Environmental Law Commons^™

Taking The Public Out Of Public Lands: Shifts In Coal-Extraction Policies In The Trump Administration, Jessica Owley

Articles

No abstract provided.

Harvey, Irma, And The Nfip: Did The 2017 Hurricane Season Matter To Flood Insurance Reauthorization?, Robin Kundis Craig

Utah Law Faculty Scholarship

The National Flood Insurance Program (NFIP) has become a coastal hurricane insurance program—a fact that is bankrupting it. As a result of climate change, the ocean surrounding the United States is both rising and becoming warmer, and hurricanes and other coastal storms are projected to become both more frequent and more destructive. While no particular hurricane can yet be blamed exclusively on climate change, these projections nevertheless have real implications for the future of the NFIP.

In 2017, Congress was gearing up to reauthorize the NFIP just as the United States entered its worst hurricane season in over a decade. …

Expertise Scientifique Et Lien De Causalité Dans Le Cadre Du Contentieux Climatique: Le Point De Vue De La Doctrine Américaine, Michael Burger

Sabin Center for Climate Change Law

Au cours des dernières années, il y a eu une augmentation remarquable du nombre d’actions judiciaires visant à demander aux Gouvernements et aux acteurs privés de rendre des comptes de leur inaction face aux changements climatiques. La « science de l’attribution » du changement climatique – c’est-à-dire la capacité de détecter les changements environnementaux et de les attribuer à l’augmentation des émissions de gaz à effet de serre – joue un rôle central dans bon nombre de ces actions : elle permet en effet de fonder à la fois l’attribution d’événements extrêmes au changement climatique et d’émissions de gaz à …

Microgrids And Resilience To Climate-Driven Impacts On Public Health, Justin Gundlach

Sabin Center for Climate Change Law

“Resilience” has burst into the lexicons of several policy areas in recent years, owing in no small part to climate change’s amplification of extreme events that severely disrupt the operation of natural, social, and engineered systems. Fostering resilience means anticipating severe disruptions and planning, investing, and designing so that such disruptions, which are certain to occur, are made shallower in depth and shorter in duration. Thus a resilient system or community can continue functioning despite disruptive events, return more swiftly to routine function following disruption, and incorporate new information so as to improve operations in extremis and speed future restorations. …

Climate Change Impacts On The Bulk Power System: Assessing Vulnerabilities And Planning For Resilience, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

As the scale, speed, and implications of climate change come into focus, stakeholders in the electricity sector are finding it increasingly difficult to turn a blind eye. However, many have opted to attend to climate impacts in a piecemeal fashion, often merely responding to particular extreme events – or types of extreme events, such as coastal storms or floods – and failing to consider the larger phenomenon. This is true of the bulk power system (BPS) in regions overseen by Independent System Operators and Regional Transmission Organizations (collectively, ISO/RTOs), none of which have comprehensively assessed their systems’ vulnerabilities to climate …

The Built Environment, Justin Gundlach, Jennier Klein

Sabin Center for Climate Change Law

The built environment, which includes not only buildings but infrastructure, mediates several important climate impacts on public health and is also subject to diverse legal requirements. It is a subject of particular focus for policy efforts aimed at promoting adaptive responses to climate change on the part of institutions and individuals. This chapter presents key examples of public health impacts that arise from climate change but are mediated – possibly mitigated, possibly exacerbated - by elements of the built environment. It also describes the process and substance of adaptive responses to those impacts. Having presented these physical and policy contexts …

Join The Parties: 25+ Ways To Promote Participation In Multilateral Environmental Agreements, Susan Biniaz

Sabin Center for Climate Change Law

Negotiators of multilateral environmental agreements are frequently faced with the challenge of striking the right balance between stringency of commitment and breadth of participation. A perfect agreement on paper, with strong commitments and a robust compliance mechanism, might attract too few Parties (or too few key Parties) to achieve the agreement’s environmental objective. Conversely, broad participation in a weak agreement might also fail to accomplish the agreement’s goals.

This paper focuses on the various ways in which negotiators have worked to encourage participation in multilateral environmental agreements. In some cases, they involve steps taken before and during the negotiation of …

Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil

Scholarly Works

Climate change represents a global commons problem, where individuals, businesses, and nation-states all lack sufficient incentives to reduce their greenhouse gas emissions to levels consistent with meeting their collectively agreed upon mitigation goals. The current "pledge and review" paradigm for global climate change mitigation, which many see as a major breakthrough, relies primarily on moral pressure, reputational incentives, and global public opinion to foster cooperation on mitigation efforts over and above those driven by maximization of narrow conceptions of national interests. Given the scale of the emissions reductions required to meet stated mitigation goals, the substantial economic costs of deep …

Deploying Advanced Metering Infrastructure On The Natural Gas System: Regulatory Challenges And Opportunities, Romany M. Webb

Sabin Center for Climate Change Law

Recent increases in domestic natural gas use have been widely heralded as a vital step in the fight against climate change. Proponents often characterize natural gas as a “clean” fossil fuel, emphasizing that its combustion produces fewer greenhouse gas emissions than coal and oil (per unit of energy produced). Natural gas combustion still emits large amounts of carbon dioxide, however. Natural gas production and transportation also result in emissions, primarily in the form of methane, which is a highly potent greenhouse gas, with approximately eight-four times the climate impacts of carbon dioxide (on a pound-for-pound basis, over a twenty-year time …

The Societal Impacts Of Climate Anomalies During The Past 50,000 Years And Their Implications For Solastalgia And Adaptation To Future Climate Change, Edward P. Richards

Journal Articles

No abstract provided.

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks

Articles

No abstract provided.

Federalism Hedging, Entrenchment, And The Climate Challenge, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national …

Human Rights, Indigenous Peoples, And The Global Climate Crisis, M. Alexander Pearl

Faculty Articles

The global climate crisis is an ongoing event the likes of which we have yet to experience. The science is clear, the phenomenon is traceable, and the effects are far-reaching. But, the consequences of the climate crisis affect particular populations more so than others, and often times the affected populations are voiceless. Among those most impacted are indigenous peoples. Indigenous peoples stand in a unique place in the context of climate change. In general, indigenous peoples have a comprehensive relationship with their place and surroundings, which incorporates culture, livelihood, economy, and a defining sense of self. Land and resources are …

Carrots And Sticks In Private Climate Governance, Jonathan Gilligan

Texas A&M Law Review

When public governance fails to address important environmental threats— such as climate change—private governance by firms, not-for-profits, individuals, and households can produce significant reductions in greenhouse gas emissions. Private governance can take the form of either a carrot or a stick, using incentives or punishments. Shareholder activism as a form of private governance of corporations has largely been confrontational, leading most climate-related actions to fail. This Article examines the potential for private governance to take a more collaborative approach and to frame shareholder engagement with management in terms of opportunity. It also examines private governance successes at reducing household emissions …

Regulatory Carrots And Sticks In Climate Policy: Some Political Economic Observations, Jason S. Johnston

Texas A&M Law Review

This Article sets out an informal political economic theory which explains the relative permanence of regulatory carrots—legislative subsidies and mandates for product use—versus the transience of regulatory sticks—traditional costly regulatory requirements. After setting out the elements of this theory, I illustrate it with the dramatic rise in the Obama Administration and abrupt cessation in the Trump Administration of attempts to use conventional U.S. environmental regulatory sticks to end the U.S. coal industry. The Article turns then to describe a concrete example of a regulatory carrot—the U.S. corn ethanol mandate—that has survived despite overwhelming evidence that its environmental benefits, if any, …

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 …

Climate Change, Corporate Social Responsibility, And The Extractive Industries, Sara Seck

Articles, Book Chapters, & Popular Press

During the negotiation of the Paris Agreement, many argued that the final text should integrate a human rights approach so as to better align climate governance under the UNFCCC with climate justice. Reference to human rights ultimately appeared only in the Preamble, despite submissions from the UN High Commissioner for Human Rights that urgent and ambitious State action to combat climate change is an existing duty of international human rights law. Another submission highlighted the role of businesses as duty-bearers who must contribute to climate mitigation and be accountable for climate impacts. This article will consider an unexplored avenue through …

Shipping And Climate Change: International Law And Policy Considerations, Aldo Chircop, Meinhard Doelle, Ryan Gauvin

Reports & Public Policy Documents

This report investigates the international law and policy challenges to the determination of the international shipping industry's contribution to climate change mitigation efforts through the International Maritime Organization (IMO), a specialized agency of the United Nations and the competent intergovernmental organization with respect to shipping in international law. The report sets out the international legal framework that serves as context for the IMO efforts, the challenge of regulating greenhouse gas emissions from international shipping and the process and issues in determining the industry's 'fair share' of mitigation efforts and potential legal pathways. The report concludes with general, policy and legal …

Changing International Law For A Changing Climate, Daniel C. Esty, Dena P. Adler

Sabin Center for Climate Change Law

After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, …

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

Sabin Center for Climate Change Law

In its first year, the Trump Administration undertook a program of extensive climate change deregulation. The Administration 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 withdrew energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change. However, the Trump Administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.

This paper seeks to …

Turning The Tide In Coastal And Riverine Energy Infrastructure Adaptation: Can An Emerging Wave Of Litigation Advance Preparation For Climate Change?, Dena P. Adler

Sabin Center for Climate Change Law

A new wave of “failure to adapt” lawsuits has sought to clarify how a changing climate may change what reasonable preparations governments and private actors must take, including increasing the resilience of their infrastructure. These suits span constitutional, tort, and statutory law more broadly, but unprepared owners of energy infrastructure may risk additional violations under environmental law due to unpermitted releases of air and water pollution during extreme weather events for which they are not adequately prepared. This piece will specifically consider recent legal and administrative suits that may indicate shifting legal responsibilities for coastal and riverine energy infrastructure owners …

Legal Tools For Cities To Cope With Extreme Heat, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Heat causes more deaths in the U.S. than any other natural hazard – more than floods, hurricanes, or tornadoes. As a result of climate change, it is getting worse. Average annual temperatures are now about 1.8°F higher than they were over the period 1895-2016, they will go up to about 2.5°F by mid-century, and if greenhouse gas emissions continue on the current path, they could rise almost 12°F by 2100, and heat waves that now occur once every 20 years could become annual events, according to the U.S. Global Change Research Program.

L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard

Faculty Scholarship

Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …

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 …

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Vanderbilt Law School Faculty Publications

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the …

Rewired Infrastructure Post-Paris, Steven Ferrey

Suffolk University Law School Faculty Works

The Trump Administration announced in 2017 that it is withdrawing the U.S. from the international Paris Agreement regarding climate change which went into full effect in 2016. More than half the states sued the EPA when it promulgated the Clean Power Plan (CPP) to reduce power sector carbon emissions by 32 percent by 2030; thereafter, the Supreme Court stayed enforcement of the regulation, pending eventual review on the merits. The Trump Administration began efforts to repeal the Obama Administration CPP which was designed to satisfy the U.S. Paris Agreement commitments to curb CO2 emissions from burning coal to generate electric …

International Law And Policy Considerations For Shipping's Contribution To Climate Change Mitigation, Aldo Chircop, Meinhard Doelle, Ryan Gauvin

Reports & Public Policy Documents

This report investigates the international law and policy challenges to the determination of the international shipping industry's contribution to climate change mitigation efforts through the International Maritime Organization (IMO), a specialized agency of the United Nations and the competent intergovernmental organization with respect to shipping in international law. The report sets out the international legal framework that serves as context for the IMO efforts, the challenge of regulating greenhouse gas emissions from international shipping and the process and issues in determining the industry's 'fair share' of mitigation efforts and potential legal pathways. The report concludes with general, policy and legal …

Freshwater Reservoirs: Global Warming’S Best Kept Secret, Beau Baily

Seattle Journal of Environmental Law

Fresh water reservoir construction involves the decomposition of plants that were previously able to absorb greenhouse gas and prevent its release into the atmosphere. With these plants no longer able to absorb greenhouse gas, it is released into the atmosphere, making freshwater reservoirs a source of global warming. Due to an increasing demand for clean energy, countries are planning and constructing dams at unprecedented rates. With dams come reservoirs. While hydroelectric energy is clean energy, the methods used to harness that clean energy create environmental problems that contribute to global warming. Ironically, this hydroelectric boom could do more harm than …

Going Negative: The Next Horizon In Climate Engineering Law, Tracy Hester, Michael B. Gerrard

Faculty Scholarship

As the global community struggles to turn the Paris Agreement’s commitments into meaningful emission reductions and the United States turbulently reverses its climate policies, the potential role of “negative emissions technologies” and other climate engineering approaches is drawing increasingly serious attention. These technologies are engineering on the grandest scale: climate engineering seeks to offset the effects of anthropogenic climate change by either altering the solar radiation reaching the earth’s surface or changing the composition of the atmosphere itself. Specifically, negative emissions technologies would directly remove greenhouse gases (GHGs) from the ambient air and help to remove accumulated atmospheric carbon dioxide …