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Articles

 

Putting a Price on Carbon: The Metaphor

David M. Driesen

This Article analyzes the characterization of pollution taxes and so-called cap-and-trade programs addressing greenhouse gas emissions as policies that “put a price on carbon,” a characterization that has come to dominate both policy discussion and much modern scholarship on environmental instrument choice. It explains that the rationale for characterizing cap and trade as putting a price on carbon suggests that analysts should likewise treat traditional regulation as a mechanism putting a price on carbon.

Treating “market-based mechanisms” as uniquely putting a price on carbon reflects and perpetuates a tendency to see markets and government as antonyms—with markets operating through price, and governments operating through coercion—even though markets and governments are intimately intertwined and use a variety of tools. This Article shows that an informed third generation debate about instrument design and choice should focus on understanding price’s limits as a coordinating tool, including the appreciation of potential conflicts among the values price is thought to serve.

Streams of Environmental Innovation: Four Decades of EPA Policy Reform

Daniel J. Fiorino

The dynamic and rapidly changing field of the environment presents many examples of policy innovation. These various efforts may be organized in streams of environmental policy innovation. Of the many such innovation streams undertaken by the United States Environmental Protection Agency in recent decades, five are examined and compared on the basis of the perceived deficiency that led to the policy change, their design and applications, the conceptual basis for the innovation, and the durability of the change. The five innovation streams are emissions trading, program integration, risk-based planning, regulatory and permitting flexibility, and voluntary programs. Among the factors that may be associated with the more durable innovations are consensus on a need for change; demonstrable, near-term gains in economic efficiency and environmental effectiveness, rather than in institutional capacity; and a strong theoretical and statutory foundation. The difficulty of meeting these conditions explains, at least in part, why innovation in environmental policy has been so challenging over the years.

Environmental Regulation at the Frontier: Government Oversight of Offshore Oil Drilling North of Alaska

David Hults

The Arctic Ocean is one of the last great frontiers for energy production. The prospect of oil development in the region raises deep questions about the threat of a major oil spill, like the one that affected the Gulf of Mexico in 2010. A growing body of legal scholarship has explored the problem of catastrophic risks, in contexts ranging from natural disasters to nuclear power accidents. However, few studies have considered this problem in a frontier environment or focused on government oversight of Arctic offshore oil drilling specifically.

This Article fills the literature gap on the Arctic and addresses the more general problem of catastrophic risks in frontier environments. Using the lenses of principal–agent analysis and regulatory theory, this Article shows how the Arctic’s profound uncertainties and lack of benchmarking opportunities challenge the efficacy of conventional regulatory models, such as the “risk-based” model that has seen application in other regulatory contexts. Addressing these problems requires greater transparency in government decision making, development of Arctic-specific regulations, and substantially delayed government approval—assuming it is not possible to ban oil drilling in U.S. Arctic waters altogether. The analytical framework and policy recommendations in this Article also offer insights for other risky industries operating at the technological frontier.

Marine Conservation Campaigners as Pirates: The Consequences of Sea Shepherd

Whitney Magnuson

Sea Shepherd Conservation Society, the infamous environmentalist group featured on Animal Planet’s Whale Wars, was recently convicted of piracy by the Ninth Circuit Court of Appeals. To be condemned as a pirate under international law, a defendant must have committed the alleged piratical act for “private ends.” This Chapter analyzes the nexus between piracy law and marine conservation efforts to determine whether environmental goals should fall within the purview of the “private ends” element. In the process of answering this question, this Chapter explores the conflicting district court and Ninth Circuit opinions in the Sea Shepherd case, surveys the development of piracy law, and critically examines the implications of labeling marine conservationists as pirates under international law, ultimately concluding that environmental goals should not constitute “private ends.”

Establishing Causation in Private Party Climate Change Suits: Correcting the Mistakes of Washington Environmental Council v. Bellon

Corey Moffat

The Ninth Circuit Court of Appeals’s recent decision in Washington Environmental Council v. Bellon dealt a heavy blow to the ability of private parties to establish standing based on climate change-related injuries. Specifically, the decision established a “particularly daunting” bar for such parties to demonstrate the causation prong of traditional Article III standing. First, the Ninth Circuit distinguished the Supreme Court’s preeminent climate change decision, Massachusetts v. EPA, on grounds that private parties were not entitled to “special solicitude.” Second, the Ninth Circuit implied that as a result, private parties were not able to demonstrate causation based on a theory of contribution. Third, the Ninth Circuit held that even if private parties were entitled to rely on contribution, they would have to demonstrate a “meaningful contribution” to global greenhouse gas concentrations, which the Ninth Circuit implied was equal to six percent of global carbon dioxide emissions. The collective impact of these interpretations led Circuit Judge Gould, writing in dissent from the Ninth Circuit’s order denying rehearing en banc, to conclude that the effect of Washington Environmental Council v. Bellon is to effectively shut the door on the use of citizen suits to address climate change.

This Chapter argues that the Ninth Circuit’s basis for these three conclusions was unfounded, and therefore concludes that the Ninth Circuit incorrectly analyzed the element of causation. Moving forward, however, this Chapter notes that Washington Environmental Council v. Bellon will pose a difficult barrier for parties of all types to establish causation based on climate change-related injuries.