A Switching Costs Approach: EPA\u27s Clean Power Plan as a Model for Allocating the Burden of Carbon Reductions Among Nations

In Part I, this paper reviews the allocation plans that have been tried so far on an international scale and why they have not succeeded. In Part II, the paper explains EPA\u27s Clean Power Rule and what we are calling the switching opportunities approach that is at least roughly suggested by the Rule. In Part III, the paper discusses the two different cost-sensitive approaches adopted by the EPA under the Clean Air Act so far, and in Part IV, the paper discusses the basis for using the Clean Power Plan as a model and the advantages and disadvantages of scaling up the switching opportunities approach to the international arena

THREE OBSTACLES TO THE PROMOTION OF CORPORATE SOCIAL RESPONSIBILITY BY MEANS OF THE ALIEN TORT CLAIMS ACT: The Sosa Court\u27s Incoherent Conception of the Law of Nations, the Purposive Action Requirement for Aiding and Abetting, and the State Action Requirement for Primary Liability

The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court\u27s ahistorical and incoherent formulation of the law of nations fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts\u27 confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we argue that the law of nations should not be read so restrictively, that a purposive aiding and abetting standard should be adopted, and that the requirement of state action be minimized or eliminated altogether. These steps would go a long way toward promoting the very CSR considerations that many corporations involved in ATCA litigation have already espoused

Presidential Administration, the Appearance of Corruption, and the Rule of Law: Can Courts Rein in Unlawful Executive Orders?

Many of President Trump’s executive orders aimed to “deconstruct” the administrative state by exercising unprecedented control over agency action. While presidents have exercised directive authority over executive agencies for several decades, these recent directives are particularly troubling because many of them direct agencies to act contrary to congressionally mandated procedures designed to ensure that agencies engage in predictable, transparent, and justified decision-making. This phenomenon poses a threat not only to agency rulemaking but also to corresponding rule of law principles—all at a time when public confidence in government officials has steadily declined and more and more Americans perceive their officials as corrupt, untrustworthy, or otherwise unable to serve the public interest. With Congress unmotivated and unable to act, the Judiciary is the only branch left to check such potentially dangerous directives. This Article seeks to show why courts can and should adjudicate challenges to such problematic orders issued by current or future presidents, despite potential standing problems when orders are challenged directly, in order to promote the rule of law and democratic governance

Judicial Review in an Age of Hyper-Polarization and Alternative Facts

This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest how courts could, and should, consider any forthcoming dilution in the standards proposed by EPA. Part III takes up objections to our call for a less deferential judicial posture and, in particular, considers the objection that judges themselves may be hyper-polarized. Part III also considers whether judges simply lack the capacity to ferret out the difference between “alternative facts” and actual facts. We readily acknowledge that judicial detachment and competencies have limits but maintain that, overall, we all will be better off if judges take a genuinely hard look at agency policy shifts and thereby encourage agencies to operate in the shadow of such scrutiny. Such review could prompt agencies to ground their policy shifts in a considered account of why the available facts better support a new policy rather than the previous one and, if they cannot do that, to forego policy shifts. Alternatively, such review could lead agencies to disclaim a factual basis for their policy shifts and instead explain those shifts in terms of their values and ideology, inviting the courts to decide whether those values and ideology are permissible bases for changing policy under substantive statutes and the Administrative Procedure Act. We think either of these effects would be preferable to judicial rubber-stamping of agency decisions that are purportedly based on factual or technical criteria but in reality lack factual or technical justification

A Climate Change Lens on the Dormant Commerce Clause, Lifecycle GHG Taxes, and In-State RPSS Requirements

In this Article, we argue that what constitutes a like product for Dormant Commerce Clause purposes should be seen through a climate change lens. Without the climate change lens, some products may appear alike that are actually different in ways that directly implicate traditional state police power concerns. Lower federal courts have not yet embraced what we call the climate change lens. However, very few cases involving climate-change-related state legislation have been litigated, and there is indication in at least one recent federal appellate court decision that a climate change lens may be viable. Our goal here is two-fold: first, to show that a climate change lens can make us understand that some apparently discriminatory state treatment of like products is in fact differential treatment of different products, and, second, that there is precedential basis for courts adopting the climate change lens and hence a more deferential posture toward state climate change initiatives