The Green New Deal and Green Transitions

In February 2019, Representative Ocasio-Cortez and Senator Markey introduced a Green New Deal Resolution in Congress, calling for a tenyear mobilization toward action on climate change, socioeconomic inequality, and other issues. A Green New Deal--evoking the language of FDR-erapolicy--envisions a transition to a green economy that is integrated with concern for the social and economic welfare of those who are most harmed by environmental degradation and those who are most likely to be displaced by the reinvention ofU.S. infrastructure and energy systems. This Article addresses the need for engaging with regulatory transition theory in order to assess the legal, policy design, and implementation challenges of a Green New Deal. Regulatory transition theory explains how economic, legal, and political pressures can lead to policies that are counterproductive, unjust, and inefficient. Key examples of this phenomenon are found throughout the core U.S. environmental-legal framework, which has been plagued by overly generous transition relief in the grandfathering of aging infrastructure and through other policies that differentiate between new and existing sources. This history provides important lessons for designing a Green New Deal around four principles: equity, efficacy, efficiency, and political coalition-building. Some solutions for transitions that can be effectively implemented may be intuitive but must overcome political economy challenges and legal barriers

Green Transitions in a COVID Economy

As many elements of a Green New Deal languished in Congress, economic policy took dramatic turns instead to address a different crisis: the Covid-19 pandemic. This Essay explores the way in which legal and policy responses to Covid-19 in the United States—particularly as discourse has focused on the impacts of Covid-19 response on labor markets—may provide insight into the political economy of a Green New Deal. New federal spending toward a just transition is structurally much easier to accomplish than developing new regulatory policy through legislation or executive action and avoids judicial policing of administrative authority

An Ecological Theory of Statutory Interpretation

Canons of construction serve as a set of ground rules that judges rely on in interpreting statutes. Substantive canons of construction, in particular, are principles and presumptions that point judges in a specific policy direction in order to serve underlying public values. Many of these substantive canons share a common justification: judges have developed them to mitigate threats of irreversible harm to vulnerable and underrepresented interests and to incentivize clarity in the legislative process. This Article argues that environmental interests—the interests of present and future generations in maintaining ecological conditions that support life—merit similar protection. Therefore, judges should employ an environmental canon of construction: whenever possible, statutes must be read in a manner that best promotes ecological integrity and sustainability for present and future generations. The Article examines several common substantive canons and concludes that environmental interests and values justify a similar canon. An environmental canon of construction also finds support in the National Environmental Policy Act (NEPA), which provides that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with” the environmental policies listed in the statute. Recognizing a substantive environmental canon would place ecological concerns on the same level, legally and rhetorically, with other fundamental rights and concerns—granting legitimacy to the consideration of environmental impacts in judicial reasoning and bringing our legal system in line with scientific understanding of our role and responsibility in an ecologically interdependent world

People of the Sun: Leveraging Electricity Reform to Promote Renewable Energy and Climate Change Mitigation in Mexico

Human activities that impact the Earth’s climate are driven, in large part, by energy consumption. Advancements in technology, infrastructure, and industry have been made possible by the use of fossil fuels. In recent decades, recognition of climate change and its causes has increased, coinciding with other, sector-wide transitions in energy generation and use. The interconnected nature of climate and energy issues calls for legal and regulatory frameworks that are better able to integrate these two concerns—effective broad-scale policy on climate must engage with the complex system for regulating energy, and forward-thinking changes in energy policy must address climate externalities on present and future generations. This article examines Mexico’s experience in its efforts to bridge these two policy areas. Since 2012, Mexico has pursued two parallel tracks in policy developments: the enactment of comprehensive legislation on climate change, and constitutional changes related to energy—specifically, the generation of electricity. In 2013, Mexico amended its Constitution to allow for competition in electricity generation, and legislation enacted in 2014 and 2015 have called for rapid restructuring of the country’s electricity sector and the creation of a new wholesale energy market. At the same time, Mexico’s General Climate Change Act of 2012 establishes ambitious goals for greenhouse gas reduction, including a transition to greater use of “clean energy.” The constitutional reform provides a significant opportunity—if appropriately leveraged—for Mexico to make policy changes that will enable the country to play a leadership role in integrating climate mitigation and energy regulation

Never Look Back: Non-Regression in Environmental Law

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so. Built in environmental legal frameworks in both international and domestic law is a principle of non-regression—no walking back environmental law, regulation, or protection once put in place. Governments and institutions at all levels ought to apply this principle in designing and implementing environmental governance, and judges, in their role of interpreting and applying the law, ought to incorporate the principle in their decisions and ensure the progressive realization of rights guaranteed by environmental law. This Article brings together a variety of expressions of the principle of non-regression in international treaties, trade agreements, declarations, and in domestic constitutions, statutes, and administrative law—within and outside the United States. Greater recognition of how this principle has worked in practice may be helpful in promoting the notion that, so long as environmental degradation continues to occur and threaten human well-being, environmental standards must continue to move forward, and never look back

Rotting Under the Bridge - How False Data is Polluting Administrative Rulemaking

In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch. The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation and any subsequent revision of administrative actions. False or misleading data in regulatory analysis, when unchecked, pollutes the regulatory process-and administrative decisions that rely on flawed data should be struck down as arbitrary and capricious. Despite their importance to the administrative process, the actual economic and scientific analyses that underlie cost-benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges. In this Article, we use the economic analyses accompanying the Trump administration\u27s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions, and as a vehicle to discuss approaches to accommodate this procedural need moving forward

Property Rights and the Environment: The Ecological Function of Property in Brazil

Article 225 of Brazil\u27s Constitution guarantees to all the right to an ecologically balanced environment and imposes a duty on both the government and society to defend and preserve [the environment] for present and future generations. This constitutionalization of environmental rights and duties has an important impact on property law inasmuch is it affects the relationship between private and public interests in the use of land and other natural resources. The right to private property is explicitly guaranteed in Brazil. However, this right is not absolute; under the Constitution, real property must fulfill its social function. Among other requirements listed for property\u27s social function is the appropriate use of available natural resources and preservation of the environment. Recent jurisprudence of the High Court of Brazil (Superior Tribunal de Justiça), Brazil\u27s highest court for interpretation of infra-constitutional federal law, applies these principles as an ecological function of property that imposes limits on private property rights. This Article analyzes several of the Court\u27s opinions that employ this line of reasoning, including a discussion of how the ecological function of property affects regulatory takings law and application of the country\u27s Forest Code. Ultimately, the Court\u27s opinions support the idea that in order to foster sustainable development, public and collective interests in natural resource use must be held above limited, private interests -- a hierarchy that has not existed historically, but that the Court now seeks to enforce

The Importance of Looking Under the \u27Administrative Hood\u27: A Case Study of the National Waters Protection Rule

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. However, despite their importance to the administrative process, the actual economic and scientific analyses which underlie cost benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges. Administrative decisions that rely on an improper use of data or on flawed data are likely to be arbitrary and capricious, which could void a rulemaking and/or provide support for its repeal or replacement.In this article, we use the economic analyses accompanying the Trump Administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions and discuss approaches for how to accommodate this moving forward