Environmental Policy Commons^™

Of Climate Justice And Magical Realism, Sonya Ziaja

Michigan Law Review

A review of Climate Justice: What Rich Nations Owe the World—and the Future. By Cass R. Sunstein.

The Energy And Environmental Footprint Of Ai, Michael P. Vandenbergh, Ethan I. Thorpe, Jonathan M. Gilligan

Michigan Journal of Environmental & Administrative Law

Artificial intelligence (AI) has the potential to create major economic and social benefits, but also to rapidly escalate electricity demand and its associated environmental impacts. Information availability has been a cornerstone of environmental law for half a century, and this Article argues that providing information to individual, corporate, and other users about the electricity demand and environmental impacts of AI can reduce those impacts without delaying development of the technology. Little is known about how different large language models (LLMs) compare on these metrics, though. To address whether users have access to the information necessary to address this shortcoming, the …

State Climate Superfunds, Rachel Rothschild

Articles

The harmful effects of climate change have already arrived in cities and states across America, with disasters increasing markedly in recent years along with more gradual environmental changes like sea-level rise and drought. To protect populations and natural resources, significant funding will be necessary for preventative measures as well as disaster response.

At present, it is states and ordinary taxpayers who must shoulder the enormous costs and planning for climate adaptation. A number of state legislators, however, have recently proposed enacting new laws that would require the companies who have most profited from fossil fuel usage to assist in funding …

Realizing Nepa’S Reasonable, Productive, And Enjoyable Harmony: The Fiscal Responsibility Act’S Amendments And Implications For Practitioners, L. Sheldon Clark, Catherine E. Kanatas, Maxwell C. Smith

Michigan Journal of Environmental & Administrative Law

The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a …

Supreme Court Gives States The Green Light To Go Ham: The Dormant Commerce Clause In Renewable Energy In Light Of National Pork Producers, Ellie Carl

Michigan Journal of Environmental & Administrative Law

Two years ago, the Supreme Court slaughtered the Dormant Commerce Clause in its decision in National Pork Producers v. Ross. While the case is not explicitly about environmental law, it significantly affects environmental laws and policies, especially pertaining to state renewable portfolio standards. These state policies are especially prone to Dormant Commerce Clause litigation, given the interstate nature of electric grids. This paper argues that the scope of the Dormant Commerce Clause in light of this decision is appropriate for ensuring that states have adequate wiggle room in renewable energy regulation, but not an excessive amount of leeway so …

The Law Of Energy Abundance, Alexandra B. Klass, Matthew Appel

Articles

For the first time in decades, electricity demand in the United States is increasing due to the growth of data centers to power artificial intelligence, new manufacturing hubs, and transportation electrification. At the same time, coalfired power plants have been closing in response to competition from lower cost natural gas and renewable energy. Clean energy is being rapidly deployed to replace fossil fuels but not quickly enough to address concerns about demand growth and grid reliability. Accordingly, there is a growing imbalance between electricity supply and demand in many regions of the country that threatens to increase electricity prices and …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Repurposed Energy, Alexandra B. Klass, Hannah Wiseman

Articles

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Environmentalism And Antitrust, Albert H. Choi, Daniel A. Crane

Law & Economics Working Papers

In recent years, there has been a proliferation of interest concerning environmental issues and the application of the antitrust laws. Numerous commentators, for instance, have argued that the antitrust enforcement should adjust to reflect the environmental harm (or benefit) that is generated from a competitive condition. In this paper, we take a step back and argue that analysis of the intersection between antitrust and environmentalism should begin with more mundane questions of economics. More specifically, we argue that environmental regulations can inform antitrust analysis by considering (at least) three issues: (1) the impact of environmental regulation on the firms' production …

The Misleading Successes Of Cost-Benefit Analysis In Environmental Policy, David E. Adelman, Amy Sinden

Michigan Journal of Environmental & Administrative Law

This Article critically examines the rise of cost-benefit analysis (CBA) in environmental policy and the profound disconnect that has persisted between the actual practice of CBA and its normative grounding. Although CBA is now synonymous with rational decision-making in federal agencies, this has not always been the case. Views about CBA have evolved from bipartisan rejection in the 1970s, to partisan division (Republicans for, Democrats against) during the Reagan-Bush years, to a broad embrace of CBA in the mid-1990s, when centrist legal scholars were instrumental in crafting a new defense of CBA based on a mix of welfare economics and …

The Clean Water Act’S Nurdle-Shaped Gap: Using The Cwa To Address Primary Microplastic Pollution, Taylor Hopkins

Michigan Journal of Environmental & Administrative Law

The term “nurdles” may sound like a silly made-up word lifted from the pages of a children’s book, but unfortunately nurdles are all-too real, with trillions of these microplastics ending up in our oceans each year. Nurdles spill into the environment at every step along their supply chain, allowing them to end up in fish and on our plates. Despite the known danger nurdles pose to both wildlife and humans, they are virtually unregulated. In the absence of regulation by the Environmental Protection Agency (EPA), some states and their citizens have begun trying to wrangle rogue nurdles, and hold nurdle …

The Particle Problem: Using Rcra Citizen Suits To Fill Gaps In The Clean Air Act, Kurt Wohlers

Michigan Law Review

While the Clean Air Act has done a substantial amount for the environment and the health of individuals in the United States, there is still much to be done. For all its complexity, the Act has perpetuated systemic inequities and allowed harms to fall more heavily on low-income communities and communities of color. This is no less true for particulate matter pollution, which is becoming worse by the year and is a significant cause of illness and premature death. This Note argues that particulate pollution, traditionally only regulated on the federal level within the ambit of the Clean Air Act, …

Environmental Governance By Contract: The Growing Role Of Supply Chain Contracting, Michael P. Vandenburgh, Patricia A. Moore

Michigan Journal of Environmental & Administrative Law

Corporate net zero climate commitments and environmental, social, and governance (ESG) policies have the potential to bypass barriers to international, national, and subnational government action on climate change and other environmental issues. This Article presents the results of a new empirical study that demonstrates the remarkably widespread use of environmental supply chain contracting requirements. The study finds that roughly 80% of the ten largest firms in seven global sectors include environmental requirements in supply chain contracting, a substantial increase over the 50% reported by a comparable study fifteen years ago. The Article concludes that the prevalence of environmental supply chain …

Whither Rationality?, Shi-Ling Hsu

Michigan Law Review

A Review of Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. By Michael A. Livermore and Richard L. Revesz.

Evaluating Project Need For Natural Gas Pipelines In An Age Of Climate Change, Alexandra B. Klass

Law & Economics Working Papers

As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates …

The Energy Transition And Mining: Reconciling The Growth Of Renewable Energy With The Need For New Mineral Development, Alexandra B. Klass, Allison J. Mitchell

Articles

Under the Paris Agreement, the global governmental signatories embraced the goal to hold global average temperature increase to “well below 2°C above pre-industrial levels” while “pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” Almost every country in the world signed on to the Paris Agreement, adopting the prevailing science that anthropocentric greenhouse gas emissions would result in rising global temperatures and catastrophic damages from climate change in the absence of immediate action. In pursuit of this goal, the signatories agreed that all member countries would work together to bring greenhouse gas emissions to zero within the …

Montreal Protocol, Howard J. Bromberg, Mark S. Coyne, W. J. Maunder

Book Chapters

DATE: Signed September 16, 1987; took effect January 1, 1989; amended 1990, 1992, 1995, 1997, and 1999

The Montreal Protocol was created to help preserve the Earth’s ozone layer by severely limiting the production and use of chlorofluorocarbons (CFCs ) and other halogenated compounds.

Hemp Fiber, Howard J. Bromberg, Ming Y. Zheng

Book Chapters

Hemp, Cannabis sativa, is indigenous to temperate regions in Asia. All major industrialized countries but the United States cultivate hemp for its fibers and oil-rich seeds. The former Soviet Union was the world's leading producer until the 1980s. As of 2018, China was the largest producer, with other significant industries in Ukraine, Russia, China, Canada, Austria, Australia, Great Britain, Hungary, Romania, Poland, France, Italy, and Spain.

Cannabis was initially spread around the world because of its fiber, not its intoxicant chemicals or its nutritious oil seeds. It is one of the oldest sources of textile fiber, whose use for cloth …

Trump, Donald: Environmental Policy Of,, Howard J. Bromberg

Book Chapters

Businessman and US. president Donald John Trump was born in Queens, New York, to Frederick (Fred) Trump and Mary MacLeod. Fred Trump, a real estate developer, brought Donald into the family real estate business. Through his business operations, Trump became a billionaire. Donald also became a television celebrity with the reality show The Apprentice. In one of the most unpredictable elections in American history, Trump became the 45th president of the United States. His administration aggressively promoted development of oil, gas, mineral, and coal resources. In doing so, he revoked numerous environmental protections.

Environmental Law In The United States, Howard J. Bromberg, Joshua I. Barrett

Book Chapters

Environmental law in the United States comprises a complex patchwork of federal, state, and local statutes and regulations, along with the traditions of common law. Most statutory environmental programs emerged in the second half of the twentieth century. In the 1960s, writings such as Rachel Carson's Silent Spring (1962) fueled environmental awareness in the United States; the first Earth Day, celebrated on April 22, 1970, symbolized the birth of vironmental law entered a new era in 1970, when President Richard Nixon created the Environmental Protection Agency and the U.S. Congress passed the National Environmental Policy Act and the 1970 Clean …

Green Politics In China: Environmental Governance And State-Society Relations, Joy Y. Zhang, Michael S. Barr

Books

Based on interviews with members of grassroots organisations, media and government institutions, Green Politics in China is an in-depth account of the novel ways Chinese society is responding to its environmental crisis, using examples rarely captured in Western media or academia.

The struggle for clean air, low-carbon conspiracy theories, is transforming Chinese society, producing new forms of public fund raising and the encouraging the international tactics of grassroots NGOs. In doing so, they challenge static understandings of state-society relations in China, providing a crucial insight into the way in which China is changing internally and emerging as a powerful player …

On Integrated Pollution Control, James E. Krier

Articles

Integrated pollution control, or IPC, can be defined for now as an approach to environmental regulation that "seeks particularly to link air, water, and waste programs. Its concern is institutional changes that reduce total risk to the environment from pollutants." 8 This sounds remarkably appealing, which perhaps explains IPC's recurring popularity. As we shall see, it enjoyed a brief celebrity about twenty years ago, and it is once again in vogue-especially within the U.S. Environmental Protection Agency (EPA).

Is the Agency's recent interest in IPC a good thing? We worry that it is not. First of all, IPC has an …

Environmental Regulation And The Constitution, James E. Krier

Book Chapters

Indirectly, at least, the Constitution provides the federal government with power to regulate on behalf of environ-mental quality, but it also sets limits on the power. It sets limits, likewise, on the regulatory power of the states. What it does not do, at present, is grant the ‘‘constitutional right to a clean environment’’ so avidly sought in the hey-day of environmental concern, the decade of the 1970s. Thus, the one unique aspect of the general topic consid-ered here has no doctrinal standing; the remaining aspects are matters of doctrine, but they are not unique to envi-ronmental regulation. It is quite …