418 research outputs found
Torquing the Levers of International Power
The world is now at its climate’s “tipping point” at a precipice to redress global warming; after which our ability to halt a climate temperature rise below 2 degrees Centigrade (3.4 degrees Fahrenheit) is deemed unreachable. How to arrest the fast-accelerating accumulation of long-term carbon in the atmosphere is the legal and environmental challenge of the 21st century. It involves intelligent implementation of legal mechanisms, not technical fixes. Governments must quickly torque the levers of international power, but U.S. courts are finding some of these levers unconstitutional.
This Article identifies, compares, contrasts, and torques the levers of international power. Sustainable development and continuation of world civilization in the manner we know it depend on effective and intelligent regulatory use of these comparative levers of power, and creation of legal space to do so.
Part II of this Article explores why electric power forms the critical crucible in which climate, policy and law now mix. Part III examines the legal implications of feed-in tariffs, which European and other world nations employ to promote renewable electric power. Comparing U.S. to international experience, Part III then analyzes why these same techniques have been held unconstitutional in the U.S. when implemented by states. And even though legal in Europe, Part III examines the financial loss that has resulted from Germany’s, Italy’s, and Spain’s misaligned positioning of this lever of power.
Part IV examines the alternative levers employed in the majority of U.S. states to promote renewable energy deployment: renewable portfolio standards and net metering. These are legal if carefully designed. However, the specific programs in several states have been found by federal Circuit Courts to violate the Constitution. A series of recent legal challenges has resulted in states having to legally remake their programs. Part V strategically manipulates these key international levers of power for the developed and developing countries of the world
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Against the Wind—Sustainability, Migration, Presidential Discretion
The weekend before Christmas 2018, the United States government began its longest shutdown in history, which extended well into the new year. The crisis was the result of the ongoing legal controversies surrounding migratory rights and U.S. immigration policy, and following the shutdown, President Trump declared a national emergency at the southern border. The executive branch has a constitutional responsibility to enforce all U.S. laws. However, while the Trump administration has focused pointedly on executive branch enforcement of immigration and migratory laws at the southern border, it has made no effort to enforce an international treaty and three long-standing U.S. statutes protecting migratory birds.
More than one thousand species of birds are legally protected by U.S. law, making it a criminal felony, punishable by up to two years jail time and fines of up to one-quarter million dollars, for killing even a single migratory bird. Despite these harsh penalties, hundreds of thousands of these statutorily protected birds are killed by wind power turbines in the U.S. each year.
Wind power, however, is an indispensable tool to address global climate change for a multitude of reasons. For instance, wind power is an essential technology to reduce U.S. greenhouse gas emissions and to meet the goals the U.S. previously pledged as part of the international Paris Agreement of 2016. Wind power does not emit either carbon-dioxide (“CO2”) or methane into the atmosphere, nor does it contribute to climate change. Further, wind power has been the leading source among all new electric power technologies installed in the U.S. for the past decade, and wind power is now cost-competitive with most other means of power generation. The U.S. Department of Homeland Security has also identified sixteen critical infrastructure sectors in the United States, each of which depends fundamentally on a stable power supply, a requirement that can be bolstered, if not achieved, by wind.
Creating legal and economic implications for the power sector, the Trump administration announced its unilateral executive policy not to enforce the Migratory Bird Treaty Act (“MBTA”), a century-old statute that implements an eponymous treaty protecting migratory birds. The cessation of legal enforcement of the MBTA will decrease the costs of wind facilities, as the MBTA makes the killing of a single bird on any day a felony crime.
There is now a yin and yang for wind power. Civil law is populated with important state and federal economic and legal incentives for wind power generation and infrastructure transition. Yet, federal investment tax incentives are currently being phased out and the newest tax regime is not nearly as supportive. In a parallel legal realm, criminal law creates an elevated risk for the decidedly modest number of wind turbines that kill an estimated one-quarter million protected birds annually in the U.S. There is a temporal mismatch between these federal criminal statutes, a transitory policy which does not enforce those laws, and civil law incentives for the industry.
However, this criminal risk for wind facilities is not static; it changes with different occupants of the executive branch which enforces federal criminal law. There is an added dimension when the technology involved is not a mere substitute commodity, but is critical to mitigate global climate change. This confluence of competing factors requires reconciliation by legislative change, regulatory clarification, or judicial determination. This Article navigates several layers of this emerging technology- species conflict and its counterposed statutory objectives to chart a new direction in U.S. law
The Failure of International Global Warming Regulation to Promote Needed Renewable Energy
Renewable power generation technologies exist today and comprise the foundation for the bridge to a sustainable international power generation infrastructure. However, the Kyoto Protocol (Kyoto) has failed to utilize these technologies. Kyoto also missed the forest for the trees: it disallowed forest preservation to count in its carbon currency. It also missed including the correct chemical base in developing countries. This Article examines what led international law not to focus on development in renewable power alternatives where they are most required in the international order: developing nations. It analyzes the critical role of international multilateral organizations to create the new architecture of carbon control before it is too late. This Article concludes by highlighting a little-noticed template for renewable power and carbon mitigation success that has been demonstrated in several developing countries. It highlights the changes to Kyoto and international law that are necessary to construct a bridge to the development of sustainable power generation infrastructure
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