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.
