In recent years, foreign investors in the coal sector have challenged host States' coal phase-out measures under international investment law, claiming that these measures violate their investment treaty obligations. This has led to criticism of international investment law as chilling climate action. This Article proposes to resolve the conflict through a contextual interpretation of foreign investors' legitimate expectations by taking into account the nature of climate transition. The Article suggests that investment tribunals adopt this contextual interpretation offoreign investors' legitimate expectations when interpreting the indirect expropriation and fair and equitable treatment (FET) standards, and proposes a two-step approach: First, host States should comply with specific commitments made to foreign investors regarding their coal phase-out schemes; second, in the absence of such commitments, host States' phase-out measures should not be deemed a violation of investment treaty obligations unless they discriminate against foreign investors. The Article explains how this approach can be implemented in investment arbitration to achieve a balance between climate and investment interests.
Regulators have long faced the challenge of enforcing extensive legal requirements with resources that are wildly inadequate to the task. Even in the most hospitable legal and political climate, it is inherently difficult for regulators to deploy sufficient resources to monitor and enforce compliance with broad statutory mandates and extensive bodies of rules. Legal and political hostility to regulation further diminishes regulators' capacity to enforce the law. In contexts where legal requirements far outstrip an agency's enforcement capacity, regulators must wrestle with the question of whether it is possible to persuade regulated individuals and entities to comply with law when they face vanishingly low odds of being the target of enforcement activity.
Imagine walking through a suburban neighborhood when, suddenly, you spot a power plant situated between two homes. This disruption of a uniform zoning scheme is rare, as nearby residents could have claimed the zoning decision permitting this power plant's construction constituted "spot zoning."Claims of spot zoning, defined as the detrimental rezoning of a small piece of land contrary to its uniform surroundings, protect uniform residential and rural communities from environmentally harmful industries. However, uniformly zoned areas are overwhelmingly wealthy and white due to racist and classist land use policies that concentrate polluting industries in low-income communities of color. This Article therefore posits that spot zoning claims, as utilized today, effectively push harmful industries away from wealthier, whiter communities to these frontline communities. We support this assertion by analyzing every electronically available spot zoning claim-an overdue and imperative effort given the unprecedented number of spot zoning claims litigated in the past five years. The results indeed indicate that spot zoning claims are overwhelmingly brought in whiter, wealthier communities to keep out polluting industries and, accordingly, leave frontline communities without the same legal redress. We do not advocate for outright elimination of spot zoning claims, as they prevent the siting of heavily polluting industries in populous areas. Instead, we explore the underlying implications of all spot zoning claim criteria to explain how land use practitioners and reviewing courts could curb these trends without violating stare decisis. Relaxing the uniformity requirement for historically marginalized communities, contextualizing a rezoned parcel's size based on its rural or urban environment, and other substantive changes to the doctrine could allow spot zoning claims in areas traditionally excluded from these considerations.
Across the United States today, water compacts-legally binding agreements between states that apportion a river's water usage- allocate much of our nation's water. However, Native American tribes, despite having some of the most senior water rights in the country, have never been accounted for in water compacts. As a result of being entirely excluded from water compacts, tribes have faced significant water shortages and have spent years trying to get their fair share of water. However, a recent Supreme Court case, Texas v. New Mexico, may provide tribes an avenue to finally assert their water rights claims in water compacts. In the case, the Court held that the federal government was allowed to independently intervene in a dispute over a water compact between two states and, once the government had intervened, the states involved in the original compact dispute could not resolve their claims without the federal government's consent. Texas v. New Mexico, then, may open up a pathway for tribes to assert their water rights claims in future water compact disputes. If two states began litigating over a water compact that had long ignored Native American water rights, could a tribe intervene in the dispute in the same way the federal government did? And, if so, could the tribe also prevent the states from resolving the dispute until the compact was amended to account for the tribe's water rights? This Note answers both these questions in the affirmative, arguing that, while it is far from guaranteed, Texas v. New Mexico may present tribes with a unique way to finally see their water rights addressed in water compacts.
Across the United States, small communities host nuclear power plants within their borders, welcoming the plants as a source of tax revenue and employment. Then one day, whether due to expiring licenses or external factors, the nuclear plants shut down. In the wake of the shutdown, nuclear closure communities experience economic hardships as they are forced to cut their budgets and increase residents' taxes to make up for this significant loss of revenue. The ADVANCE Act, a recent piece of federal legislation that aimed to facilitate development of new nuclear power plants by streamlining the permitting process for next-generation reactors, could have eased these economic hardships. In its original draft, the ADVANCE Act contained a provision that would have funded economic development for and community engagement with nuclear closure communities. But in the final version of the ADVANCE Act that was signed into law on July 9, 2024, the nuclear closure communities provision was gone. The ADVANCE Act was a recent installment in a pattern of federal legislation that fails to address nuclear closure communities' needs. This Note examines past failed federal legislation to investigate why the ADVANCE Act may have lost its nuclear closure communities provision. This Note also discusses why nuclear closure communities deserve support, drawing parallels between the economic devastation that nuclear closure communities experience and the similar circumstances coal communities face in the aftermath of their respective power plants' closures. Finally, this Note considers how shortcomings of past support programs can inform improvements for future nuclear closure community funding programs. Recommendations for future programs include permanent and noncompetitive federal grant programs, robust state support, and community advisory boards with oversight authority over the decommissioning process.
Since 2017, U.S. states, municipalities, tribes, and cities have sought billions of dollars in damages from oil and gas companies for the environmental harm they have caused by their fossil fuel activities. This subnational government-led litigation campaign seeking to hold fossil fuel companies accountable is a meaningful step in the fight against the growing climate catastrophe. At the same time, it raises complex legal and ethical questions that have received scant attention. As this Article illustrates, the fragmentation of global climate harm into individual lawsuits, in which each local government seeks damages for its own mitigation and adaptation costs, could lead to a "first-sue, first-served" climate finance regime. And while U.S. states have launched their judicial battles for redress, developing countries-which are least responsible for carbon emissions yet are the most climate-vulnerable-are likely to fall last in line. The urgency to secure funds to mitigate and adapt to climate harms is exacerbated by the limited success of international negotiations, which have thus far failed to provide developing countries with adequate financial guarantees. This Article explores the benefits and risks of this litigation effort, the responsibilities of wealthy subnational litigants toward developing nations, and how applying new approaches to climate litigation awards could better align domestic litigation with international climate justice.
In the West, the benefits of electricity market regionalization appear more attractive than ever. "Regionalization" refers to efforts to expand coordination between Western states to buy and sell wholesale electricity through centralized federal power markets. Increased coordination made possible through regional transmission organizations (RTOs) has the potential to enhance grid reliability while reducing costs and emissions. RTOs are independent non-profit organizations that operate the grid and oversee the operation of centralized only RTO in the West, is expanding the geographic territory of its existing federal power markets from most of California and parts of Nevada into additional Western states. In the long term, Western states have started collaborating on a vision to form a new multi-state RTO in the West. However, while regionalization offers many benefits, it also comes with legal and policy risks for states. CAISO and all RTOs, including a potential future Western RTO, fall under the jurisdiction of the Federal Energy Regulatory Commission (FERC) and are subject to federal jurisdiction related to electricity markets and other RTO operations. A survey of over four hundred recent FERC and federal circuit court cases dealing with jurisdictional concerns, conducted during research for this Article, illuminates three key risks to state authority that could arise from regionalization: federal jurisdiction may interfere with state clean energy policy, restrict states' control over in-state energy resources, and preempt state law. The Article analyzes each of these risks in the context of Western regionalization and concludes that none pose a significant threat to state authority. Based on these findings, this Article concludes that Western states do not face a significant risk of losing their authority over state electricity decisions if in-state utilities join one of the CAISO markets or take part in a future multi-state RTO. While each state must conduct a case-by-case analysis of the risks of regionalization, this analysis indicates that the risks likely do not outweigh the potential benefits to grid reliability, ratepayers, and the climate.
Water moves over the earth according to the hydrologic cycle and can be best understood as an integrated system. However, the law often artificially segregates the hydrologic cycle into its component parts for regulatory purposes. The Clean Water Act is an example of a statute which separates water quality-which is regulated jointly by the federal and state governments-from water quantity, which is regulated by the states. This distinction is especially important in the Western United States, which is experiencing enormous challenges in satisfying the water needs of a growing population during a historic drought complicated by climate change. The Supreme Court's recent decision in Sackett v. EPA, which further restricted the scope of waters covered by the Clean Water Act, will make state management and allocation of water quantities more complex, despite the Clean Water Act's clear policy of preserving water quantity regulation for the states. Most legal scholarship addressing the Supreme Court's Clean Water Act jurisprudence analyzes the effect of those decisions on protecting water quality. This article takes a unique perspective on how the recent Sackett decision will impact water quantities in the arid West. This is because the Supreme Court in Sackett categorically removed Clean Water Act protections for irregularly flowing ephemeral and intermittent streams. As a consequence, these streams will be exposed to development pressures without being subject to the U.S. Army Corps of Engineers' section 404 permitting program (regulating the discharge of dredge or fill material into waterways) or any other federal oversight. While the value of ephemeral and intermittent streams has been discounted by the Supreme Court, they provide much of the flow of water to both groundwater aquifers and to perennial streams and rivers. Strangling these smaller streams will choke off water to larger downstream rivers and aquifers, which function as the source for most water rights claims in the arid West. This Article will discuss how the Sackett decision has made these water resources vulnerable to exploitation and, in an ironic turn of events, has transformed a decision aimed at restoring state authority to manage water resources to one that may significantly impair the states' right to allocate water quantity to their citizens.
This Article explores the burgeoning fields of artificial intelligence and bioacoustics and their potential to reshape nonhuman animal law. Historically, Western science dismissed nonhuman animal vocalizations as simple and lacking complexity. However, recent advancements in recording technology, artificial intelligence, and interdisciplinary collaborations have revealed that many species, from whales to honeybees, possess sophisticated communication systems. Pioneering projects, like Project Cetacean Translation Initiatives' (CETI) work with sperm whales, are challenging long-held assumptions about animal communication and opening the door to new legal and ethical considerations. This Article examines the legal implications of understanding nonhuman animal communication by asking: If these initiatives succeed, how might the legal terrain be reshaped? Proving that cetaceans possess linguistic capacities would challenge the notion that language is exclusive to humans and could reshape legal frameworks, as seen in past reforms following discoveries about great apes. By demonstrating what is already possible, we set the stage for the forward-looking analyses that considers the impact of understanding the content of cetacean communication. Current knowledge about cetacean suffering and needs has been insufficient to fully protect them from human-induced harms, but understanding the content of communication could offer profound insights into their behavior, suffering, and social life, in ways that enable legal change. Insight into communication content could improve regulation of chronic underwater noise pollution under existing laws, catalyze new rights for cetaceans, and spark a fundamental transformation of the station that cetaceans occupy under the law-from property to legal personhood. While this Article focuses on the nonhuman animal whose communications have been most studied, it aims to illuminate the legal implications of the growing number of studies on various nonhuman animals- from birds to elephants and countless others. We invite you to explore this emerging legal landscape with us.
As atmospheric carbon dioxide concentrations continue to rise, policy makers increasingly are turning to carbon dioxide removal (CDR) to help respond to climate change. CDR techniques, such as afforestation and soil carbon sequestration, remove carbon dioxide from the air and store it underground or in an inert form. One technique, direct air capture and storage (DACS), has attracted particular interest because of its potential to permanently store large quantities of carbon. Although DACS's energy requirements and high costs have limited its deployment to date, planning and construction efforts rapidly expanded in recent years, thanks to generous government support. However, DACS facilities are not always welcomed by local communities or environmental advocates because of safety and environmental concerns. This Article evaluates the adequacy of public engagement with respect to overall CDR policies as well as the siting and operation of individual DACS facilities. Public engagement efforts so far have focused on individual DACS projects and have largely been absent from broader CDR policy making. However, insufficient engagement on CDR policies not only undermines individual projects but also threatens long-term decarbonization efforts. Policy-level public engagement is needed to facilitate a just energy transition, determine suitable CDR pathways, and identify CDR locations and activities with public support. Furthermore, project-level community engagement can provide a social license for specific DACS projects and address environmental and safety concerns.
This Article argues that the Bipartisan Infrastructure Law (BIL) and Inflation Reduction Act (IRA) were less likely to reduce U.S. greenhouse gas emissions than believed when enacted, and that a misconceived narrative of spending effectiveness undercut the perceived urgency of further legislative action on climate change in the United States. With the passage of BIL and IRA, the United States committed to a climate law strategy predominated by public spending instead of regulatory mandates. Prominent studies of the laws' impacts, including studies produced by the U.S. federal government, predicted that this spending would push U.S. annual greenhouse gas emissions down to as much as 45 percent below 2005 levels by 2030, which would have been extraordinary progress if true. But these predictions were based on modeling that has a very poor predictive track record and assumes away many of the real-world constraints that BIL andIRA's spending programs faced. This Article undertakes an in-depth examination of one such model, explores how modeling influenced discourse around BIL and IRA, demonstrates that this discourse failed to acknowledge known barriers to BIL and IRA's effectiveness, and posits that the resulting narrative of effectiveness impacted the outlook of further climate legislation in the United States. This Article proposes that greater care be taken in the communication of energy-economic modeling results, that BIL and IRA should be evaluated as elements of a larger climate policy portfolio encompassing both constraining and spending policies, and that BIL and IRA did not obviate the need to continue pushing for further national climate legislation in the United States.
Just over four decades ago, the California Supreme Court fused the state's emerging public trust doctrine with its intricate water rights system in the watershed Mono Lake decision. Perhaps most notably, the ruling allowed for the reevaluation and reduction of older water rights to protect public instream water uses. The decision rippled throughout other Western states, and scholars continue to grapple with its implications for water rights. Through a state-by-state review, this Article explores the diverse state responses to the public trust doctrine. We draw several conclusions based on our analysis. First, this remains a tremendously active area of legal development; the trust is not a historical artifact. Second, states show significant variation in the way that the public trust relates to water law, and the path a state might take is very difficult to predict based on precedent. Third, because of this difficulty, federal courts should certify public trust questions to state courts to allow state courts to determine, in the first instance, what the public trust requires in that state. Fourth, the doctrine continues to play a significant role in preventing ossification of water law by invigorating the common law and providing flexibility for water reallocation by the state; this flexibility is likely to become ever more significant in light of climate change and changing social goals. Finally, we note an emerging convergent legal evolution toward the protection of public trust uses, although states use diverse mechanisms to achieve that goal. This overdue review provides valuable context for practitioners, scholars, and jurists wrestling with the integration of the public trust and water rights. The article sets the stage for the next forty years of water law evolution in the West
This Article sets out to expose and examine an overlooked dimension of environmental justice scholarship-the differential treatment of the working class. Specifically, the Article compares recommended exposure levels for various pollutants from the Occupational Safety and Health Administration recommended exposure levels apply to the workplace and are meant to protect the class of people who perform the (primarily hourly, blue-collar) labor. EPA exposure levels apply to non-workplace environments where people may be exposed to pollutants, including exposure in the ambient air and at home, and thus aim to protect everyone in America. History shows that the people working the hardest, least desirable jobs are knowingly subjected to higher levels of environmental risk. The federal government acts much more aggressively through EPA in non-workplace settings, and gives less attention and care to the pollution the working class confronts on a daily basis. This Article supplements a historical account with direct evidence of differential treatment.
The commercial and residential building sector accounts for 37 percent of U.S. energy consumption, making sector-wide decarbonization a key priority for combating climate change. Yet new building construction continues to ensure the future of nonrenewable energy by placing natural gas infrastructure between building walls instead of all-electric wiring. While many city and municipal governments began crafting building electrification regulations in recent years, a confluence of challenges threatens their progress. Resource-constrained local governments ultimately struggle to compete when well-resourced natural gas interest groups lobby and litigate against building electrification measures, creating both state and federal preemption hurdles for local laws. One recent Ninth Circuit decision, California Restaurant Association v. City of Berkeley, highlighted the complexity of these problems when the court federally preempted Berkeley's ban on natural gas piping in new buildings. The roadblocks faced by Berkeley and other localities raise the question: How can the United States alleviate local litigation burdens and bolster building decarbonization moving forward? This Note argues that Congress can and should pass new federal building electrification legislation to protect, incentivize, and accelerate local electrification efforts. First, this Note explores the potential to establish shortterm electrification incentives targeting on-the-ground construction decisionmakers. Second, this Note demonstrates how a long-term incentive should dovetail into the regulatory scheme, leveraging a cooperative federalism framework for disseminating electrification incentives to local governments and preempting state prohibitions on progress. This Note concludes by calibrating this twofold policy against the strengths and weaknesses of tangential federal policies, particularly the recently enacted Inflation Reduction Act.
Debates about textualism are now more practical than black-and-white arguments whether it is inadequate or the only true way to interpret law. This is likely because textualism is now the dominant method of interpretation on the U.S. Supreme Court. And yet, the textualist justices have begun interpreting environmental laws differently. Two current discussions help explain why. First is a methodological divide within textualism: flexible textualism versus strict ("formalist") textualism. Second is what Kevin Stack calls "the enacted purposes canon," which strict textualists use to resolve genuine textual ambiguities by staying true to textualism's principle of restraint. This Note first examines how textualism's plain meaning rule requires the enacted purposes canon. Next, it examines the Clean Water Act and its purposes section, which is ideal for interpretation under the enacted purposes canon because of its clarity, specificity, and comprehensiveness. Finally, it examines the conservative split in Sackett v. EPA, finding flexible textualism in Justice Alito's majority opinion and strict textualism in Justice Kavanaugh's concurrence. The Sackett example illustrates how interpreting the 1970s federal environmental statutes is the perfect test of whether textualism can work as intended: textualism's success depends on principledjudges'good-faith restraint and deference to legislatures.
In the United States, the production of hundreds of millions of tons of hazardous waste every year poses substantial harm to the environment and public health. While the Resource Conservation and Recovery Act (RCRA) defines what counts as hazardous waste and determines how it needs to be handled, states are free to set more stringent guidelines. California, known for surpassing federal environmental standards, has used a more expansive definition of hazardous waste. The result is a distinction between waste considered hazardous under RCRA (RCRA hazardous waste) and waste that is not considered hazardous under RCRA but is under Californias' definition (nonRCRA hazardous waste or "California hazardous waste"). Non-RCRA hazardous waste-mostly soil contaminated with heavy metals and DDT- accounts for 86.1 percent of hazardous waste produced in California since 2010. However, once California hazardous waste crosses state borders, it can be treated under federal law as regular municipal solid waste (MSW). According to a 2023 CalMatters investigation, California has exported almost half of its nonRCRA hazardous waste to Arizona and Utah MSW landfills in that period. This cross-border dumping echoes the problems that gave rise to the "garbage wars" of previous decades, in which states passed laws regulating out-of-state waste dumping. In almost every instance, the U.S. Supreme Court has struck down these laws as per se discrimination against interstate commerce in violation of the Dormant Commerce Clause (DCC). However, in the Courts' most recent DCC case, National Pork Producers Council v. Ross (NPPC), a fractured Court upheld Proposition 12, a California law banning in-state sales ofpork meat from pigs not raised in humane conditions under state law. In doing so, the Court rejected an "almost per se" rule against nondiscriminatory state laws whose practical effects regulate out-of-state behavior. On the flip side, for laws not deemed per se illegal under the DCC, the Court reserved its power to balance a state laws' putative benefits against its burdens on interstate commerce. By analyzing and applying the Courts' reasoning in NPPC, this Note makes two arguments. First, the majoritys' analysis of extraterritoriality in NPPC reinforces the case for overruling the previous "garbage cases" and refocusing the DCC on protectionism. Second, while California cannot directly regulate other states ' waste management practices, it ought to exert control over its own toxic waste, even after the waste crosses state lines. While such a regulation would still face challenges under the DCC, NPPC makes the outcome of those challenges less clear-cut. Given that California must produce a comprehensive waste management plan by 2025, this Note uses California hazardous waste as a case study to inform discussions of how the state should consider evolution in DCC jurisprudence when crafting new regulations with out-of-state effects.
In April of 2023, the Occupational Safety and Health Administration reviewed a petition brought by seven State Attorneys General urging the agency to issue an emergency rule addressing deadly workplace heat exposure. The agency acknowledged the acute hazards that heat poses to workers but decided against emergency intervention. A few months later, extreme heat waves garnered national attention, and President Biden faced sharp criticism for failure to take stronger action to prevent heat-related workplace deaths. This Article draws on the example of OSHA's consideration of an emergency heat rule to offer a new way of thinking about the use of emergency power by federal administrative agencies in the climate context. The Article adds to the emerging body of literature comparing the COVID-19 pandemic to the climate crisis and presents a new pathway for navigating existing debates over administrative agency decision making and democratic legitimacy surrounding the use of emergency powers. The Article then offers new recommendations for federal administrative agencies that may be called upon to deploy emergency powers to address the climate crisis in the future. The Article argues that agencies should begin compiling lessons learned from the COVID-19 pandemic now and proactively plan for climate emergency responses that will withstand judicial challenge. Overall, these recommendations are designed with a focus on community engagement as a means of protecting democratic legitimacy and yielding more impactful and equitable governmental responses.
