Archive


Augusta Wilson – Despite the strong consensus in the scientific community that anthropogenic climate change requires urgent attention, neither the United States nor Canada has implemented a comprehensive national policy to reduce greenhouse gas emissions.  Into this void have stepped two regional cap-and-trade programs that regulate greenhouse gas emissions in parts of both countries.  One, the Regional Greenhouse Gas Initiative (“RGGI”), is a partnership of nine states in the northeastern and mid-Atlantic U.S.  The other, the Western Climate Initiative (the “WCI”), is a partnership between California and the Provinces of Québec and Ontario.   Both programs have been operating for several years, demonstrating that cap-and-trade programs can achieve cost- effective emissions reductions.   Nonetheless, both markets have faced difficulties at various points, including volatility of allowance prices and the withdrawal of partner jurisdictions. One often-cited mechanism for improving the functioning of cap-and-trade markets is to link them with other markets.  In this […]

Linking Across Borders: Opportunities and Obstacles for a Joint Regional Greenhouse Gas Initiative-Western Climate Initiative ...


Justin Gundlach – This Article assumes that the federal government will assign a price to carbon dioxide emissions via legislation by the early 2020s for one or more of myriad reasons.  This Article’s purpose, however, is not to substantiate that assumption, but to explore a particular aspect of the adoption of such legislation.  The contents of that legislation will reflect negotiated agreements—built on various political tradeoffs—over a host of policy issues, ranging from taxes to energy efficiency standards.  These tradeoffs would implicate not only the tax’s scope and rate, but also the policies with which the tax would interact.  This Article describes interactions between a carbon tax and various existing and proposed policies relating to climate change, energy, and environmental protection.  It proceeds in five parts: Part II highlights three key points of background; Part III summarizes the universe of policies that can be expected to interact with a carbon […]

To Negotiate a Carbon Tax: A Rough Map of Interactions, Tradeoffs, and Risks


Sean M. Kammer & Sarah E. Christopherson –   It has been over half a century since Kenneth Boulding introduced the metaphor of the Earth as a “spaceship.” In his compelling analogy he argued that, due to increasing human demands, the Earth was becoming more like a spaceship carrying limited supplies (and limited capacity to receive pollution) than an open prairie spreading endlessly to the horizon.  In what he called the “cowboy economy,” “consumption is regarded as a good thing and production likewise,” with the economy’s success being measured solely “by the amount of the throughput from the ‘factors of production.’”  Boulding pointed out that a portion of this throughput is necessarily “extracted from the reservoirs of raw materials and noneconomic objects” and that another part consists of “output into the reservoirs of pollution.”  In the “spaceman economy,” in contrast, “throughput is by no means a desideratum, and is indeed […]

Reserving a Place for Nature on Spaceship Earth: Rethinking the Role of Conservation Easements



Gwendolyn J. Gordon – Parks are people too, my friend.  So quipped an August 2016 headline making reference at once to Mitt Romney’s flip commentary on corporations and to recent developments in New Zealand law enabling landscapes to be named as legal persons—that is, as entities possessing juridical rights akin to those of corporations.  In the wake of this and other developments of the concept, legal personhood has struck observers as a promising tool for protecting nature—an idea overdue given the now seemingly unexceptional nature of corporate personhood in protecting corporate rights.  Far from being the settled, stolid doctrine that its long tenure might have it appear to be, however, corporate personhood is quicksilver; it seems an endlessly adaptable concept.  How might we come to understand the environment as a similarly flexible rights-holder in a way that is robustly protective of environmental interests?  This Article argues that, as an example […]

Environmental Personhood


Emily Hush – It is no secret that the planet is warming and that humans have had something to do with it.  Over the last one hundred and fifty years, the global average concentration of carbon dioxide in the Earth’s atmosphere has increased to unprecedented levels and continues to rise.  As the climate becomes warmer, the world will face ocean acidification, sea level rise, decreasing biodiversity, and more extreme weather events. At the end of the twentieth century, many nations recognized that climate change is a global phenomenon requiring cooperative action, and began to seek international solutions to prevent disastrous warming and to mitigate unavoidable impacts.  Sustainable development is central to this international response to climate change.  International agreements like the United Nations Framework on Climate Change and the Paris Agreement are indispensable to furthering sustainable development worldwide.  However, the complexity of such large multilateral agreements presents a barrier to […]

Where No Man Has Gone Before: The Future of Sustainable Development in the Comprehensive Economic ...


Alessandra Mistura – The publication of a Policy Paper on Case Selection and Prioritization (the “Policy Paper”) by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in September 2016 has reignited the longstanding discussion about the status of environmental crimes under international law.  The Policy Paper expressed the intention of the OTP to consider, in the selection of crimes to be submitted to the jurisdiction of the ICC, those committed through, or resulting in, “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”  Such wording soon gained widespread attention, prompting many news outlets to declare that, from now on, the ICC would focus on prosecuting “environmental crimes.”  The news sources’ enthusiasm, however, appears misplaced for several reasons. The first and foremost objection comes from a consideration of the ICC’s limited jurisdiction.  In fact, this is strictly confined by […]

Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office ...



Reed D. Benson – The Army Corps of Engineers and the Bureau of Reclamation spent much of the twentieth century building large dams that dramatically altered the nation’s rivers.  The “big dam era” of federal water policy may have ended decades ago, but the dams that went up in that era are still in place today.  These dams form reservoirs that provide a range of benefits including water supply, flood control, and hydropower, and whatever the arguments in favor of taking out some specific ones, few if any major federal dams will be removed anytime soon.  Yet each existing dam faces an important question about its future: should it be operated differently than it is now? Every reservoir stores and releases water to serve specific purposes, and an operating plan directs the timing and rate of storage and releases from a particular reservoir.  Many federal water projects—dams, reservoirs and associated […]

Reviewing Reservoir Operations: Can Federal Water Projects Adapt to Change?


Joshua Ulan Galperin – Pragmatism is a robust philosophy, vernacular hand-waving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism.  While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism—that which, in the spirit of the twenty-first century’s 140-character limit, I will call “pragtivism.”  This Article is an introduction to pragtivism—environmental pragtivism in particular—a critique of the practice, and a constructive framework for addressing some of my critiques. As a central principle of their philosophy, pragmatists reject absolutes.  Pragtivists, likewise, reject perfect environmental outcomes in deference to those that are, at least arguably, directionally correct.  The idea of engaging private business is a more applied, but equally important principle.  Pragmatists advocate that decisions are good if they work, if they are based on lessons from experience.  Pragtivists believe that […]

Trust Me, I’m a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism


Carrie A. Scrufari, Esq. – While agriculture is a main contributor to climate change, it can also be part of the solution if we can capitalize on agriculture’s mitigation potential.  For example, agriculture can assist with removing carbon dioxide from the atmosphere via carbon sinks—a process called soil carbon sequestration.  Through photosynthesis, plants assimilate carbon and return some of it to the atmosphere through respiration, but the remaining carbon resides in plant tissue and returns to the soil when the plants die.  Experts have recognized that building the capacity of soils to continue storing carbon (through the use of cover cropping, crop rotation, and other organic practices) can be an important ally in battling climate change.  Soil sequestration could substantially relieve our atmospheric impact, with some estimates predicting that soils have the capacity to mitigate climate change by matching anthropogenic emissions at an equal rate for the next forty years.  […]

Tackling the Tenure Problem: Promoting Land Access for New Farmers as Part of ...



William Bolgiano – “Community solar,” a method for financing local solar energy projects, has recently gained a foothold in many states.  It is a promising method of promoting both renewable energy and distributed generation.  Religious congregations are often uniquely able and motivated to implement these projects to realize the direct benefits of the infrastructure investment and a reduced carbon footprint, as well as the indirect benefits that derive from the concerted action of an ethically motivated community.  In fact, local community solar implementation by established and well regarded institutions, as religious congregations often are, may inspire congregants and other community members to do the same, or to support public policy measures aimed at expanding renewable energy. A potential problem arises when congregations use their tax-exempt property (such as church rooves) to host community solar projects: how does a community solar project fit within the limited uses allowed under the tax-exempt […]

Is Generating Renewable Energy a Religious Use of Property? A Question as Congregations ...


Michael Burger – Since the enactment of the Mineral Leasing Act in 1920 and the Outer Continental Shelf Lands Act in 1953 the United States federal government has leased onshore and submerged public lands to private companies to mine coal and drill for oil and gas, often at a steep discount, and often with little or no accounting for the broad scope of these fossil fuels’ environmental externalities.  The raft of environmental legislation that passed through Congress in the 1970s addressed these issues to some degree.  For example, the Federal Coal Leasing Amendment Act required the United States to, among other things, recover “fair market value” of each lease; the Surface Mine Control and Reclamation Act established a system for controlling local environmental impacts from coal mining; the National Environmental Policy Act required the federal government to assess, analyze and disclose potential adverse environmental impacts from federal actions, including cumulative […]

A Carbon Fee As Mitigation For Fossil Fuel Extraction On Federal Lands


Peter Howard & Jason Schwartz – U.S. climate regulations present a special case of federal agencies applying a global, rather than exclusively domestic, perspective to the costs and benefits in their regulatory impact analyses.  Since 2010, federal agencies have emphasized global valuations of climate damages for policies that affect carbon dioxide emissions, using a metric called the “Social Cost of Carbon.”  More recently, agencies have also begun to use a global valuation of the “Social Cost of Methane,” for methane emissions.  Yet lately, these global metrics have come under attack in courtrooms and academic journals, where opponents have challenged the statutory authority and economic justification for global values.  This paper defends a continued focus on the global effects of U.S. climate policy, drawing on legal, strategic, and economic arguments. International reciprocity presents the strongest justification for a global focus.  Because the world’s climate is a single interconnected system, the United […]

Think Global: International Reciprocity as Justification for a Global Social Cost of Carbon



David L. Markell – The legal environment for local government in Florida (the “State”) is beginning to change when it comes to sea-level rise (“SLR”).  Innovations in institutional structure and governance strategies are underway in the State as well.  This Article reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others.  It begins, in Part II, with the State’s decision, in 2011 legislation, to give local governments a new, optional tool—referred to as “Adaptation Action Areas” (“AAAs”)—to address sea-level rise and related issues in local comprehensive plans.  Part III turns to a second piece of Florida legislation, the State’s 2015 “Peril of Flood” legislation, which mandates that local governments begin to address sea-level rise and other causes of flood-related risks through their comprehensive planning processes.  Part IV discusses a third initiative, the Southeast Florida Regional Climate Change […]

Emerging Legal and Institutional Responses to Sea-Level Rise in Florida and Beyond


Laurie Ristino & Gabriela Steier – Soil and water are inextricably related, a fragile and complex system upon which agriculture and, in turn, our species, depend.  Yet we tend to regard this relationship and its criticality in the singular dimension of drought, hindering progress in policy and law to improve agricultural sustainability.  Without necessary policy reforms designed to protect the delicate balance between soil health, water conservation, and agricultural yield, we are foreclosing a food secure future for our nation.  America’s agriculture and farm policy, as embodied in the Farm Bill, has devastated natural resources and, thereby, nature.  Single resource advocacy and land management, such as water or soil conservation, fails to address this systems-based challenge, which is inextricably tied to the farm bill safety net.  American agriculture, as defined by the U.S. Department of Agriculture (“USDA”), commands the majority of the land mass of the lower forty-eight states.  Agriculture […]

Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future


Lauren Packard – In 2015, the Supreme Court decided Michigan v. EPA, finding that the U.S. Environmental Protection Agency (“EPA”) interpreted section 112 of the Clean Air Act unreasonably when it decided to regulate toxic mercury emissions from power plants without first considering compliance costs.  Justice Scalia, writing for a 5-4 majority, found that the term “appropriate and necessary” in section 112 “naturally and traditionally” includes a consideration of costs.  Consequently, the Court found that EPA’s decision to regulate mercury emissions did not warrant deference under Chevron v. Natural Resources Defense Council because EPA did not predicate its determination on an analysis of compliance costs.  Rather, EPA decided to regulate emissions from power plants because such emissions pose a public health hazard, pre-existing regulations did not adequately address this hazard, and control technologies exist to mitigate it.  In her dissent, Justice Kagan pointed out that the agency had considered costs […]

Michigan: An Intrusive Inquiry into EPA’s Rulemaking Process