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This Month's News & Analysis

Volume 46, Issue 6 — June 2016

Dialogue

Informing Investors of Climate Risk: The Impact of Securities Laws in the Environmental Context

by Tom Mounteer, Leah A. Dundon, Kevin A. Ewing, and Elizabeth Lewis

Investors, regulators, and shareholders have shown increasing interest in the information that corporations do and do not disclose about potential climate risks. Legal requirements in this area are complex, governed by an amalgam of securities laws dating back to the 1920s, state anti-fraud statutes, and more recent guidance and voluntary practices specific to climate risk. On March 17, 2016, the Energy Bar Association’s Environmental Regulation Committee convened a panel of expert practitioners to discuss these issues. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Comment(s)

Should the United States Create Trading Markets for Energy Efficiency?

by Noah M. Sachs

For over 30 years, the United States has deployed an effective set of policies to promote energy efficiency, including appliance standards, information disclosure requirements, auto fuel economy standards, building codes, and tax rebates. From 1980 to 2014, the energy intensity of the U.S. economy declined by about 50%—a remarkable success story. Energy efficiency policies and technologies were responsible for a substantial portion of that decline. Climate and energy experts are now calling for the near-complete decarbonization of the U.S. economy by the middle of the century, raising the question of whether the old policy tools to promote energy efficiency are up to the task. This Comment examines whether the vision for energy efficiency markets matches the reality. It explains how energy efficiency markets work, examines the handful of energy efficiency markets that have been established to date, and explores the policy challenges inherent in commodifying energy efficiency and making it a tradable good.

India’s National Green Tribunal: Human Rights and the Merits of an Environmental Court

by Navya Jannu

India’s National Green Tribunal (NGT) was established by statute in October 2010 “for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.” The intent was to create a “specialized body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues.” To this end, the guiding light for the NGT has moved beyond the confines of India’s Civil Procedure Code of 1908 and into the realms of “natural justice.” In this Comment, I explore the mix of rhetoric and reality in an effort to distill the merits of India’s new institutional experiment and its implications for the national protection of human rights. Given the ubiquitous and increasing environmental degradation in the country, I argue that the creation of this “tribunalized” form of environmental adjudication and governance is necessary and welcome.

Articles

Cross-Border Constraints on Climate Change Agreements: Legal Risks in the California-Quebec Cap-and-Trade Linkage

by David V. Wright

As the world begins implementing the Paris Agreement, Canada and the United States remain without comprehensive greenhouse gas regimes at the federal level; most action has taken place at the subnational level. At the forefront is the California-Quebec cap-and-trade market linkage. Close examination of this example demonstrates that such linkages are susceptible to constitutional constraints on both sides of the border. This Article presents constitutional dimensions from Canada and the United States, and shows there is a live risk that a court could find the linkage constitutionally offside due to its binding effect. Constitutional constraints particular to the United States also suggest that foreseeable changes may put the California state program at variance with federal climate policy, rekindling risks around consistency between state action and U.S. foreign policy. The Article puts forward two suggestions, one federal and one subnational, that could be taken in Canada and the United States to partially reduce the remaining legal risk.

Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take

by Jonathan Wood

The Endangered Species Act (ESA) makes it a crime to “knowingly” take any member of an endangered species. The government has generally interpreted this to require the defendant’s knowledge of each of the elements of the offense; however, it has not been consistent in this interpretation. In several cases, it has argued that the defendant need only have knowingly engaged in an act that resulted in take, and that knowledge that a particular species will be taken is unnecessary. This Article argues that the statute requires knowledge of all the facts, including the identity of the species. In other contexts, the U.S. Supreme Court has required knowledge of the facts constituting an offense, for fear of criminalizing apparently innocent, ordinary conduct. The breadth of the ESA’s take provision and the number and obscurity of the species subject to it counsel in favor of interpreting the statute consistent with this general rule.

“Running on Fumes”: The Development of New EPA Regulations in an Era of Scarcity

by Joel A. Mintz

EPA’s operating budgets and staff size are at historically low levels, and the volume of its facility inspections and civil enforcement cases has dropped. The enforcement resources available to state environmental agencies have also declined considerably. At the same time, the regulatory and enforcement responsibilities of both EPA and state agencies have expanded significantly. In addition, too many of EPA’s new regulations have been rejected by reviewing courts on the ground that they fail to provide regulated parties with fair notice; beyond this, ambiguous regulations may preclude enforcement actions altogether or weaken the hand of Agency personnel in negotiating individual settlements. To correct these problems, EPA’s top managers need to promote an Agency culture in which enforcement and regulatory enforceability are given added importance. OECA should cultivate allies in DOJ and EPA’s 10 regional offices, fight for more resources, and train new members of the Agency’s enforcement staff in regulatory development. From the standpoint of environmental protection, the enforceability of new EPA regulations is absolutely critical.

In the Courts

Supreme Court rejects Maryland program for in-state power generation.

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In the Courts Archive

In the Agencies

BSEE finalizes new offshore oil and gas drilling regulations.

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In the Agencies Archive

In the Congress

House and Senate reauthorize National Estuary Program.

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In the Congress Archive

In the States

New York proposes to amend solid waste management regulations.

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In the States Archive