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Volume 49, Issue 8 — August 2019


The Attack on American Cities

by Richard C. Schragger

Cities often test the existing limits of their regulatory authority in areas like environmental protection, labor and employment, and immigration. The last few years witnessed an explosion of preemptive state legislation attacking, challenging, and overriding municipal ordinances across a wide range of policy areas. But this hostility to city government is not new. In 1915, one professor observed that “the relations of states to metropolitan cities in this country is ‘a history of repeated injuries’ .  .  . [and] ‘repeated usurpations.’” This Article’s descriptive goal is to understand how an institutional system overtly dedicated to the principles of devolution can be so hostile to the exercise of city power. It first describes the twenty-first century attack on American cities by canvassing preemptive state legislation across a number of policy areas. It then turns to “Our Federalism’s” anti-urbanism, and describes how state-based federalism hinders municipal power generally, and how the U.S. Constitution favors rural over urban voters specifically. It then places this “anti-urban constitution” in the context of the historic skepticism of the exercise of city power. Finally, it considers the legal and political options available to cities in responding to these conflicts.

Reforming Judicial Ethics to Promote Environmental Protection

by Tom Lininger

Does the duty of environmental protection belong in the ethical rules for our profession? A number of scholars have explored whether lawyers should bear such duties. But little attention has focused on the possibility that “green ethics” would also be appropriate for judges. Rules of judicial ethics frame the manner in which judges take account of environmental concerns. At present, these rules provide very little guidance that is relevant to environmental matters. Many judges have a general inclination to favor private property rights or to defer to governmental approvals of development projects, but there is no countervailing authority that counsels judges to consider environmental priorities. This Article offers proposals for a series of reforms to the American Bar Association’s Model Code of Judicial Conduct to help to create conditions in which the legal system can play a more efficacious, inclusive and transparent role in environmental protection.

The Future of Energy Storage: Adopting Policies for a Cleaner Grid

by Richard L. Revesz and Burcin Unel

The view that promoting the use of energy storage systems produces environmentally attractive results has been standard in policy circles. Policymakers have been enthusiastic about energy storage systems primarily because of their belief that cheaper and more prevalent storage options could help facilitate the integration of increased renewable energy generation and speed up the transition to a low-carbon grid. This beneficial outcome, however, is not guaranteed. Cheaper storage could also facilitate a higher usage of fossil fuels than the current fuel mix, causing an increase in greenhouse gas emissions. In fact, California’s Self-Generation Incentive Program, which is the state’s pioneering funding program developed to incentivize energy storage among other technologies, has led to an increase in greenhouse gas emissions, showing that it is this possibility that must be considered in policymaking. Therefore, it is important to design policies that help ensure that the increased use of energy storage leads to a reduction of greenhouse gas emissions, rather than to an increase. Thus, the first goal of this Article is to challenge the common belief that increased energy storage would necessarily reduce greenhouse gas emissions, and show, instead, that under certain scenarios the opposite could be true. The second goal is to analyze the failure of the current regulatory and policy landscape to provide incentives for a desirable level of deployment of energy storage and the reduction of greenhouse gas emissions, and propose policies that would correct these inefficiencies.

Free Trade, Fair Trade, and Selective Enforcement

by Timothy Meyer

The notion of “fair” trade implies that trade agreements should protect values other than pure trade liberalization. But which values must be protected in order for trade to be “fair”? This Article makes two novel contributions. First, focusing on the environmental context, it demonstrates that selective enforcement in trade law today is pervasive. Notably, instead of selectively enforcing environmental laws to gain a trade advantage—the traditional concern of critics—governments selectively enforce trade laws in ways that hurt environmental interests. Second, this Article argues that this kind of selective enforcement slows the development of competitive environmentally-friendly products. In effect, selective enforcement of trade law acts as an implicit subsidy for products with large social costs. To illustrate these two arguments, this Article evaluates how governments enforce rules that limit subsidies and other forms of government financial support for industries against programs benefitting natural resources (such as fossil fuels) and their substitutes (such as renewable energy). Lastly, this Article concludes by suggesting how governments can reform trade law enforcement to address the pernicious effects of selective enforcement.

Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing

by Jayni Foley Hein

The externality costs of fossil fuel production—including pollution costs—are not accounted for under the U.S. Department of the Interior’s (Interior) coal, oil, and natural gas leasing programs. This results in fossil fuel production on public lands imposing significant social costs. Interior’s leasing programs have never been tailored to meet any past or present climate change goals, despite their significant contribution to domestic greenhouse gas emissions. Moreover, several government studies show that federal fossil fuel leasing programs are riddled with loopholes and stagnant fiscal terms that shortchange federal taxpayers, to whom the nation’s minerals belong. This Article presents a path forward for Interior’s fossil fuel leasing programs that would instill more rationality into the process, with the goal of maximizing social welfare. This Article argues that Interior should account for all the costs and benefits of leasing—including environmental and social costs—and adjust the fiscal terms of its fossil fuel leases to recoup unmitigated externality costs. In doing so, Interior can arrive at a social-welfare maximizing leasing program. The tools and reforms suggested in this Article would likely have the effect of reducing production on marginal tracts where the cost of production would outweigh the benefits. Additionally, these tools and reforms could earn states, the federal government, and taxpayers more revenue from the resources they own while reducing greenhouse gas emissions, illustrating the utility of using fiscal reform as a policy lever in the absence of comprehensive climate change legislation.


State Preemption of Local Government: The Philadelphia Story

by Richie Feder and Lewis Rosman

We are practitioners for the City of Philadelphia with extensive experience in cases and analysis regarding the extent to which the Commonwealth of Pennsylvania has, or has not, preempted local regulation in various subjects of concern to the City. As City attorneys, our perspective is based in our role as advocates for the preservation and defense of the City’s exercise of its home rule powers. In considering the city-state relationship, many of the practical, political and cultural issues addressed in Prof. Richard C. Schragger’s article, The Attack on American Cities, resonate with us. In a number of instances, the city has seemingly been under “attack” from outside forces that appear mistrustful and hostile to the city’s exercise of its regulatory authority. Because we are the quintessential “big city” in a state with an otherwise very large suburban and rural population, the commonly cited historical tension between urban life and non-urban interests has played out in ways that we recognize in Schragger’s description of the national experience. We are not wholly convinced, however, that state law preemption that impacts the city’s powers is the outcome of a particular hostility to urban interests in general as much as it is the outcome of the ability of “special interests,” often corporate but also often “interest-group” or culturally based, to exert outsized influence on the state legislature. 

The Public’s Interest and Durable Management of Energy Development on Public Lands

by Tommy Beaudreau, Janice Schneider, and Joshua Marnitz

The United States owns, on behalf of all Americans, approximately 30% of the nation’s land, totaling more than 600 million acres. These lands are overseen by the Bureau of Land Management (BLM) in the U.S. Department of the Interior (DOI). DOI's stewardship responsibilities over these lands, and the diverse natural resources they contain, are grounded in its authorizing statutes, such as Federal Land Policy and Management Act (FLPMA), the Mineral Leasing Act (MLA), and the Outer Continental Shelf Lands Act (OCSLA). In light of these statutory directives that DOI’s management of public lands be, broadly speaking, in the public’s interest, Prof. Jayni Foley Hein argues in Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing that DOI must rethink its programs for the leasing of fossil fuels—including coal, oil, and natural gas—on public lands “with the goal of maximizing social welfare.” In sum, Professor Hein advocates a strategy for using existing administrative authorities governing the management of fossil fuel leasing on public lands to advance social welfare by addressing the social costs of greenhouse gas (GHG) emissions related to the eventual combustion of those fuels. While the goals of using federal authorities to advance social welfare are laudable, this Comment argues that absent clearer legislative authority establishing that the public’s interests in managing oil, natural gas, and coal leasing and development on public lands includes GHG emissions reduction and advancing climate goals, administrative policy and even regulatory changes premised on the generalized statements about the nation’s interests and needs are not likely to be durable.

Analysis of Environmental Law Scholarship 2017-2018

by Maura Allen, Linda Breggin, Lauren Stern, and Michael Vandenbergh

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of some of the most creative and feasible environmental law and policy proposals from the legal academic literature each year. The pool of articles that are considered includes all environmental law articles published during the previous academic year. The law journal articles that are re-published and discussed are selected by Vanderbilt University Law School students with input from their course instructors and an outside advisory committee of experts. The purpose of this Comment is to highlight the results of the ELPAR article selection process and to report on the environmental legal scholarship for the 2017-2018 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles. It also presents the top 20 articles that met ELPAR’s criteria of persuasiveness, impact, feasibility, and creativity, from which five articles were selected to re-publish in shortened form, some of them with commentaries from leading practitioners and policymakers. Thus, the goal of this Comment is to provide an empirical snapshot of the environmental legal literature during the past academic year, as well as provide information on the top articles chosen by ELPAR.

A Minimal Problem of Marginal Emissions

by Ryan Thomas Trahan

Prof. Richard L. Revesz and Dr. Burcin Unel provide a useful, albeit no longer current, review of electric energy storage in Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions (Managing). The energy storage market has continued its rapid technical and manufacturing evolution. Those advances may reasonably be expected to impact today’s regulatory aims and frameworks, just as prior technological progress influenced administrative goals and processes. Central to the analysis in Managing is the proposition that deploying energy storage may actually increase greenhouse gas emissions. Its recommendations each follow from that base, i.e., internalize emissions externalities, eliminate barriers to entry, and implement rules to guarantee accurate price signals. These policy directives intuitively feel right, resembling as they do first principles of economics. Where theory intersects with administrative process, however, concessions are often made, and so it is here. Taking the prescription reviewed in this brief comment, Managing describes the path toward internalizing emissions externalities (vis-à-vis carbon tax or otherwise integrating with wholesale electricity market prices) as long and uncertain. As such, the actual recommendation to policymakers is to perform cost-benefit analysis. Cost-benefit analysis is a familiar framework for decisionmaking, although Managing forwards two suggestions that may reasonably be viewed as less typical. It takes the position that its recommendations should be achieved prior to energy storage incentive programs being implemented, so as to avoid the specter of inadvertently causing higher emissions. Second, it encourages policymakers to engage in comprehensive analysis of all available energy storage technologies, and all manner of possible generation combinations as substitutes for deploying energy storage. This Comment adddress these suggestions in reverse order.

Weighting the Risks and Benefits of Energy Storage on Fleet Emissions: Academics vs. Fundamentals

by John Fernandes

In their paper, Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions, Richard L. Revesz and Burcin Unel of New York University School of Law (NYU team or authors) highlight a critical (and often times contentious) issue that the energy industry is attempting to address: how to quantify and incorporate a societal value of decreased greenhouse gas emissions into the dollar value of incremental energy that is provided to the electric system. The NYU team has appropriately noted that this discussion becomes more complex when one considers the ability of energy storage to withdraw energy in real time to be injected when it can be better utilized later. This capability has the potential to change the way “marginal” energy is defined.