Designing Law to Prevent Runaway Climate Change

by Melissa Powers | November 15, 2018

This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog.

"Every system is perfectly designed to get the results it gets." If that's so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets — such as an 80 percent reduction in greenhouse gas emissions or 100 percent renewable power by 2050 — are designed with loopholes and exemptions that make it unlikely that the targets will be met. For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, ...

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

by Sarah Krakoff | November 14, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural ...

Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law

by Robin Kundis Craig | November 13, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. How much do presidents really matter to the United States' participation in international environmental law? Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush's pursuit of Middle Eastern terrorists in the wake of 9/11, including wars ...

Act Two: Answering the Clear Mandate for Vigorous Oversight

by Matt Shudtz | November 08, 2018
For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And ...

Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

by Sandra Zellmer | November 06, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not ...

Climate Change, Public Health, and the Ocean and Coasts

by Robin Kundis Craig | November 05, 2018
Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to a lesser extent, deeper. Coral reefs are dying.  Clearly, the climate impacts on the ocean are cause for concern. Between 2013 and 2016, the ocean ...

Gutting Fuel Efficiency and States' Rights: The Trump EPA's Unsafe SAFE Vehicles Rule

by Hannah Wiseman | November 01, 2018
This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission. On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the ...

Argument Preview: Can a Hovercraft Navigate the Shoals of Yukon-Charley?

by Sandra Zellmer | October 31, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the oral arguments in this case. “Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once ...

Argument Preview: Justices May Consider Role of Legislative Motive in Pre-emption Analysis

by Emily Hammond | October 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Hammond's follow-up analysis of the oral arguments in this case. On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the ...

Fresno Bee Op-Ed: Trump Rolls Back Clean Car Standards as Air Quality Worsens

by Alice Kaswan | October 25, 2018
This op-ed originally ran in the Fresno Bee. Cities in the San Joaquin Valley continue to land among the American Lung Association's top 10 most polluted communities in the country. Meanwhile, on Tuesday, the comment period closed on the Trump administration's plans to ratchet back federal emissions standards and eliminate California's authority to run its crucial car emissions programs. Although the administration has its eyes on greenhouse gas controls, what's at stake is California's ability to transition to low- and ...

Trump's Fall Anti-Safeguards Agenda: No Country for Young Children

by James Goodwin | October 17, 2018
The Trump administration's Fall 2018 regulatory agenda dropped late last night, and as with previous iterations of this preview of what's to come on the regulatory front, it is chock full of numbers – at least the kinds of numbers partisan ideologues and regulated industries care about. But what these numbers don't reveal are the kinds of things a decent society cares about. Basic things like how well we are protecting the health and welfare of children, for example. Already, ...

'National Security' Coal Bailout Collapses

by Daniel Farber | October 17, 2018
Cross-posted from LegalPlanet. In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of ...

Justice Delayed: Mercedes-Benz's Diesel Pollution Remains Unprosecuted

by Joel Mintz | October 16, 2018
To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things. The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was ...

The Hill Op-Ed: Blind Focus on 'Energy Dominance' May Cripple Endangered Species Act

by Alejandro Camacho | October 05, 2018
This op-ed originally ran in The Hill. The bald eagle, sea otter, timber wolf — these iconic animals and more have been saved by the Endangered Species Act (ESA). But the Trump administration doesn't seem to care about our country's natural heritage. It's using questionable arguments about the popular law in an effort to gut protections and convert our public lands into private assets. The administration's destructive intent is apparent in the proposed revisions to the ESA by the U.S. Fish and Wildlife Service ...

The Trump Administration's Acknowledgement of Climate Change Is Cynical -- and Potentially Sinister

by Melissa Powers | October 03, 2018
As Juliet Eilperin, Brady Dennis, and Chris Mooney of The Washington Post reported on September 27, the Trump administration seems to finally be acknowledging that climate change is real. But the motivation for recognizing that reality is cynical, at best, so rather than proposing doing something – anything – about climate change, the administration concludes we shouldn't bother trying.  Buried in a 500-page justification for a rule that would prevent California (and, by extension, other states) from regulating emissions of ...

Environmental Justice Is Worth Fighting For

by Sidney Shapiro | October 02, 2018
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission. The reactions to our article, Inequality, Social Resilience, and the Green Economy, have a clear message: We, environmentalists, have our work cut out for us. We wrote our article to start an overdue conversation about environmental policy and social and economic well-being, and we thank our commentators for joining us in starting this conservation. In response, we would note that, although protecting the ...

Argument Preview: Justices to Consider Critical-Habitat Designation for Endangered Frog

by Lisa Heinzerling | September 28, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog. A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the ...

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

by John Echeverria | September 28, 2018
On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred. The Knick ...

Environmental Policy

The planet faces unprecedented environmental challenges. Heading the list of threats is climate change, but other problems persist, including air and water pollution, toxic waste, and the protection of natural resources and wildlife. In recent years, we've been reminded that many of these problems , in their way, magnify the harm from natural disasters.

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