Legal Theory Blog

Kaswan on Climate Change & Cities

Alice Kaswan (University of San Francisco - School of Law) has posted Climate Change, Consumption, and Cities (Fordham Urban Law Journal, 2009) on SSRN.  Here is the abstract:

In this article, Professor Kaswan argues that hoped-for greenhouse gas reductions cannot be achieved without reducing consumption. Given their control over land use and buildings, cities can play a key role in reducing consumption. She argues that, while existing federal proposals for a market-based approach could indirectly create incentives that would reduce emissions from transportation and buildings, the invisible hand of the market will not suffice. Nor can the federal government succeed alone. Local and regional governments could play a key practical and institutional role, and many have already initiated greenhouse gas reduction efforts.

Local governments are, however, unlikely to take sufficient action on their own initiative due to collective action constraints, the socioeconomic complexities driving existing land use patterns, and federal and state disincentives to smarter growth. Professor Kaswan argues for a vertically integrated approach to overcome impediments to local action. She proposes that the federal government delegate emission reduction responsibilities to the states who would in turn delegate responsibility to regional or local governments. She also proposes that federal law require the integration of broader regional equity goals to address the complex socioeconomic factors that are inextricably implicated in land use decisions.

Long on Climate Change Litigation & International Consensus

Andrew Long (Florida Coastal School of Law) has posted International Consensus & U.S. Climate Change Litigation (33 William & Mary Environmental Law and Policy Review 177 (forthcoming 2008/09)) on SSRN.  Here is the abstract:

In this Article, I argue that U.S. courts should make greater use of the norms established in the United Nations Framework Convention on Climate Change (UNFCCC) and other components of the international climate change regime when deciding how domestic laws apply to issues arising from climate change. This argument develops from the rapid growth of international environmental law in recent decades, as well as the increasingly intertwined relationship of international and domestic legal systems in several issue areas.

Over the course of the nation's history, U.S. courts have regularly employed international and foreign sources. Dualist views of the U.S. Constitution have become predominant, however, and recent U.S. Supreme Court references to foreign and international sources in several human rights cases stirred exceptional controversy. The controversial nature of such citations in recent cases is unfortunate because it tends to obscure the value of domestic judicial interaction with international regimes.

U.S. courts are facing an increasing number of cases that address some aspect of the U.S. response to climate change. In virtually all of these cases, most notably Massachusetts v. EPA, courts have formally addressed only issues of domestic law. Nonetheless, the cases impact issues of global concern and are decided in the shadow of an international legal regime, especially given the United States' failure to adopt significant national climate change policies.

U.S. courts could enhance the value of their decisions, both domestically and in the international arena, by directly engaging international climate change norms. The UNFCCC's requirement that countries take measures to stabilize greenhouse gas concentrations, for example, is directly relevant to formally domestic cases decided by U.S. courts. Explicitly engaging the international norms where they are relevant would (1) enhance the United States' standing and influence in negotiations toward a post-2012 climate change regime, as well as promoting "soft power" in other areas, (2) benefit the international regime by providing a concrete application of its core precepts, (3) develop a baseline legal framework that would encourage consistency both within the domestic U.S. legal system and across domestic legal systems addressing the same threats, and (4) further the judicial role of providing a check on mixed national-international regulatory activities. In order to advance these goals, I outline one possible approach to incorporating international climate change norms into domestic U.S. cases.

Perez on Intutive Judgment & the Economic Approach to Environmental Regulation

Oren Perez (Bar-Ilan University - Faculty of Law) has posted Regulation as the Art of Intuitive Judgment: A Critique of the Economic Approach to Environmental Regulation (International Journal of Law in Context, 2009, Bar Ilan Univ. Pub Law Working Paper) on SSRN.  Here is the abstract:

The article develops a general critique of the economic approach to environmental regulation, drawing on the insights of systems theory. It highlights, first, the problematic of subjugating the regulatory system to a single purpose - which in the context of environmental economics is interpreted as the utilitarian maximization of collective welfare. Second, it questions the teleological pretense of the regulatory project as it is configured in the economic literature. It highlights in this context the problem of trans-systemic incompatibilities, which impede the incorporation of economic ideas into the systems of law and politics. Environmental economics in both its normative and socio-political strands, fails to provide a convincing response to this dilemma. The article discusses two examples of the reconstruction of economic ideas within the legal and political domains, drawing on the EU and US regulatory experience. This twofold critique of the economic approach can be extended, it is argued, to every regulatory project with far-reaching teleological ambitions. The article applies this critique to some alternative regulatory visions, such as self-regulation, reflexive law and responsive regulation, noting in this context the limitations of systems theory itself. It concludes with a discussion of the role of intuition in regulatory decision-making.

Vandenbergh & Cohen on Climate Change & Happinesss

Michael P. Vandenbergh and Mark A. Cohen (Vanderbilt University - School of Law and Vanderbilt University - Owen Graduate School of Management) have posted Consumption, Happiness and Climate Change (Environmental Law Reporter, Vol. 38, December 2008) on SSRN.  Here is the abstract:

In this article, we explore the implications of this literature for understanding the relationship between climate change policies and consumption. We identify a number of ways in which accounting for the implications of the new happiness literature could lead to laws and policies that influence consumption in ways that increase the prospects for reducing greenhouse gas emissions in developed and developing countries. We do not examine every nuance of the growing happiness literature, but we provide a brief introduction and observations that we hope will stimulate further efforts by academicians and policymakers.

Biber on Delayed Harm & Environmental Law & Policy

Eric Biber (University of California, Berkeley - School of Law) has posted The Sting of the Long Tail: Climate Change, Backlash and the Problem of Delayed Harm on SSRN.  Here is the abstract:

Climate change is an example of a common problem in environmental law: delayed harm, where environmental harm only manifests itself long after the human activity that causes it. Delayed harm poses specific challenges to environmental policymakers: It makes causation difficult to establish or prove, making the use of liability systems difficult. It poses significant political obstacles to the establishment of regulatory systems to address the harm, because of the entrenchment of economic interests, myopia, and endowment effects. And perhaps most importantly, it poses significant challenges to the maintenance of regulatory programs after they are created - even if the regulatory program succeeds at eliminating the human activity causing the harm (perhaps at great cost), the harm will continue to persist for an extended period of time because of the delay. This gap between regulatory action and environmental performance may inspire a backlash against the regulatory system, as shown with the Endangered Species Act (ESA). One possible solution is to focus on restoration, undoing the harm that has accumulated from prior human activity. However, restoration work has had mixed results in areas such as ESA implementation, because it can be very costly, it can be uncertain in its effectiveness, and because it may also take an extended period of time to succeed. Delayed harm will pose significant challenges to the primary tool that has been proposed to address climate change: regulation. Even if policymakers are able to overcome the not-insignificant challenges to initiating regulation, there is a distinct possibility that there may be a backlash against climate change regulation because of the inevitable persistence of climate change harm after regulation begins. There are a range of possible restoration efforts that might help reduce the risk of a backlash: adaptation efforts to reduce the harm to specific human or natural systems from climate change or various geoengineering schemes for removing carbon from the atmosphere or managing the global average temperature. However, many of these restoration efforts are costly, highly uncertain as to effectiveness, themselves require substantial time delays, or have significant side effects. Nonetheless, the lessons of delayed harm indicate that both adapatation and geoengineering must be taken seriously as part of a overarching policy response to climate change. This requires better coordination between greenhouse gas regulation and adaptation efforts, and also expanded research into the feasibility and desirability of geoengineering.

Ruhl, Salzman, & Goodman on the Ecosystems Services Mandate

J.B. Ruhl , James Salzman and Iris Goodman (Florida State University College of Law , Duke University - School of Law) have posted Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy (Stetson Law Review, Forthcoming) on SSRN.  Here is the abstract:

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into the mitigation decision-making standards, requiring that "compensatory mitigation...should be located where it is most likely to successfully replace lost...services." Easily overlooked in the in the 210-page Federal Register document, this is a potentially significant development, but it will be unlikely to gain policy traction without substantial research into the development of efficient and reliable wetland ecosystem service assessment methods. To help orient such research efforts, this article provides: (1) background on the compensatory mitigation program and ecosystem services prior to promulgation of the new rule; (2) an overview of how the new rule integrates ecosystem service analysis into compensatory mitigation decisions; and (3) suggestions for a research agenda to support implementation of that feature of the rule.

Elliott on Environmental Policy & Political Logjams

E. Donald Elliott (Yale Law School) has posted Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era (NYU Environmental Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Describes strategies for updating environmental law and policy in a logjam era in which legislation is not readily available due to a blood feud between the political parties and other factors. Recommends expert consensus proposal systems as well as greater flexibility under the Chevron doctrine.

Yang & Percival on Global Environmental Law

Tseming Yang and Robert V. Percival (Vermont Law School and University of Maryland - School of Law) have posted The Emergence of Global Environmental Law on SSRN. Here is the abstract:

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have increasingly become internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems across the world. A number of trends, such as globalization and international development aid efforts, have shaped the global rise of environmental law. The result is the emergence of a shared set of legal principles and norms regarding the environment, such that one can arguably describe it as a common body of law. The emergence of what we call "global environmental law" already has and will likely continue to have profound implications for the implementation, practice, and development of environmental law worldwide.

Driesen on Instrumental Choice & Climage Policy

David M. Driesen (Syracuse University - College of Law) has posted Neoliberal Instrument Choice (ECONOMIC THOUGHT AND U.S. CLIMATE CHANGE POLICY, David Driesen, ed., MIT Press, 2009) on SSRN.  Here is the abstract:

This book chapter reviews the influence on economic thought about instrument choice and its influence upon United States climate change policy. It shows that the theory of instrument choice made a positive contribution to the United States policy arsenal by emphasizing the cost effectiveness advantages of emissions trading. But because of an ideological climate uncritically supportive of free markets prevailed during the period of U.S. failure to address climate change, the United States favored overly broad trading programs, both in terms of geography and scope. This posture had a large influence on the Kyoto Protocol, leading the world to adopt a structure that creates significant risks of losing emission reductions and less incentive for innovation than a more narrowly designed program would offer. The chapter highlights the tension between sound regulatory policy and maximization of cost savings, which broad design favors. This chapter forms part of a forthcoming book, edited by the author, evaluating economic thought's influence on United States climate change policy.

Sunstein on Irreversibility

Cass R. Sunstein (Harvard Law School) has posted Irreversibility (Oxford University Press, Law, Probability and Risk, Forthcoming) on SSRN. Here is the abstract:

The concept of "irreversibility" plays a large role in many domains, including public health, medical practice, and environmental protection. Indeed, the concept is explicit in some statements of the Precautionary Principle. But the idea of irreversibility remains poorly defined. Because of the flow of time, any loss is, in a sense, irreversible. On one approach, irreversibility might be understood as a reference to the value associated with taking precautionary steps that maintain flexibility for an uncertain future ("option value"). On another approach, irreversibility might be understood to refer to the qualitatively distinctive and even unique nature of certain losses - a point that raises a claim about incommensurability. The two conceptions fit different problems. These ideas can be applied to a wide assortment of environmental and public health questions, including overuse of antibiotics, genetic modification of food, avian flu, and climate change.

And from the paper:

The idea of option value, as used in the monetary valuation literature just discussed, is closely related to the use of the notion of “options” in the domain that I shall be emphasizing here. The simple claim is that when regulators are dealing with an irreversible loss, and when they are uncertain about the timing, magnitude, and likelihood of that loss, they should be willing to pay a sum—the option value—in order to maintain flexibility for the future. The option might not be exercised if it turns out that the loss is not a serious one. But if the option is purchased, regulators will be in a position to forestall that loss if it turns out to be large. The concern about irreversibility, and hence an Irreversible Harm Precautionary Principle, are based on the idea that regulators should be willing to buy an option to maintain their own flexibility. (I am using terms that suggest monetary payments, but the basic point holds even if we are skeptical about the use of monetary equivalents; “purchases” can take the form of precautionary steps that do not directly involve money.)

And:

It should be readily apparent how an understanding of option value might explain the emphasis, in the National Environmental Policy Act (NEPA) and other statutes involving public health and the environment, on irreversible losses. The central point of NEPA is to ensure that government officials give serious consideration to environmental factors before they take action that might threaten the environment.32 If the government is building a road through a pristine area, drilling in Alaska, or licensing a nuclear power plant, it must produce an “environmental impact statement” discussing the environmental effects. The production of these statements can be burdensome and costly. But when potentially irreversible losses are involved, and when officials cannot specify the magnitude or likelihood of such losses, the public, and those involved in making the ultimate decision, ought to know about them.

So too in the domain of public health. If a risk – of, for example, avian flu – is highly speculative, we might nonetheless take precautions in order to preserve flexibility for the future. The special concern about overuse of antibiotics, in increasing resistance, involves the same goal. And when officials undertake precautions against low-probability risks, an intuitive concern about irreversibility is often the animating concern.

Finally:

[T]he idea of irreversibility is not without ambiguity. Let us consider two possible interpretations. Under the first, an effect is irreversible when restoration to the status quo is impossible or at best extremely difficult, at least on a relevant timescale. For example, the “decision not to preserve a rich reservoir of bioiversity such as the 60 million-year-old Korup forest in Nigeria is irreversible. The alteration or destruction of a unique asset of this type has an awesome finality.”40 If this is the appropriate interpretation of irreversibility, then it is an aspect of seriousness. A second interpretation, standard in the economic literature on options, sees irreversibility in terms of sunk costs. The two interpretations lead to different understandings of the problem of irreversibility and the Irreversible Harm Precautionary Principle.

This paper is short, clear, and very helpful.  Read it.