG”) emissions—and contributions to climate change. But this is not only unsustainable; it would also undermine agricultural production and, thus, food security. This Article describes how the law can regulate climate change contributions and promote adaptation and mitigation supported through carbon taxes in the agricultural …

President Trump’S Unilateral Attempt To Cease All Implementation Of The Paris Agreement And To Withdraw From It: Constitutional?, Phillip M. Kannan

Pace Environmental Law Review

In his announcement, President Trump stated that he would comply with the withdrawal provision in the Paris Agreement. This Essay argues that, while compliance with that process may satisfy the treaty obligation, it probably does not conform to U.S. constitutional standards, and therefore, would not be binding on the United States. The argument demonstrating the failure of the President to satisfy constitutional standards proceeds as follows. Part I develops the context in which the Paris Agreement arose. Part II briefly summarizes the Paris Agreement. In Part III, I argue that President Trump’s attempt to cease implementation of the Paris Agreement …

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

Arkansas Law Review

The topic of this symposium, “Environmental Sustainability and Private Governance,” is important and timely. 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 other subnational government responses are increasingly important, but the limited geographic reach of subnational governments constrains their ability to address many environmental problems. For instance, although twenty states have set …

1-Click Energy: Managing Corporate Demand For Clean Power, Gina S. Warren

Maryland Law Review

Globally, more private businesses, especially Fortune 100 companies are generating their own electricity, investing in renewable energy facilities, and voluntarily purchasing renewable energy credits to cover their carbon footprints. This shift could have a significant impact on the existing energy delivery system. On the one hand, this shift shows positive momentum toward the incorporation of clean energy into a fossil fuel dominated grid. As the negative impacts of climate change accelerate around the globe, decreasing reliance on fossil fuels is certainly an important goal. On the other hand, corporate disruption of what has historically been a highly regulated public service …

Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

We face a critical environmental crisis. Humanity consumes unsustainably; we use resources at a rate fifty percent faster than they are reproduced by the planet. The population is growing exponentially and climate change, the most important challenge of this century, is already wreaking havoc around the world. Despite numerous existing international environmental treaties, the Earth, and, therefore, human safety and prosperity, is in peril. According to a recent study by scientists from Stanford University and the National Autonomous University of Mexico, the ongoing “sixth mass extinction” threatens to cause an “assault on the foundations of human civilization.” In November 2017, …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Challenges And Opportunities Of A Forthcoming Strategic Assessment Of The Implications Of International Climate Change Mitigation Commitments For Individual Undertakings In Canada, Robert B. Gibson, Karine Péloffy, Meinhard Doelle

Articles, Book Chapters, & Popular Press

Canada is preparing to initiate a challenging, but potentially ground-breaking, strategic assessment on the implications of its climate change mitigation commitments for project assessments. The strategic assessment is immediately needed to provide project-level guidance for decision makers who will be required under new federal legislation to consider the extent to which each assessed project “contributes to sustainability” and “hinders or contributes to” meeting Canada’s climate commitments. However, Canada, like many other countries, has not yet translated its Paris Agreementclimate commitments into an adequate suite of specific policies, pathways, budgets, and other directives for compliance. Consequently, the climate commitments’ strategic assessment …

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …