Volume 51, Issue 4

 

LAND ACKNOWLEDGEMENT

 

ARTICLES

 

Adapting to Coal Plant Closures: A Framework for Understanding State Resistance to the Energy Transition

Tara Righetti, Temple Stoellinger, & Robert Godby

In response to market pressures and renewable generation mandates, utilities are making the decision to close coal-fired generation assets prior to their scheduled retirement dates. Impacts of early coal plant closures to workers and communities can be devastating. The conventional response among state policy makers has been to create short-term programs to transition workers and provide local economic development assistance. However, through detailed comparative analysis of energy transition policies among states in the Rocky Mountain region, a heterogeneity of policy choices emerges. Notably, this includes energy transition resistance, efforts to thwart or delay coal plant closures and other changes consistent with a shift toward renewable generation. This Article unpacks the underlying drivers of energy transition resistance as closely tied to fossil-dependent revenue models and suggests the need for both state-level policies and federal investments in economic diversification.

 

Sustainable Business Law? The Key Role of Corporate Governance and Finance

Colin Myers & Jason J. Czarnezki

Lawyers, law schools, and corporate entities have shown an increased interest in sustainable business strategies. This is reflected by the increase in sustainability practice groups, law school courses, and textbooks focusing on the relationship between sustainability and business law; lawyers moving into executive-level sustainability positions in the private sector; and the proliferation of corporate sustainability policies, as well as increased interest in mitigating climate risk and engaging in sustainable finance. But what exactly is sustainable business law, and what role do lawyers play in advancing sustainability in the corporate world? This Article argues that “sustainable business law” has emerged as a distinct area of law and serves as an introductory explanation to define and understand the growing subject matter at the intersection of sustainability, business, and the law, as well as explores the key role that corporate governance and finance play in achieving sustainability.

 

To Be or Not to Be: State Extinction Through Climate Change

Ori Sharon

Sea levels are rising. Within our lifetimes, several low-lying island states will be submerged. Until recently, the dominant position in legal circles has been that sinking island states lose their status as states once their territory is submerged. However, a contrary view is emerging. Writing in aid of island states, prominent legal scholars have advanced the position that the state, as a legal person, may continue to exist detached from territory. This proposition is supposed to aid island nations during the tumultuous times ahead. Maintaining the legal person of the state, we are told, allows access to international tribunals, facilitates coordination of international support, and protects the substantive rights of the individual citizens of island states facing climatic catastrophes.

Legal scholars who advance this new position are more concerned with theoretical legal questions than the real challenges island states will inevitably face. What the people of island states need are options for communal resettlement. Continued statehood undermines communal resettlement efforts. No state will admit the people of an island state into its sovereign territory if they come as a state. Fighting for the continuation of the state post-submergence is therefore a disservice to island states.

To protect the people of island states from becoming climate refugees, this Article proposes a new pragmatic approach that trades statehood for life. Potential host states would only agree to accept communities from island states, if doing so will not entail competing sovereignty claims. Survival of the people of island states, therefore, is founded in state termination, not continuation. Based on this appreciation, this Article develops a legal framework of state-association that eliminates sovereignty clashes between potential host states and the people of island states. This framework secures communal resettlement options for the people of island states, guaranteeing their long-term survival.

 

California’s Constitutional Right to Fish

Francis Coats & Karrigan Bork

Many states recognize public rights to use public and private property for recreation, hunting, fishing, and navigation, challenging contemporary views of the right to exclude. These public use rights are enshrined in state constitutions, statutes, or the common law. Public use rights are similar to public trust rights, but use rights are generally broader and are not constrained by the public trust’s weaknesses. Analysis of public use rights often conflates these rights with public trust rights, resulting in confusion and reduced protection for public use rights. Recognizing public use rights as something apart from the public trust doctrine is key to protecting them, but little scholarship addresses the issue. This Article demonstrates that California’s constitutional right to fish is a public use right distinct from the public trust doctrine, and mistaking California’s constitutional right to fish for a traditional public trust fishing protection has weakened the fishing right. This work has broad ramifications for efforts to vindicate public use rights.

In 1910, California voters amended the state constitution to create a robust constitutional right to fish. The fishing rights amendment protects the people’s right to fish on the public lands of the state and prohibits sales of state-owned lands unless the state reserves in the people the absolute right to fish on the former state-owned lands. The amendment grew out of the burgeoning populist conservation movement, coupled with broad concerns about a loss of access to nature at the end of the 18th century. The amendment is an aggressive response to such concerns; on its face, it opens the vast majority of public land in California to public fishing and eliminates the state’s ability to sell its lands unencumbered.

The amendment has resulted in nearly all patents for sales of some kinds of state-owned lands since 1912 containing an express reservation of fishing rights, and it likely imposed an implied public fishing access right in all other land sales. Nevertheless, the constitutional fishing amendment has not solved the problem that the
voters hoped it would address. Fishing access is now limited in many regions in California. The California Attorney General and state agencies responsible for protecting fishing access and reserving fishing rights have consistently downplayed the fishing right and sought to restrict the lands to which it applies. Courts have done better, enforcing the right in most circumstances, but some courts too have under enforced the constitutional provision. Very few lawsuits have even been brought to protect the right. In spite of its auspicious beginning, the promise of the constitutional right to fish has largely gone unfulfilled.

This Article reviews the history of California’s constitutional right to fish, from its passage through the present, and concludes that the right’s conflation with the public trust has clouded efforts to protect the public use right to fish. The Article illustrates how this confusion has circumscribed the constitutional fishing right and suggests methods of protecting the right to fish, largely focused on lawsuits by private attorneys general.

 

Regulation of Carbon Capture and Storage: An Analysis Through the Lens of the Wellington Project

Charles C. Steincamp, Tiraz R. Birdie, Diana Stanley, Eugene Holubnyak, Jennifer Raney, & W. Lynn Watney

Sea Carbon capture, sequestration, and storage (CCUS) is a key transition technology for achieving carbon neutrality by 2050. CCUS works by injecting anthropogenic carbon dioxide into underground formations for long term storage. For years, scientists and legal scholars have wrestled over how to best regulate these projects in order to protect human health and natural resources such as drinking water supplies. In 2013, EPA responded to these concerns by creating a new type of injection well permit: the Class VI Rule. Unfortunately, almost a decade later, few developers have built CCUS projects due to regulatory uncertainty. This Article aims to fill the gap in the legal literature by explaining the regulatory structure behind CCUS project permitting and by providing recommendations for expediting the permitting process for prospective researchers and investors.

 

Catalyzing Sustainable Investment

Paul Rose

Calls for increased focus on environmental, social, and governance (ESG) issues—and more particularly, on the kind of sustainable investing that will help achieve the U.N.’s Sustainable Development Goals (SDGs)—run up against durable legal rules and norms of profit maximization. Corporate law, and especially Delaware law, remains committed to a shareholder wealth-maximizing orientation, and corporate directors typically can only consider other parties’ interests to the extent that considering such interests can be justified as benefiting the shareholders. Trust law, which governs the behavior of many investment intermediaries, also generally requires a commitment to wealth maximization, as trustees generally may adopt ESG investing only if doing so will benefit the beneficiary by improving risk-adjusted returns. Thus, there is a tension between directors’ and trustees’ obligations under the law and the need to mobilize the trillions of dollars necessary to achieve the SDGs, at least to the extent that such investments sacrifice returns. Private capital will invest in sustainable projects, but only if the projects provide a market-rate risk-adjusted return.

To direct capital to critical, sustainable projects, some have called for changes in legal doctrine and governance norms that would allow for greater flexibility in investment decision-making, such that fiduciaries could invest in ESG projects even if they do not provide an at-market return. This Article describes a different approach: the
catalyzation of sustainable investment by governments to direct capital to sustainable projects – sovereign entities use unique advantages to directly invest in sustainable projects and broker sustainable investments by taking on deal risk and reducing transaction costs for other investors. Rather than attempting to reform or re-orient market forces, governments can (and do) use existing market strategies that are successfully applied in private contexts. In other words, rather than expecting investors to sacrifice returns to achieve the SDGs or other public ESG benefits, governments are catalyzing sustainable investment by harnessing a profit-maximizing orientation.

 

ESSAY

 

Accelerating Catastrophe: Slaughter Line Speeds and the Environment

Dani Replogle & Delcianna J. Winders

In addition to serving as one of America’s most dangerous work environments, slaughterhouses are hugely detrimental to virtually every aspect of the natural environment outside their walls. Though environmental impacts attributable to industrial slaughter are problematic nationwide, these harms are disproportionately borne by communities of color and low-income communities. As such, rethinking the way Americans kill animals and process their flesh is imperative as we strive to move toward a more just and sustainable future. This Essay examines the environmental impacts of slaughter through the lens of the U.S. Department of Agriculture’s (USDA’s) recent moves to raise and remove slaughterhouse line speed limits. The authors contend that the USDA’s use of a categorical exclusion to change line speed limits without analyzing environmental impacts under the National Environmental Policy Act of 1969 (NEPA) is contrary not only to law, but also the tide of public opinion. As COVID-related worker abuses have come to light and ushered in calls for increased slaughterhouse accountability, this Essay concludes by positing that the time for slaughterhouse reform has arrived and that the Green New Deal is an appropriate vehicle for such reform. 

 

COMMENT

 

Zap the Sleeping Giant: Revamping Order 1000 to Facilitate Decarbonization Across the Western United States

Benjamin U. Criswell

Public policies with ambitious decarbonization requirements affect electricity systems spanning various jurisdictions and geographies in the United States. In 2011, the Federal Energy Regulatory Commission issued Order 1000, recognizing the importance of incorporating federal, state, and local public policy requirements into
regional and interregional transmission planning and coordination. Alas, Order 1000 has failed to reconcile electricity grid balkanization across the western United States. This failure threatens to thwart decarbonization efforts, expose electricity customers to unfair rates, and undercut grid reliability. But even without new federal
legislation, the Commission could revamp Order 1000 and leverage existing statutory mechanisms to facilitate the creation of transmission systems sufficient to comport with decarbonization goals and other public policy requirements.