Environmental Law Commons^™

Poor Esg: Regressive Effects Of Climate Stewardship, Zohar Goshen, Assaf Hamdani, Alex Raskolnikov

Faculty Scholarship

The rise of inequality and global warming are the two ultimate challenges of our time. After decades of congressional failure to address climate change, the private sector has stepped in and adopted a set of environmental, social, and governance (ESG) policies as a market-based solution to a public policy failure. ESG advocates hope that corporate executives would save our planet. Where Congress failed, ESG will succeed.

This Article argues that if ESG-driven climate stewardship ever achieves the scale necessary to have a real impact on global warming, it will hurt the poor. Legislative interventions to combat climate change are nearly …

Cobalt's Climate Paradox: Global Ambitions For A Greener Future Rely On Blood-Stained Hands, Ashleigh Wootton

Natural Resources Journal

The global effort to mitigate climate change increasingly relies on widespread electrification, with lithium-ion batteries at its core and the key minerals required for their production concentrated in countries uniquely vulnerable to exploitation. Lithium-ion battery production relies heavily on cobalt, a critical mineral primarily sourced from the Democratic Republic of the Congo (DRC), which supplies approximately 70 percent of the world’s cobalt. As demand for cobalt is projected to rise sharply, the DRC has become indispensable to the global clean energy transition. Cobalt extraction in the DRC is closely linked to severe human rights abuses, including forced labor, child labor, …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

The Role Of Private Liability In The Fight Against Climate Change, Matthew Salavitch

Pace Environmental Law Review

Parties have increasingly turned to courts both to seek redress for current climate-related harms and to compel states and private actors to reduce their future GHG emissions. As a result, courts around the world have been faced with the task of defining the proper role of the judiciary in fighting climate change. In the United States, however, many courts have had difficulty defining the judiciary’s proper role in providing redress for climate-related harms, especially in relation to comprehensive federal regulation of air pollution under the Clean Air Act (CAA). Considering the uncertainty surrounding the preemptive effect of the CAA on …

Into The Legal “Twilight Zone”: State Tenth Amendment Jurisdiction Displacing Climate Supremacy, Steven Ferrey

Lewis & Clark Law Review

The Supremacy Clause of the Constitution notwithstanding, western states have utilized their reserved Tenth Amendment Constitutional authority, upheld by federal circuit courts, arbitrarily to block their adjacent states’ sustainable infrastructure to address climate change. The Biden Administration set in motion a rapid electrification of the entire U.S. economy via three different new laws enacted sequentially in 2021, 2022, and 2023. A re-directed federal executive branch now oversees these programs and laws. This Article analyzes how each of those three laws suffers from a critical omission plaguing this most significant infrastructure program in the last half century—now forecast counter-intuitively by some …

Natural Resources In The Arctic: The Equal Distribution Of Uneven Resrouces, Ganeswar Matcha, Sudarsanan Sivakumar

Sustainable Development Law & Policy

This paper analyses the governance machine in place at the Arctic and examines the application of the principles of “common heritage of mankind” at the Arctic. This paper also offers some tentative propositions aimed at protecting Out Bound investment rights and how the World Trade Organization or other countries, like the U.S., can intercede in the Arctic investment sphere and attempt to regulate along with the United Nations Convention for the Law of the Sea.

The Underwater: Using Art To Engage Communities Around Climate Action, Xavier Cortada

University of Miami Law Review

This Article delves into the intersection of art and environmental activism, with a focus on the impact of climate change. Cortada, both an artist and trained attorney, re-counts his three-decade journey leveraging art to inspire community engagement and address social and environmental challenges. He explains how Antarctic researchers made him aware of South Florida's vulnerability to sea level rise, leading to the development of interactive art projects that foster civic engagement and climate advocacy. The Article also addresses the challenges posed by climate denial and misinformation, emphasizing the need for creative strategies to combat these issues.

Cortada introduces specific participatory …

Energy Justice And Renewable Rikers, Rebecca Bratspies

University of Miami Law Review

Unsustainable energy practices generate the lion’s share of global carbon emissions as well as staggering levels of deadly particulate pollution. Replacing the current dirty, fossil fuel-based system with affordable, clean energy is both a human rights imperative and a climate change necessity. This transition, which has already begun, creates the opportunity to do things differently. By confronting the structural racism embedded in existing energy structures, we can build a just transition rather than just a transition. This Article uses New York City’s Renewable Rikers project as a case study to explore how we might take advantage of the intersections between …

Developments At The United Nations International Law Commission On Sea-Level Rise, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

Sea-level rise is a pressing global challenge that could generate catastrophic consequences for humankind. The implications for States and people all over the world are grave, making rising sea-levels a matter of utmost urgency. This paper will examine some of the challenges presented by the phenomenon of sea-level rise in relation to international law with a focus on the analysis undertaken by the Study Group on Sea-Level Rise (“Study Group”) of the United Nations International Law Commission (“ILC”).

The Great Climate Migration: A Critique Of Global Legal Standards Of Climate-Change Caused Harm, Mariah Stephens

Sustainable Development Law & Policy

Approximately 2.4 billion people, or about forty percent of the global population, live within sixty miles (one hundred kilometers) of a coastline. The United Nations (“U.N.”) determined that “a sea level rise of half a meter could displace 1.2 million people from low-lying islands in the Caribbean Sea and the Indian and Pacific Oceans, with that number almost doubling if the sea level rises by two metres.” The U.N. also reports that “sudden weather-related hazards” have internally displaced an annual average of 21.5 million people since 2008. Within the next few decades, this number is likely to continue to increase. …

The Constitutionality Of Contributing To Climate Change, Madeline Troxell

Brigham Young University Prelaw Review

Despite the issue of human-caused climate change being upheld by science for decades, topics of its legitimacy, relevance, and repercussions are still debated heavily today. In an attempt to argue for their constitutional right to a safe and livable climate, 21 young plaintiffs have sued the federal government for its affirmative action increasing America’s dependency on fossil fuels, thus exacerbating the climate crisis. The obstacles facing their case can be reduced to an argument concerning the courts jurisdiction over climate issues. This article will argue that the plaintiff's case is centered around the civil rights of children, and thus the …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann

Faculty Scholarship

Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.

In the absence of a meaningful price on carbon, three private ordering initiatives are trying to …

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

The Public Trust Doctrine And The Climate Crisis: Panacea Or Platitude?, Joseph Regalia

Michigan Journal of Environmental & Administrative Law

Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the …

Climate Change Has Beef With Federal Cattle Grazing, John David Janicek

Washington Journal of Environmental Law & Policy

Increased emissions of greenhouse gases are causing the Earth􏰂s climate to change producing extreme temperatures and dangerous conditions for mankind. Livestock is positioned at a unique juncture of the current and future fight against atmospheric temperature rise. These animals produce the very nutrients a growing world population needs to survive, and the meat they yield plays an important role in all world cultures. Unfortunately, the production of livestock is considered one of the most significant emitters of greenhouse gases, of which cattle is the largest contributor. Therefore, a balance must be struck between livestock production and preservation of the Earth. …

Environmental Protection, The Military, And Preserving The Balance: “Why It Matters, In War And Peace”, Kurt Smith

Seattle Journal of Technology, Environmental, & Innovation Law

International military operations around the world are major actors on the world stage of global pollution. The United States military remains subject to federal, state, and local environmental laws. However, many exemptions exist to assist the military despite its status as a global polluter. Many environmental policies have incrementally developed over the last one-hundred years largely as a reaction to the most extreme circumstances. Scientific knowledge continues to increase our awareness of the lasting impacts of policy decisions relating to the environment, giving rise to the precautionary principle, that notion that we should do no lasting harm, in our care …

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 …

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Arkansas Law Review

"For an intended injury the law is astute to discover even very remote causation." - Justice Thurgood Marshall

ExxonMobil, the world's largest oil company, misled the public about climate change for at least two decades. Several states' attorneys general have opened investigations into the potential criminality of the company's conduct. The Securities and Exchange Commission (SEC) has opened its own investigation. Criminal or not, however, ExxonMobil's conduct closely resembles schemes carried out by the tobacco, asbestos, opioid, sugar, and leaded gasoline industries, among others. The scheme is always the same: there is a product that is both profitable and destructive, …

Water Law And Climate Change In The United States: A Review Of The Scholarship, Robin Kundis Craig

Utah Law Faculty Scholarship

Climate change’s effects on water resources have been some of the first realities of ecological change in the Anthropocene, forcing climate change adaptation efforts even as the international community seeks to mitigate climate change. Water law has thus become one vehicle of climate change adaptation. Research into the intersections between climate change and water law in the United States must contend with the facts that: (1) climate change affects different parts of this large country differently; and (2) United States water law is itself a complicated subject, with each state having its own laws for surface water and groundwater and …

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …

Improving Justice And Avoiding Colonization In Managing Climate Change Related Disasters: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph

American Indian Law Journal

No abstract provided.

Juliana V. United States, Daniel Brister

Public Land & Resources Law Review

In 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the …

State-Level Legislation To Address Global Warming: A Recommendation That Washington Join The Cap And Trade Movement, Monique Saysana

Seattle Journal of Environmental Law

This article discusses climate change and the impacts of fossil fuels. In doing so, two approaches are outlined to deal with fossil fuels in Washington: a gas tax and a cap and trade system. There are pros and cons of both systems and a review of recent legislation in Washington. This author recommends a cap and trade system for Washington State.

지구온난화에 따른 국제해사기구 Polar Code 발효와 향후의 과제 [Translation: The Effectuation Of The Imo’S Polar Code And Its Remaining Issues To Tackle In The Age Of The Global Warming], Jinho Yoo

Articles, Book Chapters, & Popular Press

No abstract provided.

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.

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

University of Arkansas at Little Rock Law Review

No abstract provided.

Polar Opposites: Assessing The State Of Enviromental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival

Faculty Scholarship

No abstract provided.

Climate Change Disinformation, Citizen Competence, And The First Amendment, James Weinstein

University of Colorado Law Review

No abstract provided.

The Second Element, First Priority, Steven Ferrey

Suffolk University Law School Faculty Works

Leaders have knowingly made a significant miscalculation in basic math, which is pushing world climate policies to the “tipping points . . . that will alter regional and global environmental balances. . . irreversible within the time span of our current civilization.” Climate policy focuses primarily on only one warming chemical, carbon dioxide (CO2), the most prevalent greenhouse gas (GHG). The second most important warming chemical has been miscalculated and underestimated in its causative impact on climate, not by a few percent or by a rounding error, but by several hundred percent.

This article re-examines the science of climate warming …