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Ending Both Forms of Grandfathering in Environmental Law

October 2007

Citation: 37 ELR 10717

Issue: 10

Author: Edan Rotenberg

Editors' Summary: Grandfathering is a form of what some tax scholars call transition relief--the payment of compensation for a legal change. Grandfathered polluters and grandfathered emissions permits are both compensations for legal transitions, but the two are fundamentally different. In this Article, Edan Rotenberg defines the two types of grandfathering and exposes the problems these practices pose for environmental law. He begins with some definitions and an overview of compensation. He then questions the efficiency of these types of compensations and explores the political motivations and ramifications for compensation. He concludes by suggesting some possible alternatives to the two types of compensation regimes.

Edan Rotenberg is a J.D. Candidate, Yale Law School, and an M.E.M. Candidate, Yale School of Forestry & Environmental Sciences. He thanks Joshua Berman, Dale Bryk, Ralph Cavanagh, Nat Keohane, Douglas Kysar, Michael E. Levine, Erin Mansur, Derek Murrow, Lauren Rasmus, Susan Rose-Ackerman, Jenna Slotin, Ariel Tesher, and the Yale Environmental Law Association for comments, suggestions, and support. Despite the best efforts of the above, the remaining errors are the author's fault alone.

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