Environmental Law

Easy Come, Easy Go: A Guide to California Cap-and-Trade Spending – Note by Jonathan Kintzele

At the time of this writing, over $1.4 billion of unallocated polluter regulatory fees collect dust in a special government bank account as California agencies labor to figure out how to spend it, or more accurately, how to spend it fast enough. While state agency pockets smolder with anticipation, one inconvenience stands in their way: the cash must be used for programs or developments that reduce greenhouse gas (“GHG”) emissions. Thus, as lawmakers toil through the night to engineer new and creative spending proposals—ink dripping from the gold-embroidered parchment—the words “emission reductions” continue to get lost between nouns, verbs, exclamations points, and dollar signs.

Simply put, putting a price on carbon emissions has never been more lucrative for the State of California. Polluter fees not only fund the State’s climate change agenda, but also serve as the fiscal linchpin of the Governor’s statewide budgetary plan, from affordable housing development subsidies to the State’s herculean $64 billion bullet-train project. California has never been a state fearful of taking controversial positions on private property rights and protecting the public welfare, but with cap-and-trade, the entire world is watching.

California is the twelfth largest GHG producer in the world and the original American cap-and-trade pioneer. On January 1, 2013, the state implemented the most complex market-driven environmental regulatory scheme of its kind ever put into action. California’s cap-and-trade program was designed to be a model which not only other states in the western United States could follow, but one that could eventually be replicated in developed economies across the world in the global movement to reverse centuries of unrestrained GHG pollution. As a bona fide experimental prototype, the importance of getting the system right cannot be overstated. However, as a concept-in-progress that regulates the sixth largest economy in the world—greater than the likes of Italy, Russia, and India—understanding its contours and evolving mandates could not be more important to the businesses and industry practitioners that are subject to its control. As such, this Note will analyze the practical components of the cap-and-trade program, assess the potential legal risks of current spending trends, and ultimately recommend additional, apt, and effective appropriation vehicles for cap-and-trade revenue.

Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture – Note by Kristen L. Johns

Fish might be considered “brain food,” but there is nothing smart about the way the United States currently manages its seafood production. Although the U.S. government has long promoted the health benefits of products from the sea—even urging Americans to double their seafood intake—it has fallen far behind in developing a domestic source for this seafood. Currently, the United States relies on an almost primitive method for domestic seafood production: taking animals found naturally in the wild. However, this approach is no longer sustainable: most federally managed capture fisheries are either stable or declining, with forty-eight currently overfished, and forty subject to overfishing in 2010. What seafood the United States does not take from its own fisheries it imports; in 2011 the United States imported as much as 91 percent of its seafood supply. Fortunately, there is a way for the United States not only to ease the pressure on traditional fisheries—allowing them to recover—but also to provide a significant domestic source of seafood products: through the development and promotion of its domestic offshore aquaculture industry. However, this industry should not be allowed to expand free from regulation, as offshore aquaculture may have serious consequences for both marine and human environments.

LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy – Note by Kaleb Keller

There is a movement afoot in this country to “go green,” and part of this movement is in green building. Green building is summarized as “the practice of increasing the efficiency of buildings and their use of energy, water and materials, and reducing building impacts on human health and the environment through better siting, design, construction, operation, maintenance and removal.” So, why are we seeing a move to “go green” in building? According to a 2009 study commissioned by the U.S. Department of Energy (“DOE”), in 2006, buildings in the United States accounted for 39 percent of primary energy consumption, 72 percent of all electricity consumed, and, in 2005, over 10 percent of total water used domestically. Buildings in the United States accounted for more energy use than the entire U.S. transportation sector in 2006 and produce more greenhouse gases than “any other country in the world except China.” Any large-scale attempt to reduce U.S. energy consumption must therefore involve greening building practices.

Climate Change and Future Generations – Article by Richard L. Revesz & Matthew R. Shahabian

Efforts to reduce greenhouse gases and control climate change implicate a wide range of social, moral, economic, and political issues, none of them simple or clear. But when regulators use cost-benefit analysis to evaluate the desirability of climate change mitigation, one factor typically determines whether mitigation is justified: the discount rate, the rate at which future benefits are converted to their present value. Even low discount rates make the value of future benefits close to worthless: at a discount rate of three percent, ten million dollars five hundred years from now is worth thirty-eight cents today. Thirty-eight cents is therefore more than we would be willing to pay now to save a life in five hundred years. Discounting over very long periods, like in the context of climate change, has long perplexed economists, philosophers, and legal scholars alike. This Article evaluates the four principal justifications for intergenerational discounting, which are often conflated in the literature. It shows that none of these justifications support the prevalent approach of discounting benefits to future generations at the rate of return in financial markets and, more generally, that discounting cannot substitute for a moral theory setting forth our obligations to future generations.

The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada – Note by Jeremy Lawrence

Scientists have reached a consensus that global warming is a looming threat. A surprisingly large number of national politicians are lagging behind. The U.S. federal government, though making some strides toward reducing national greenhouse gas (“GHG”) emissions, has only addressed the problem in a piecemeal and halting fashion. In its place, the states have taken the lead. In Canada, the provinces have likewise taken the initiative in the face of federal inaction.

In light of these locally driven efforts, it was only a matter of time before states and provinces began to collaborate in their efforts. The first of these cross-border efforts originated in 2007, when the Western Climate Initiative (“WCI”), originally a GHG reduction partnership between a number of governors in the western United States, added British Columbia and Manitoba to its ranks.

But there is an apparent barrier to such cross-border collaboration. As the U.S. Supreme Court noted in its most recent case on global warming, “When a State enters the Union, it surrenders certain sovereign prerogatives. . . . [I]t cannot negotiate an emissions treaty with China or India.”

NEPA and CEQA: Effective Legal Frameworks For Compelling Consideration of Adaptation to Climate Change – Note by Katherine M. Baldwin

As the subject of global climate change occupies an increasingly prominent position in the current social and political discourse, competing voices clamor to predict the future effects of climate change and to propose solutions. While some environmentalists press the public to imagine catastrophic scenarios in which large cities will be inundated with rising seas or landscapes will be parched by persistent drought, some skeptics urge business as usual, insisting that no evidence unequivocally substantiates the existence of global climate change. How should the public react to these varying attitudes? On the one hand, drastically cutting the greenhouse gas (“GHG”) emissions known to cause climate change and enacting every possible precaution to protect against its impacts may be expensive and involve sacrifices in the near term that might ultimately prove unnecessary, given the uncertainty surrounding the future effects of climate change. On the other hand, failure to take action could result in devastation to the human community, irreversible damage to the environment, and astronomical expenses incurred to repair both. Perhaps, both views merit consideration, and the reality lies somewhere between these two extremes. Questions remain, however, concerning how communities should evaluate information regarding the projected impacts of climate change and which adaptive measures offer the best protection from its effects.

Climate Change: The China Problem – Article by Michael P. Vandenbergh

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China’s emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process in the United States, result in a mutually supportive but ultimately destructive dance between the two countries. This Article argues that a post-Kyoto international agreement and other measures are necessary but will not create sufficient incentives to induce China, and ultimately the United States, to act. Instead, the Article draws on the fact that the United States and Europe account for 41% of Chinese exports to propose a novel means of changing both countries’ incentives. The article suggests that private or public schemes in the United States and Europe to disclose product carbon emissions and corporate carbon footprints can create consumer and other pressure that will induce firms to impose supply-chain requirements on Chinese and other suppliers. This form of global private governance can create market-based incentives for China and the United States to reduce emissions directly and to make credible emissions-reduction commitments in the post-Kyoto era.

Climate Change – The New “Superwhale” in the Room: International Whaling and Climate Change Politics – Too Much in Common? – Article by Cinnamon Carlarne

This Article explores parallels between the development of the international whaling and climate change regimes. It argues that the experiences of the International Whaling Commission (“IWC”) provide an instructive parable to the evolution and development of international environmental law regimes, where successful policies depend heavily on the interplay between science and policy – namely, global climate change. The Article aims to demonstrate the similarities between the historic path of whaling politics and the present path of international climate change politics, with particular reference to the political interpretation of science. This Article argues that international climate change policymaking is following too closely in the footsteps of the IWC and that, in order to avoid a similar collapse of the commons, the politics of climate change must change course.

The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation – Note by Jordan Raphael

Smokers who plan to smoke in public probably should avoid doing so in Calabasas, California. On March 17, 2006, the city’s smoking ban – the most restrictive in the nation – went into effect, prohibiting smoking virtually anywhere that another person could be exposed to secondhand smoke. The designated nonsmoking areas include bars, restaurants, stadiums, parks, and even streets and sidewalks. The Calabasas ordinance is enforceable by the city attorney or, alternatively, by “private enforcers,” private individuals filing civil suits on behalf of themselves or the general public. To avoid the various penalties that the ordinance imposes, smokers must seek out special smokers’ outposts or light up at least twenty feet away from nonsmokers or others who might potentially be offended by secondhand smoke.

Beyond Tort: Compensating Victims of Environmental Toxic Injury – Article by Albert C. Lin

Environmental toxic tort cases often pose difficult problems of proof A substance’s toxicity may be unknown or uncertain. A combination of factors may cause a plaintiffs injury, and the injury may arise many years after a plaintiff’s exposure to a toxic substance. On the one hand, some plaintiffs, particularly those with “signature” illnesses or whose illnesses occur as a cluster of cases, may be able to gather sufficient evidence to support a tort action. On the other hand, it is likely that many environmental injury victims simply fail to recognize their illnesses as tortious injuries and never receive compensation. Cancer and various respiratory ailments, for instance, can resultfrom exposure to commonly found and commonly released pollutants. Because of the difficulty of identifying potential defendants and proving causation, such cases simply fall outside of the tort system. This leaves social costs externalized and victims uncompensated.

In response to this problem, this Article proposes a risk-based administrative system of liability and compensation for exposure to environmental pollutants. At the time pollutants are released, major pollution emitters would pay levies. The levies would be based on the amount of pollutants discharged, the likely exposure of persons to those pollutants, the risk of harmfrom that exposure, and the expected costs of that harm to the victims. Individuals would receive compensation according to the health risk borne by each person as a result of their exposure to the pollution. This compensation-for-risk approach avoids troublesome case-by-case determinations of specific causation. This approach also provides compensation prior to illness, which may facilitate preventive measures. Although the scientific information necessary to support such a system is not yet available, advances in toxic ogenomics, biomonitoring, and environmental monitoring will permit implementation of such a system in the not-too-distantfuture.