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This Month's News & Analysis

Volume 48, Issue 5 — May 2018

Articles

Gunderson v. State: The Indiana Supreme Court Strengthens the Public Trust Doctrine’s Potential for Conservation in the Great Lakes

by Jeffrey B. Hyman

The Indiana Supreme Court recently delivered a landmark public trust decision, Gunderson v. State, ruling that the state acquired and still owns Indiana’s bed of Lake Michigan below the ordinary high water mark, including exposed shores, and that it holds that bed in an inalienable trust for public uses. This is a unique decision for the Great Lakes region. This Article examines the legal background for the case, the conflicts and contradictory rulings that emerged as it travelled upward through the court system, and the ultimate resolution by Indiana’s high court. The Article also places the decision in the larger context of environmental conservation and public trust advocacy.

The “Relationship Premium”: Should Cost-Benefit Analysis Include the Value of Human Connections?

by David C. Kimball-Stanley

People care enormously about what happens to those with whom they are close. Nonetheless, standard cost-benefit analyses usually measure only direct impacts on individuals, as well as sometimes the abstract preferences people have about matters with which they have no connection. This ignores the indirect impacts of regulations on the loved ones of those directly impacted. This Article argues that these residual effects are more than mere opinions, but instead may result in distinct costs and benefits for the people who are indirectly impacted; more concretely, policies that could prevent the anguish of a parent, or create the pride of a sibling or spouse, ought to consider those effects if possible. This Article will examine if there is evidence that such “relationship premiums” exist, and address some of the implications and complications associated with including such costs and benefits in regulatory decisionmaking.

Legal Pathways to the Broad Use of Negative Emissions Technologies and Direct Air Capture of Greenhouse Gases

by Tracy Hester

Deep decarbonization will have to explore the use of negative emissions technologies (NETs), which include the direct air capture (DAC) of ambient carbon dioxide. NETs capture or consume more carbon dioxide than they emit, and DAC is a subset of NETs that use any industrialized chemical or physical methods to remove greenhouse gases from the atmosphere and then store or reuse those gases, typically in a way that does not allow them to escape. While still nascent, NETs include a wide array of approaches such as biomass energy with carbon capture and sequestration, enhanced weathering of minerals, and the direct mechanical capture of ambient carbon dioxide through filters and chemicals. This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI Press), focuses on the legal pathways needed to accelerate the development and use of NETs and assure their proper governance.

Comment(s)

Lessons From Ten Years of Household Recycling in the United States

by W. Kip Viscusi, Joel Huber, and Jason Bell

Recycling is perhaps the most prevalent pro-environmental activity at the household level. And while most states have some sort of statewide recycling laws, new recycling initiatives have not been prominent. Has recycling behavior stabilized or perhaps dropped in the current era in which there have been fewer new state recycling initiatives? To explore recycling trends and the factors related to these trends, this Comment uses a comprehensive national database covering U.S. recycling over a 10-year period beginning in 2005. This analysis reveals a number of important findings.

The Case for Corporate Action on Climate Change

by J. Kevin Healy and Bryan Keyt

Corporate America does not speak with one voice on climate change. On the one hand, hundreds of companies recognize the gravity of the environmental, social, and economic disruption that the majority of climate scientists are predicting, and are taking action to reduce their exposure to the financial risks of climate change, quantify and control their greenhouse gas emissions, and adapt to impacts either now occurring or just over the horizon. On the other hand, many companies seem content to follow the passive approach that the federal government is taking, apparently hoping that it is a false alarm being sounded by climate scientists. This Comment discusses why the time has come for the directors and officers of the major companies that have not yet come to grips with the issue of climate change to do so. Corporate directors and officers have a fiduciary obligation to be reasonably well-informed on material issues affecting their businesses. Due to the substantive work of the scientific community over the past two decades, a mountain of information has now accumulated regarding the nature and scope of the climate problem, and (with the assistance of internal and external experts) corporate managers can utilize that information in their strategic decisionmaking.

Annual Review of Chinese Environmental Law Developments: 2017

by Mingqing You

The year 2017 witnessed further development of environmental law in China. Environmental protection was affirmed in the 19th National Congress of the Communist Party of China (CPC) held in October 2017, and was stressed in various parts of President Xi Jinping’s report to this CPC Congress. In line with the environmental protection policies, the Standing Committee of the National People’s Congress revised some laws related to environmental protection, and the Supreme People’s Court also took some initiatives for environmental protection.

Dialogue

Green Finance: Leveraging Investment for Environmental Protection

by Michael Gerrard, Charles E. Di Leva, John Rousakis, and Douglass Sims

Governments, intergovernmental organizations, financial institutions, corporations, and nongovernmental organizations (NGOs) are examining green financing mechanisms in earnest. Financial institutions are enabling investment in green infrastructure, and many have signed on to the Equator Principles, a risk management framework for determining, assessing, and managing environmental and social risk in projects. NGOs and governments are promoting public policies that encourage investments in sustainability, and developing public and private mechanisms to facilitate investments in environmentally beneficial projects, such as the Paris Climate Agreement's Green Climate Fund. With targets including pollution control, biodiversity protection, and materials management, as well as investments directly related to decreasing reliance on fossil fuels, the impacts of green financing could reshape the landscape for environmental professions. On June 6, 2017, ELI held a public seminar to present recent developments in this field. Here, ELR presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

In the Courts

D.C. Circuit upholds 2012 CAA regional haze rule.

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In the Courts Archive

In the Agencies

EPA proposes new coal ash disposal rule.

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In the Agencies Archive

In the Congress

Senate passes bill expanding nuclear energy research.

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In the Congress Archive

In the States

Washington adopts GHG emissions standards for power plants.

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In the States Archive