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This Month's Issue of ELR

Volume 51, Issue 8 — August 2021


Analysis of Environmental Law Scholarship 2019-2020

by Linda K. Breggin, Stefan J. Berthelsen, Bryan Davidson, and Michael P. 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. This Comment highlights the results of the ELPAR article selection process and reports on the environmental legal scholarship for the 2019-2020 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.

The Uses of Climate Change Attribution Science: The NGO Practitioner's View

by Joanne Spalding and Daniel Hales

Climate advocates are fortunate to have the benefit of the thorough assessment of climate change attribution science and its application to climate policy and litigation that Michael Burger, Jessica Wentz, and Radley Horton have undertaken in their article. Attribution science has expanded dramatically during the past two decades, becoming increasingly nuanced and complex. Burger, Wentz, and Horton have helped unlock this resource by providing an explanation of the types of attribution research, a survey of the research, an analysis of its legal and policy applications, and suggestions for future developments. Their work will help policymakers and courts understand the challenges that climate change presents and develop strategies and remedies to address those challenges.

A Welfare Function for Shareholder Engagement: Recognizing Profit for What It Is

by Frederick Alexander

Madison Condon’s Externalities and the Common Owner (ECO) plays an important role in the growing literature around shareholder activism aimed at increasing portfolio returns, regardless of individual firm effects. The article raises important questions of political economy, power distribution, and anticompetitive activity. In this Comment, I introduce key terminology for discussing these issues, and then reframe several issues raised by the article.

Can't We All Just Get Along?: How Diversified Investors and Companies Can Maintain Their Fiduciary Duty in a Climate Crisis

by Natasha Lamb

Madison Condon’s Externalities and the Common Owner warrants serious attention and consideration by a broad variety of stakeholders—investors, public policymakers, academics, and citizens concerned about the systemic risks climate change pose to our economy, wealth, and sustainability. This Comment is written from the perspective of an active investor and portfolio manager integrating environmental, social, and governance risks and opportunities into Arjuna Capital’s client investment portfolios.

Externalities and the Common Owner: View From a Shareowner

by James Andrus and Anne Simpson

California Public Employees’ Retirement System (CalPERS) is the largest-defined benefit public pension fund in the United States, with about $450 billion in global assets under management. CalPERS actively protects its rights as an investor and the Board Governance and Sustainability program sits at the center of this effort. Collectively, the authors of this Comment have more than 40 years-experience in corporate governance and have been very close to CalPERS’ work on engagement, advocacy and integration of climate change risk and opportunity, as well as the conduct of this work through partnerships. The Comment provides background on CalPERS' focus on climate change, the authors' work with Climate Action 100+, and and the authors' thoughts on Madison Condon’s Externalities and the Common Owner given their knowledge of the common ownership debate.

California's Environmental Justice Mapping Tool: Lessons and Insights From CalEnviroScreen

by John Faust, Laura August, Andrew Slocombe, Shankar Prasad, Walker Wieland, Vincent Cogliano, and Carol Monahan Cummings

CalEnviroScreen, California’s mapping tool that quantifies cumulative impacts in communities, has played a pivotal role in advancing environmental justice in the state. The tool continues to evolve with each version by incorporating new data sources, the latest data, and community involvement and feedback. The tool can be tailored to fit unique applications because the underlying data sets are publicly available. This Comment expands on the points raised in Dr. Charles Lee’s article by sharing lessons learned during the development of the tool and providing insights to other states and jurisdictions as they consider developing mapping tools.

Mapping the Movement: The Future of Identifying and Addressing Cumulative Impacts

by Hilary T. Jacobs and Benjamin Wilson

Because environmental justice is inherently a conversation about geography (i.e., where in our states, cities, and towns are environmental burdens most concentrated), maps represent a natural tool for articulating and addressing environmental justice issues. In many ways, using mapping as a way to identify cumulative impacts is the natural outgrowth of what Charles Lee and his colleagues started in 1987 with Toxic Wastes and Race in the United States, one of the first publications to put data behind the pattern of disparate impacts that many in this country had witnessed for years. By distilling lessons learned from two of the most developed mapping tools in the country—California Environmental Protection Agency’s CalEnviroScreen and the U.S. Environmental Protection Agency’s EJ Screen—Charles Lee’s article paves the way for future mapping efforts.

Climate Stumbling Blocks: Zombie Energy Laws, States, and the Path to Paris

by Jessica R. Bell and Hampden T. Macbeth

With the dawn of the Joseph Biden Administration, there is renewed optimism that the United States will take steps to fulfill its responsibilities under the Paris Agreement and curb greenhouse gas (GHG) emissions. Electrification is a big step on this path, and the nation needs a cleaner, more resilient grid to support this reduced emissions future. But as University of Chicago Law Prof. Joshua C. Macey details in his article, Zombie Energy Laws, efforts to support mass electrification and decarbonization face a major stumbling block: zombies. In particular, zombie energy laws—“statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate”—undermine incorporation of more clean energy resources into the electricity grid and harm consumers in the process. This Comment highlights the progress states have made and are poised to continue making in reducing GHG emissions from the power sector; discusses two of the zombie energy laws identified in Macey’s article and identifies other proposed fixes; and explores two additional zombie laws that may impede clean energy progress.

You Can't Take Them Like That, It's Against Regulation

by Margaret H. Claybour

This Comment is written from the perspective of a practicing attorney who represents clients on the issues addressed in Prof. Joshua C. Macey’s Zombie Energy Laws, and focuses on the filed rate doctrine, which is one of the zombie energy laws Professor Macey identifies—a doctrine that is alive and kicking and still particularly relevant today.

Eminent Domain Law As Climate Policy

by Alexandra B. Klass

This abstract is adapted from Alexandra B. Klass, Eminent Domain Law as Climate Policy, 2020 Wis. L. Rev. 49 (2020), which contends that states should consider limiting eminent domain rights for fossil fuel projects and extending eminent domain rights for certain clean energy projects as part of their state climate policies.

The New Gatekeepers: Private Firms as Public Enforcers

by Rory Van Loo

This abstract is adapted from Rory Van Loo, The New Gatekeepers: Private Firms as Public Enforcers, 106 Va. L. Rev. 467 (2020), which examines the rise of the enforcer-firm through case studies of the industries that are home to the most valuable companies in technology, banking, oil, and pharmaceuticals.


The Law and Science of Climate Change Attribution

by Michael Burger, Jessica Wentz, and Radley Horton

There is overwhelming scientific agreement that human activities are changing the global climate system and that these changes are already affecting human and natural systems. Significant advances in climate change detection and attribution science—the branch of science that seeks to isolate the effect of human influence on the climate and related earth systems—have continued to clarify the extent to which anthropogenic climate change causes both slow onset changes and extreme events. Attribution science is central to recent climate litigation, as it informs discussions of responsibility for climate change. Climate science also plays a central role in policymaking and planning, particularly where decisions need to be made about how to allocate the costs of mitigating and adapting to climate change. This Article describes the role that attribution science has played in recent litigation as well as policymaking and planning activities, and discusses future directions in the law and science of climate change attribution, addressing questions such as how attribution science can better support policymaking and help resolve questions of liability and responsibility for climate change.

Externalities and the Common Owner

by Madison Condon

This Article expands the consideration of the effects of common ownership from the industry level to the market-portfolio level and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change-related activism of institutional investors, who have applied coordinated shareholder power to pressure fossil fuel producers into substantially reducing greenhouse gas emissions.

Another Game Changer in the Making? Lessons From States Advancing Environmental Justice Through Mapping and Cumulative Impact Strategies

by Charles Lee

This Article focuses on lessons learned by the author from state practice in environmental justice mapping and screening, and their relationship to addressing the central issue of cumulative impacts.

Zombie Energy Laws

by Joshua C. Macey

This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. The Article argues that these legal rules have become “zombie energy laws," and that the Federal Power Act, which instructs the Federal Energy Regulatory Commission to maintain “just and reasonable” wholesale rates, can plausibly be read to mitigate—and, in some cases, eliminate—the market distortions caused by zombie energy laws.

In the Courts

Connecticut climate liability suit remanded to state court.

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In the Courts Archive


In the Agencies

EPA reverses changes to Environmental Appeals Board.

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In the Agencies Archive


In the Congress

Congress disapproves 2020 methand rule rollback.

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In the Congress Archive


In the States

Florida proposed to add striped newt to its list of endangered and threatened species.

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In the States Archive