Greening Demand: Energy Consumption and U.S. Climate Policy

The search for greener, less polluting energy supplies has dominated discussions of u.s. climate change strategy, but we often overlook cheaper and faster greenhouse gas emissions reductions achievable through energy efficiency and conservation. In this article, I outline a decade-long greening demand agenda to reduce the amount of energy consumed in the United States. The federal government should aim to reduce U.S. energy consumption by fifteen percent by 2016 and twenty percent by 2020 to achieve needed reductions in greenhouse gas emissions. While the United States has achieved notable efficiency gains since the 1970s, several market failures and other barriers continue to serve as obstacles to energy savings. These include principal-agent divergence, high implicit discount rates used in decision making on efficiency upgrades, and outmoded forms of utility regulation. I demonstrate how a greening demand agenda, centered on price signals, performance standards, informational tools, and changes in utility regulation can be used to overcome these barriers. Many of the challenges are technical and scientific, but law will play a central role in structuring incentives and shaping national markets for efficiency innovations. I conclude with some thoughts on the technical and political feasibility of greening demand

The Limits of Energy Efficiency Markets In Climate-Change Law

This Article examines whether market-based policies, deployed in many areas of environmental law, should be harnessed to promote energy efficiency. Several countries in Europe and Asia have experimented with this new approach to energy efficiency, establishing markets that involve mandatory energy savings targets for firms and inter-firm trading of certificates that represent quantified energy savings. Many analysts contend that these new markets can unlock overlooked opportunities for energy efficiency improvements and could be a critical policy tool for addressing climate change. After describing the rationale for these new markets and their operation in other countries, this Article concludes that the growing international support for energy efficiency markets is misplaced. I argue that market enthusiasts are overlooking problems of institutional design that complicate and weaken this new application of market principles in environmental law, and I demonstrate that energy efficiency markets face several hurdles that are likely to limit their role in climate change mitigation. The hurdles include accurately verifying energy savings, setting environmentally meaningful savings targets, and preventing what I call energy savings “leakage,” in which firms participating in the markets outsource energy intensive parts of their operations to non-regulated firms. These limits of energy efficiency markets call into question long-held assumptions about the superiority of market-based approaches in environmental law

When It REINS It Pours

Imagine if the board of a Fortune 500 company required the company’s vice presidents to obtain board approval before implementing any decision. Now imagine that the board is highly polarized and its members are at each other’s throats. A recipe for corporate gridlock, right? Amazingly, House Speaker John Boehner, Senator Jim DeMint, and other prominent Republicans are embracing this dubious chain-of-command for the federal government. They are promoting a bill called the REINS Act (Regulations from the Executive in Need of Scrutiny), which would stop any major regulation issued by any federal agency from taking effect until it receives approval from both houses of Congress and the president. Boehner justifies the bill as a “transparency” and “accountability” measure, but it clearly takes aim at the White House, which, with the GOP now in control of the House, is relying heavily on agency rulemaking to advance its agenda in areas such as health care, financial regulation, and clean energy. Since the Progressive era, U.S. administrative law has operated from the premise that agency action should be somewhat insulated from political pressure and horse trading. The REINS Act would mark a radical abandonment of that goal, an attempt to correct an oversight problem that doesn’t even exist. It would deliver a body blow to the already-sluggish agency rulemaking process by politicizing it and entangling it in the congressional morass. And, over the long term, it would do serious damage to American health and prosperity—stopping agencies from promulgating important rules that, among other things, would help prevent bank failures, ensure the safety of the food we eat, and control toxic pollution in the air we breathe

Toxic Floodwaters: Strengthening the Chemical Safety Regime in the Climate Change Era

Extreme flooding linked to climate change has caused toxic chemical spills across the United States, yet policymakers are not prioritizing industrial chemical safety in planning for climate change. Many scholars and industry executives have argued that existing private law mechanisms, such as insurance and tort-based deterrence, can adequately manage the risk of flood-induced chemical releases from industrial sites. But private law mechanisms have failed to prevent past incidents of mass contamination, and there is little evidence that tort law deters industrial firms from the practices that put communities at risk. In this Article, I engage in a comparative analysis of private law and public law approaches and conclude that the United States needs a robust effort, grounded in public law, to prevent toxic floodwaters incidents. The new effort should involve regulations and performance standards for chemical storage as well as other reforms to close gaps in toxic-chemical management statutes enacted nearly fifty years ago. These changes are necessary to make our chemical regulatory regime more protective as industry faces new risks from floods and rising seas

Can We Regulate Our Way to Energy Efficiency? Product Standards as Climate Policy

Alternative energy supplies get most of the attention in the climate change debate, but reducing energy demand should be the dominant strategy for cutting global greenhouse gas emissions. Dozens of technical studies have concluded that improving the efficiency of automobiles, furnaces, motors, consumer electronics, lighting, air conditioners, and other energy-using products is the cheapest and fastest way to achieve dramatic reductions in greenhouse gas emissions.\u27 In fact, avoiding catastrophic global heating largely depends on how fast energy efficient technology can be deployed over the next few decades. Energy efficiency can be promoted through multiple policies, such as energy taxes, a cap-and-trade system, tax credits for efficient appliances, product labeling, increased government research and evelopment ( R&D ), or direct regulatory limits on the energy consumption of products. Of these policies, the regulatory option seems most intrusive, as it limits consumer choice and requires complex governmental mandates that affect product design. While the other policies nudge consumers in the direction of efficiency, regulation commands energy efficient choices by forcing inefficient products off the market. In this Article, I demonstrate that the regulatory strategy for energy efficiency is working. Although information disclosure, financial incentives, and other softer alternatives to regulation play a vital role in reducing energy demand, these should be viewed as complements to efficiency regulation, rather than replacements. The regulatory approach has led to substantial cost and energy savings in the past, it has enjoyed bipartisan political support, and it targets products and behaviors that are difficult to address through other policy tools. Given the politics of climate change in the United States, which make federal carbon taxes or a cap-and-trade system infeasible, the regulatory option should be expanded, not abandoned

The Mescalero Apache Indians and Monitored Retrievable Storage of Spent Nuclear Fuel: A Study in Environmental Ethics

The proposal of the Mescalero Apache Indians of New Mexico to host a nuclear waste storage facility raised difficult questions about political sovereignty, environmental justice, and democratic consent. While the proposal had numerous drawbacks and deserved to be opposed, many of the arguments used against it were conceptually flawed and paternalistic. Arguments decrying bribery of a poor community were particularly weak, while those criticizing targeting of Indian tribes by the United States government and coercion of tribal members by the Mescalero leadership had more merit. The core ethical arguments should be separated from the rhetoric so that policy makers, Native Americans, environmentalists, and industry leaders can better evaluate similar projects in the future

Jumping the Pond: Transnational Law and the Future of Chemical Regulation

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States. Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a lack of toxicity testing and high statutory barriers to regulation have created a persistent data gap that has undermined public health and environmental protections. I then argue that the EU legislation offers a superior model for addressing chemical risks. The EU law makes toxicity testing a default requirement for thousands of chemicals produced or imported in Europe, encourages substitution away from hazardous chemicals, and shifts the burden of proof on the safety of the most hazardous classes of chemicals from government to industry. As a result of these innovations, this next-generation chemical regulatory regime rewards knowledge, rather than ignorance. In Part II of this Article, I shift to an analysis of transnational interactions in chemical regulation. I demonstrate that regulatory turbulence from the EU legislation- extraterritorial political, legal, and commercial effects-is already changing the political and informational terrain for chemical regulation in the United States. Information on chemical risks, disclosed in Europe, will close longstanding data gaps in the United States and will help build support for reform of U.S. law. Even if the United States does not enact major legislative reforms, its chemical marketplace will increasingly be governed by European norms. Chemical regulation is therefore a case study in how transnational law and global information networks are shaping the future of American environmental law

A Wrong Turn with the Rights of Nature Movement

Environmentalists have long dreamed of granting enforceable legal rights to nature, and their vision has recently become reality. Governments in the United States and abroad are enacting Rights of Nature laws, and many scholars have championed this burgeoning movement as one of the best hopes for preserving the environment.Legal rights for nature seem visionary, but policymakers and scholars are overlooking considerable problems with this approach. This Article spotlights these problems, including the vague and incoherent content of nature’s rights, the difficulty of defining the boundaries of natural entities, the absence of limiting principles for the rights, and the legislation’s lack of guidance for humans. Because the Rights of Nature movement relies on ad hoc litigation to enforce nebulous rights in court, it will likely lead to arbitrary and oppressive outcomes for humans while under-protecting nature. For these reasons, Rights of Nature is a wrong turn in environmental law and policy.While showing why the Rights of Nature project is likely to be ineffective and even unjust, this Article also examines possible reforms to make it palatable. I conclude that none of the reforms are workable. Rights of Nature offers a resonant battle cry for activists, but it is the wrong approach for addressing the global environmental crisis – and it could take us backward to a more polluted, degraded environment

Reinventing Fire: Making Energy Efficiency a Reality

Professor Sachs recounts his visit to Colorado\u27s Rocky Mountain Institute, a model of energy efficiency and sustainable design, in a larger discussion about the benefits of these practices both in new and existing structures

Time to Upgrade Drinking Water Protections

A year ago, residents of Charleston, W.Va., learned that their entire drinking water supply had become contaminated by MCHM, a toxic chemical used to wash coal. Ten thousand gallons of MCHM had spilled from a corroding storage tank by the Elk River, located a mile upstream of the city’s drinking water intake pipes. As a result of the chemical spill, 300,000 citizens lost their water for more than a week, and hundreds sought emergency care. That accident alone should have been a wake-up call for Virginians about the need to protect our water supply from chemical spills. But a year later, it seems, we’re acting as if this is all just water under the bridge. Virginia essentially has no laws on the books to regulate land-based storage of toxic chemicals near rivers. West Virginia enacted comprehensive drinking water protection legislation last April after the spill, and it’s time for Virginia to do the same