Now showing items 21-40 of 18177

    • The Social Cost of Greenhouse Gases: Legal, Economic, and Institutional Perspective

      Revesz, Richard L.; Sarinsky, Max (2022)
      The social cost of greenhouse gases provides the best available method to quantify and monetize the climate damages attributable to the emission of an incremental unit of heat-trapping pollution. Accordingly, the metric can be highly useful for crafting policies that will reduce the nation’s greenhouse gas footprint, with potential usages including weighing the impacts of proposed fossil-fuel projects, assessing grant applications and procurement decisions that have climate impacts, and crafting fee schedules for monetary rates that will internalize the cost of climate damages onto polluters. To date, however, the use of the social cost of greenhouse gases for such determinations and processes has been sporadic and fairly limited. It is time for this practice to change, as broad application of the social cost of greenhouse gases will enable agencies and departments to identify programs or policies that cost-effectively reduce greenhouse gas emissions and thus enable a speedy and efficient transition to a greener economy. Because widespread use of the social cost of greenhouse gases would lend support to many decisions to transition away from fossil fuels, the methodology has become subject to criticism from opponents of climate reforms. While critics attempt to discredit the federal government’s social cost of greenhouse gases valuations—arguing that these values overestimate climate costs, disregard best practices, and even usurp the legislative function from Congress—such criticisms lack merit and should not deter agencies from broadly applying the social cost of greenhouse gases. This Article evaluates the various legal, economic, and institutional controversies surrounding the social cost of greenhouse gases and explains why this metric should play a critical role in guiding agency policymaking and decision-making related to climate change.
    • “The Grass is Not Always Greener” Revisited: Climate Change Regulation Amid Political Polarization

      Osofsky, Hari M.; Peel, Jacqueline (2022)
      In 2016, we co-authored a symposium article, The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective, 91 CHI.-KENT L. REV. 139 (2016), that compared the impact of polarization on the process of creating climate change law and policy in the United States and Australia. We found that while the United States relied heavily on administrative regulation because comprehensive climate change legislation could not pass Congress, Australia’s flip-flopping legislation did not offer a demonstrably superior solution. We did not at the time foresee the political changes that would take place in both countries over the five years that followed. The transitions from President Obama to President Trump to President Biden have involved dramatic shifts in regulatory policy at the same time as the same conservative Coalition government has until recently continued to hold power in Australia. This Article revisits our thesis, given these changes, that both forms of government face barriers to effective lawmaking when deep partisan divisions exist. We find that although the politics of particular periods may make one political system more stable in approach than the other, neither country has made consistent progress in addressing the problem of climate change. In addition, subnational governments and other key stakeholders have taken action in both countries when confronted with partisan barriers at the federal level. We conclude that the dramatic regulatory shifts in the United States and the limited regulatory action in Australia over the past five years only bolster the importance of advancing substantive and structural strategies that foster greater cooperation.
    • Delegating Climate Authorities

      Nevitt, Mark (2022)
      The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the nondelegation doctrine prohibits Congress from delegating its legislative authority to the executive branch absent an intelligible principle to guide implementation. Failure to fully take into account possible nondelegation challenges could stop forward-looking climate action in its tracks. This Article addresses the contours of the nondelegation doctrine as applied to future climate action. In doing so, it argues that climate change and its associated impacts are a complex collective action problem that implicate Article II authorities independent of congressional lawmaking. These authorities may provide an avenue through which climate action can be taken irrespective of the limits imposed by the nondelegation doctrine. As prospective climate solutions emerge, the nondelegation doctrine lurks in the background. Climate action must therefore be reconciled with presidential foreign relations, national security, and emergency authorities—three areas where the President is afforded significant, but not absolute deference.
    • Regulatory Oscillation

      Masur, Jonathan S. (2022)
      In the wake of the Reagan deregulation, America experienced twenty-eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump’s presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack Obama as possible. The Trump EPA was particularly active in this effort. In addition to reversing the Clean Power Plan, under Trump the EPA repealed or substantially weakened a number of other important Obama-era regulations, including a substantial increase in fuel economy standards and strict curbs on mercury and other emissions from coal-fired power plants. These regulations would have affected air quality and pollution more generally, but they also would have had a substantial effect on greenhouse gas emissions and thus on climate change. President Biden has promised to reinstate or even strengthen most if not all of the Obama-era regulatory initiatives that Trump eliminated. The EPA and other agencies are already at work on these new regulations. But Biden does not represent the end of history. Barring some seismic shift in political tectonics, some day in the future a Republican will again be elected president on a platform of ignoring climate change, protecting the fossil fuel industries, and reversing the regulatory progress of his or her Democratic predecessors. That president will likely undertake a program of deregulation, much as Trump did. Subsequently, a Democrat will again someday be elected president. That president will likely undertake a program of re-regulation, much has Biden has promised to do. From administration to administration, across terms, regulations will blink into and out of existence. They will become more and less stringent on four, eight, or twelve-year cycles. We are now living in an era of regulatory oscillation.
    • Climate Policy Buffers

      Lin, Albert C. (2022)
      The Trump administration wreaked havoc on U.S. climate policy by withdrawing from the Paris Agreement, undoing climate regulations, and undermining the foundation of future regulatory efforts. The Biden administration has begun to reverse the Trump administration’s climate rollbacks, but Democrats have struggled to enact legislation that would directly limit carbon emissions. Because federal climate policy remains rooted in agency rules and policies, the election of the next Republican president may herald further policy whiplash. Swings in climate policy waste limited government resources, foster uncertainty, weaken trust in federal climate policy, undermine climate mitigation efforts, and make future responses to climate change even more difficult. Understanding how to safeguard administrative climate policy from future rollbacks is essential. This Article contends that a suite of factors—including features of administrative law, subsidies for renewables, state climate policies and lawsuits, nongovernmental climate initiatives, incompetence, and happenstance—have all played important roles in buffering federal climate policy from more extensive damage. The Article then considers how to bolster these factors to protect federal climate policies from future efforts to undo them.
    • Evaluating Project Need for Natural Gas Pipelines in an Age of Climate Change: A Spotlight on FERC and the Courts

      Klass, Alexandra B. (2022)
      As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates for construction and operation of interstate natural gas pipelines that are needed for the “present or future public convenience and necessity.” FERC’s longstanding practice under its 1999 “Policy Statement on Certification of New Natural Gas Facilities” for pipelines is to assess whether there is a “market need” for the proposed pipeline project before addressing other considerations such as adverse impacts on existing pipeline company customers, other pipelines in the market and their customers, and landowners and communities.
    • Valuing the Future: Legal and Economic Considerations for Updating Discount Rates

      Howard, Peter; Schwartz, Jason A. (2022)
      Discount rates reflect the commonly held belief that a dollar today is worth more than a dollar tomorrow. Therefore, consistent with observed human behavior, governments use discount rates to weigh and compare present versus future costs and benefits in their decisions. The choice of discount rates greatly impacts which government regulations are cost-benefit justified, particularly for regulations with long-term benefits, as in the context of climate change. Though the U.S. government has historically revised its recommended discount practices several times, the current recommendations for a 3% consumption rate and a 7% capital rate have been enshrined in federal guidance without revision since 2003, despite significant changes to society, markets, and the economics literature. This article details the compelling economic evidence and legal principles that support revising federal guidance on discounting. In the economics literature, multiple lines of evidence point to a central consumption rate below 2% as appropriate in government decisionmaking—and capitalbased rates as largely inappropriate for many policy contexts—particularly in rulemakings with inter-generational implications, like climate change. Legal principles support such revisions. Statutes and executive orders charge agencies to base decisions on the best available data and to consider future generations’ welfare. Though agencies must thoroughly explain their discounting choices, agencies have discretion to lower their discount rates consistent with updated evidence and ethical obligations. Agencies especially must justify any choices to apply different discount rates to different contexts or effects, but a declining discount rate framework can consistently harmonize agency practices and so put agencies on sound legal footing in their approach to valuing the future.
    • Costs, Confusion, and Climate Change

      Gundlach, Justin; Livermore, Michael A. (2022)
      In the United States, the primary tool to value greenhouse gas emissions reductions in cost-benefit analysis is the social cost of carbon (SCC), which is a metric that estimates, in monetary terms, the damages associated with climate change. Recently, some prominent public policy experts and scholars have proposed that a “marginal abatement cost” (MAC) could be used as an alternative to the SCC. Indeed, some jurisdictions, such as the United Kingdom, have integrated MAC-based approaches into climate policymaking. This Article provides conceptual clarity about these metrics, focusing on how a MAC-based threshold could sensibly be used in climate policy, and explaining why it is not a substitute for the SCC. We relate the current conversation about valuing greenhouse gas emissions to the longstanding debate over the use of prices versus quantities in climate policy formulation and the more generic regulatory question of when it is appropriate to employ cost-benefit analysis versus cost-effectiveness analysis. In addition, we use illustrative hypothetical policy contexts to explain the roles that these tools should play.
    • Feasibility Analysis and the Climate Crisis

      Driesen, David M. (2022)
      Agencies prepare feasibility analysis when proposing standards limiting greenhouse gas emissions and explicitly base their standard-setting decisions on what is feasible. They do this because the relevant statutes demand maximization of feasible emission reductions. Cost-benefit analysis (CBA) provides a supplement to the statutorily required analysis. This Article argues that the President should limit CBA’s role in light of the urgency of the climate crisis, primarily to minimize delay and clear potential obstacles to effective climate policy. Specifically, the President should repeal the executive orders requiring CBA. While agencies would still have to prepare CBA for very expensive rules under the Unfunded Mandates Act, repeal of those orders would allow agencies to use CBA to inform Congress rather than influence agency standard setting. This Article explains what feasibility analysis is and argues that the need to do all we are capable of doing to avoid, or at least ameliorate, the climate crisis justifies allowing feasibility analysis to displace CBA. Indeed, responsible governments respond to crises by doing all that is feasible to avoid or at least ameliorate them, not by asking whether every action needed to address a crisis generates quantified benefits exceeding the cost. It suggests, however, that the executive branch reorient feasibility analysis to focus more on consumer welfare than on preserving existing firms in light of the need to transform the economy to deal with the climate crisis. The feasibility requirement demands that the goods and services firms provide remain available to consumers, albeit sometimes in altered form, but need not be interpreted to protect existing businesses.
    • Promoting “Climate Change Plus” Industries Through the Administrative State: The Case of Marine Aquaculture

      Craig, Robin Kundis (2022)
      Climate change has reached its “all hands on deck” moment, requiring simultaneous mitigation and adaptation efforts and the participation of all branches of government at all levels—including (and maybe especially) the administrative state. However, while certain agency exercises of climate change discretion have received considerable commentary, less attention has been paid to the ability of federal and state agencies and tribes to promote what this Article terms “climate change plus” (CC+) industries—that is, new, emerging, or expanding industries that can assist climate change mitigation or adaptation (or both) despite not being obviously connected to climate change. Therefore, unlike renewable energy, these industries are unlikely to inspire major legislative changes in policy or new statutory incentive programs as part of a larger climate change initiative. Nevertheless, these industries can still contribute to the nation’s efforts to meet climate change mitigation and adaptation goals, underscoring why the administrative state needs to carefully evaluate such industries through a climate change lens when exercising regulatory discretion.
    • Foreword: On the Imperative of Adapting to Climate Change

      Sunstein, Cass (2022)
      For climate change and the administrative state, imagine two situations: (1) Congress has enacted a Climate Change Act (CCA), which gives specific directions, and specific authorities, to an assortment of agencies: the Environmental Protection Agency, the Department of Transportation, the Department of Interior, the Department of Homeland Security, the Department of Energy, and others. In the years following enactment of the CCA, the relevant agencies must act in accordance with Congress’s directions. To be sure, they must make some important discretionary judgments, calling for both scientific and economic assessments. But those judgments are sharply cabined by congressional instructions about how to handle the problem of climate change. (2) Over a period of decades, Congress has given an assortment of directions and authorities to an assortment of agencies: the Environmental Protection Agency, the Department of Transportation, the Department of Interior, the Department of Homeland Security, the Department of Energy, and others. In general, those directions and authorities were not given with specific reference to climate change. Some of the relevant authorities involve air pollution. Others involve fuel economy. Still others involve energy efficiency. Others involve preparedness for, and response to, national disasters. Agencies act in accordance with the directions and authorities that they have been given. If the President of the United States is focused on climate change, agencies will respond accordingly, authorized and limited as they are by law. If the President of the United States is not focused on climate change, agencies will also respond accordingly, again authorized and limited as they are by law.
    • Eliding Original Understanding in Cedar Point Nursery v. Hassid

      Berger, Bethany R. (2022)
      Cedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they caused economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even a rejection of what made the new nation a land of liberty.
    • Caribbean “Credit Nations”: Consignment Economies in the British West Indies

      Brown, Eleanor (2022)
      A central tenet of English property law has been the protection of land and the interests of potential interest holders in such land. For centuries, creditors could not reach land to satisfy debts either in the British Isles or in the colonies. Against this background, Claire Priest delineates how the British Parliament, in a series of deeply controversial moves culminating in the Debt Recovery Act of 1732, modernized law in the American colonies so that it privileged creditors. More specifically, the Debt Recovery Act made it possible for creditors of colonial debtors to execute debt judgments on real property as well as on enslaved people for the recovery of debts. Colonial governments in the American colonies, building on this legislative framework, also promoted innovations that would allow creditors to reach both land and slaves more easily. For example, several colonial statutes were passed to make clear that enslaved persons were property that could be utilized as collateral for loans, and also auctioned, in the event that debtors later defaulted.
    • Rethinking Property Rights in the Light of Credit Nation

      Lamoreaux, Naomi R. (2022)
      The publication of Claire Priest’s new book, Credit Nation: Property Laws and Institutions in Early America, is an occasion well worth marking. Several years ago, when I read her article Creating an American Property Law, the first piece in the project that became this book, I was dumfounded. The subject of that article, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, enacted by the British Parliament in 1732, was a major, unilateral revision of property rights to land in the colonies, though not in Britain. The act not only made it possible for creditors of colonial borrowers to seize land in payment of unsecured debts, but it stripped future generations of property rights that had long been secured to them under English law. How could it be that a redistribution of this importance was so little known until Priest called attention to it? How could it have been so completely ignored in writing on colonial political, legal, and economic history, especially in accounts of the British impositions that led to the Revolution? Much more minor afflictions, such as Virginia Governor Dinwiddie’s attempt in 1752 to levy the fee of one pistole for sealing land patents, have been singled out as precursors to the rebellion: “Liberty & Property and no Pistole!” Priest’s work not only remedies this omission, but by connecting the debt recovery act to later Revolutionary-era events, provides a deeper understanding of the protests over Dinwiddie’s fee, as well as over later, more consequential, levies such as the Stamp Act.
    • A Glimpse of Early Modern Governance in Claire Priest’s Credit Nation

      Rose, Carol M. (2022)
      Claire Priest’s remarkable book serves up a whole new view of commercial relations in the colonies that were to become the United States. Her striking revelation of the importance of slavery in colonial commercial innovation will undoubtedly catch the attention of readers and reviewers, coming as it does at a moment when the history of slavery has come under an especially searching spotlight. A second theme that will capture attention runs through the entire book: the countervailing efforts of colonial entrepreneurs to borrow and thus take potentially wealth-producing risks while also leavening risk with now-obsolete property devices like entailed fees. Both these themes necessitate revisions of conventional views. The first revision, among others, concerns the geography of colonial commercial growth, which, as Claire reveals, very much involved trafficking in enslaved persons. The conventional view of colonial entrepreneurship is that the major location was in the north: Yankee clippers plying the seas, Ben Franklin types setting up print shops, Paul Revere producing silver goods, and so on. But in Claire’s book, the major financial innovators were the southern planters, taking on debt to invest in what looks like industrial agriculture—staple crops like indigo and tobacco—and for that purpose pledging not only their land as surety but their slaves as well.
    • Property and Credit: A Legal and Economic History

      Harris, Ron
      Many legal historians engage in various forms of critique of capitalism and Western colonialism. Very few actually study capitalism from the inside, addressing questions related to capital accumulation, financial institutions, entrepreneurs, or business corporations. Fewer still scrutinize, from the inside, the connections between capitalism and colonialism, by studying global trade, capital flows, the City of London, or multinationals. Some of the historians who have been attracted to these internal issues in recent years and identify themselves as new historians of capitalism avoid economic history and economic theory, it would seem, due to ideological hostility, ignorance, or a lack of the specific competencies required in these realms. Few of these historians pay attention to law. But the group of scholars who are involved in what I term legal-economic history—historians who are willing to tackle the details of legal doctrines and institutions, on the one hand, and draw on economic history literature and insights from economic theory, on the other—is markedly small. I can think of fewer than a dozen such active legal-economic historians. Claire Priest is one of these exceptional few. She does legal-economic history of the kind I appreciate and aim to do myself. In Credit Nation, she employs economic history literature and engages with economic historians.
    • Property in Land in the Early United States

      Ellickson, Robert C. (2022)
      Claire Priest’s impressive book emphasizes the lack of legal restrictions on the remedies of creditors in what would become the United States. She stresses Parliament’s passage of the Debt Recovery Act in 1732, a distinctly pro-creditor enactment. An important part of her narrative addresses security interests in slaves. By 1785, South Carolina had established a county system for the voluntary recording of mortgages on slaves. The focus of this essay, by contrast, is entirely on property in land, including mortgages on land. Priest’s book cites Alice Hanson Jones’s finding, based on an examination of probate records at the time of the Revolution, that real estate, not slaves, constituted a solid majority of personal wealth, even in Southern States. Priest asserts that Jones found that “land constituted 81.1% of wealth in New England, 68.5% in the mid-Atlantic region, and 48.6% of wealth in the South, with slaves constituting 35.6%.” There is a small literature on real estate transactions in early America. Standouts include John Frederick Martin’s Profits in the Wilderness (1991), on town formation in seventeenth-century New England, and Elizabeth Blackmar’s Manhattan for Rent, 1785-1850 (1989). Nonetheless, much remains to be done. Land records, rarely explored by historians, provide potential troves of information. In this brief essay, I comment on two topics related to real estate: the role of land speculators in the eighteenth century and the development of Manhattan real estate during the lifetime of John Jacob Astor, who at this death in 1848, was one of the richest men in the world.
    • Commentary on Claire Priest’s Credit Nation: Property Laws and Institutions in Early America

      Edwards, Laura F. (2022)
      It is such an honor to have the opportunity to engage with Claire Priest’s Credit Nation: Property Laws and Institutions in Early America. Priest’s articles have long been on my graduate students’ lists for comprehensive exams, and they are often cited as among the most influential of their readings. This past spring, when a student was asked in her oral exam to come up with turning points in the colonial era, she immediately said 1732. Why, asked the questioner, a bit confused, expecting the usual dates associated with wars or political events or even the dates associated with the development of slavery. In fact, the questioner followed up with one of those dates: Why not 1619? The student replied with remarkable confidence: 1732 was the date of the Debt Recovery Act, which made real estate and enslaved property available to satisfy creditors’ claims. That, in her mind, changed everything. Credit Nation explains how the Debt Recovery Act and a host of other legal measures did just that: changed everything, by building the availability of credit into the legal order and, thereby, fueling capitalist development. The implications upend basic assumptions in the scholarship of early America. They shift the chronology of economic change from the nineteenth century to the eighteenth century. They shift the location of legal innovation, bringing Virginia and its agricultural economy into focus alongside New York and its commercial economy. They shift the means of legal change, from appellate decisions to statutes and from centralized states to local governments, which developed in the way that they did to keep all the necessary records. And they shift the targets of law, from the property usually associated with industrial development to that associated with the agricultural economy, in the form of real estate and enslaved people.
    • Credit Nation and the Reconfiguration of Early American and Imperial History

      Pincus, Steve (2022)
      Claire Priest’s Credit Nation is a remarkably innovative piece of scholarship. In this book Priest demonstrates that anyone seriously interested in the emergence of “capitalism” in America needs to start by studying the law and its institutions in the colonial era. It was in the colonial era, Priest shows, that a distinctive version of property law emerged, one that in the vast majority of situations prioritized credit and liquidity over the security of property. “The ease of access to credit” established in the colonial era, Priest argues, “was key to the explosive growth of capitalism in nineteenth-century America.” Certainly, as she shows, the passage of the Debt Recovery Act of 1732 was followed by a period “of great colonial economic expansion, driven by credit” in the 1740s. While my colleagues have emphasized Priest’s seminal contributions with respect to legal and economic history, I wanted to draw attention to the profound implications of Priest’s work for colonial and imperial history. In essence, I am suggesting appendixes to Chapter 9 that would interpret the significance of Priest’s findings for still more audiences.
    • Confiscation Nation: Settler Postcolonialism and the Property Paradox

      Hulsebosch, Daniel J. (2022)
      Capitalist from the beginning. That is the emerging consensus about early America. Just a generation ago, many historians of law and economy sought instead to locate the moment of transition from community-based economies to market capitalism. The “great transformation” was dated variously, but the American Revolution often provided a key to the shift. Those scholars, in turn, were reacting against the consensus historians of the Cold War era, who tended to find broad agreement in the sources that politics, law, and society worked in tandem to generate economic growth. Now, a version of that consensus is returning. Historians today, however, find more conflict and exploitation in their sources. Perhaps the most striking departure from the old consensus is the prominent place of slavery in the new histories of capitalism. Another notable difference is the role of the Revolution—or its absence. Capitalism appears to have emerged almost fully formed in the colonial period, with changes to its legal structure representing functional adjustments to satisfy the needs or interests of market participants. But was early American politics just a pass-through device for wealth-maximizing private interests? Did politics and especially political ideas matter for the development of American economic institutions? And did the American Revolution have any effect on the structure of the market?