“The Death of Environmentalism”?
p. 11145 (5th edition): Nordhaus and Shellenberger have published a sequel entitled Break Through: From the Death of Environmentalism to the Politics of Possibility (2007). As described by Professor Oliver Houck in a powerful critique of the book, "[t]hey wrote a book about how right there are." Oliver A. Houck, Rumors of My Demise . . . A Review of Break Through: From The Death of Environmentalism To the Politics of Possibility, 38 Envt. L. 627 (2008). See also Douglas A. Kysar, The Consultants' Republic, 121 Harv. L. Rev. 2041 (2008) ("According to Nordhaus and Shellenberger, the future of environmentalism, and of American politics more broadly, lies not in stronger evidence, better science, or more reasoned appeals to the public, but instead in sheer marketing acumen, in forming and farming policy goals in a manner that activates the deeply embedded values and cognitive metaphors of the public"). While not specifically embracing Nordhaus and Shellenberger's critique, Gus Speth, Dean of the Yale School of Forestry and Environmental Studies, expresses frustration that "[e]lectoral politics and mobilizing a green political movement have played second fiddle to lobbying, litigating, and working with government agencies and corporations." James Gustave Speth, The Case for a New American Environmentalism, 39 Env. L. Rep. 10066 (2009). Speth calls for "a new environmental politics" that will pursue an expanded agenda "to embrace a profound challenge to consumerism and commercialism and the lifestyles they offer, a healthy skepticism of growthmania and a redefinition of what society should be striving to grow, a challenge to corporate dominance and a redefinition of the corporation and its goals, a commitment to deep change in both the functioning and the reach of the market, and a powerful assault on the anthropocentric and contempocentric values that currently dominate." Id. at 10068. Environmental Prospects: The Future of Environmental Law
p. 1146 (5th edition): Robert V. Percival, Environmental Law in the Twenty-First Century
25 Va. Env. L. J. 1 (2007) Looking back on the last twenty-five years in the evolution of environmental law and policy there have been several important developments that were not widely anticipated. These do not include the growth of concern over global warming or efforts to challenge environmental controls as regulatory takings, issues that were thoroughly discussed in the first and third annual reports of the Council on Environmental Quality. But they do include the rise of the environmental justice movement, the disappearance of bipartisanship on environmental issues, and the enormous growth in the depth of environmental concern in developing countries. Looking forward to the future, what developments are likely to occur in the next twenty-five years of evolution in the environmental law field? Because domestic environmental law is now primarily the product of regulatory legislation, rather than common law, its future depends largely on who captures or retains control of Congress and the White House, questions that are not likely to be determined based solely on how the public feels about environmental protection. . . .The common law now serves primarily as a backstop to be invoked when regulation fails, but common law concepts retain a powerful influence on judges distrustful of regulatory agencies. The courts are likely to continue to be a battleground for groups seeking to change the environmental laws through judicial interpretation or to discipline agencies when they seek to bend the law too far in one direction or another. For now, questions concerning the constitutional authority of Congress to protect the environment seem to have been settled and should gradually fade from the scene. However, the U.S. Supreme Court remains sharply divided on environmental issues, as illustrated by its most recent environmental decision in the Rapanos case. As this decision illustrates, issues that turn on how to interpret the environmental statutes will be sharply contested with Justice Kennedy probably wielding the decisive vote in most cases for the foreseeable future. The retirement of Justice Sandra Day O'Connor also opens up the possibility that the Court will revive Justice Scalia's long-standing campaign to restrict the standing of environmental plaintiffs or revisit efforts to broaden the circumstances under which environmental regulations will be deemed to be regulatory takings for which compensation must be paid. Claims that the administrative state has transfigured into a cost-benefit one have largely proven to be wishful thinking by critics of environmental regulation. Regulations to protect the environment have become smarter, more flexible, and more efficient and are likely to continue to do so in the future. However, efforts to impose some kind of cost-benefit “super mandate” on regulatory agencies have floundered for the simple reason that it is a bad idea. To appreciate why, one need look no further than the Corrosion Proof Fittings decision in which a federal appeals court transformed what was intended by Congress to be a very soft version of a cost-benefit balancing mandate into a vehicle that effectively has paralyzed EPA's ability to regulate under the Toxic Substance Control Act. The Supreme Court's unanimous rejection in Whitman v. American Trucking Associations of pleas from proponents of the cost-benefit state to rewrite the Clean Air Act to incorporate their favored decision rule preserved the integrity of one of the most valuable national regulatory programs. Environmentalists' antipathy to cost-benefit analysis may moderate as they seek to embrace the conclusions of ecological economics concerning the enormous value of “ecosystem services,” which have been largely ignored by conventional economic analyses. But rather than striking a blow in favor of cost-benefit analysis as a decision rule, this may serve instead to illuminate the enormous uncertainties that inevitably afflict its use as a decision-making tool. . . . It would be nice to be able to confidently predict, as some have done, that the development of new technology will largely solve environmental problems in the future, leading to the dawn of a zero-emissions society. But the history of environmental law demonstrates that innovations in pollution control technology are largely a product of the perceived future stringency of emissions controls. If the United States continues to demand cleaner and more efficient production processes and means of transportation, we can expect considerable further progress along the road towards a green society. That progress will by no means occur with respect to all environmental problems. Non-point source pollution is widely, and properly, understood as one of the top problems that regulatory policy has failed to come to grips with. So long as most land use management decisions remain the fiercely guarded province of state and local authorities, solutions to non-point source pollution problems will remain elusive, just as pressures to develop in sensitive coastal areas are likely to continue to overwhelm environmentally-minded voices. Disasters like Hurricane Katrina and the flooding of New Orleans that grip the nation for a time often create the momentum to make fundamental changes in the environmental law (sometimes for better, and sometimes for worse). For now, it is too early to tell what the long-term legacy of these events will be. Around the globe environmental law already is changing rapidly in response to public concern over the environment and the expansion of global trade and communication. While some environmentalists feared that trade liberalization would harm the environment, it actually has spurred countries like Chile and China to upgrade their standards so that environmental concerns could not be used as an excuse to restrict their access to foreign markets. . . . Environmental standards can be expected to improve dramatically in the developing world as less-developed countries devote greater effort to creating legal infrastructures to respond to environmental degradation. Unfortunately, this often occurs only after such enormous damage is done to the environment that its long-term impact no longer can be ignored. But international networks . . . are now greatly accelerating developing nations' learning curves concerning how to establish and enforce effective environmental laws. As these laws become more effective in the future, at some point U.S. corporations may prefer to have foreign victims of environmental harm sue them in U.S. courts, rather than the reverse pattern that heretofore has prevailed in Alien Tort Claims Act litigation. . . . Global warming and climate change now appear likely to be the problems that will pose the greatest challenge to the future development of international environmental law. As they continue to emerge as urgent, planetary concerns, it will be necessary for the nations of the world to develop a post-Kyoto regime that will respond to the fairness concerns of developing countries and the economic concerns of the developed world. While some have argued that countries like China have little incentive to take action to control its greenhouse gas emissions, the fact that China ultimately will pass the United States as the largest contributor to world emissions means that it is capable of taking actions that can have more impact on the global problem than any other country. Chinese scientists are very concerned about the impact of global warming on China's environment. Thus, self-interest alone may bring the world's most populous country to the bargaining table. This cannot happen, however, if the United States continues to ignore the developing world's concerns about the unfairness of the U.S. refusal to take the lead in responding to a problem to which it has been the largest contributor. Greenhouse gas emissions from the developed world have been the primary cause of the global warming and climate change problems. While developing countries now account for a substantial, growing share of such emissions, the Kyoto Protocol only required emission reductions by the developed world because it was viewed as necessary first for the countries that had done most to cause the problem to take the lead in addressing it. Instead President Bush has rejected the Kyoto Protocol and U.S. emissions have continued to increase. The contemporary environmental movement was heavily influenced by concerns that pollution would harm public health. Concern for public health continues to be the trigger that drives much of what the EPA does on a daily basis. Because environmental conditions can play a significant role in the development and spread of new diseases, it seems logical to believe that the fields of environmental law and health law will begin to converge. So many issues of public health and preventive medicine already revolve around environmental conditions that it seems like a logical progression for both fields of law. Both fields confront difficult questions concerning how precautionary regulatory policy should be. These challenges will only increase as biomonitoring documents wide human exposure to toxics, and the consequences of global warming and climate change continue to emerge. The World Health Organization's establishment of a Framework Convention on Tobacco Control is a significant step that seeks to reduce the impact of diseases caused by the use of deadly and addictive products. Regardless of the pace of future technological change, certain features of U.S. environmental law should hold broad appeal for the citizen movements emerging in developing countries. The Emergency Planning and Community Right-to-Know Act's toxic substance inventory gives U.S. residents the ability to remotely determine a great deal about the kinds of chemicals to which they are being exposed on a daily basis. If U.S. companies routinely comply with this legislation in the United States, they also should be able to do so in Europe and other continents where regulatory authorities are bold enough to require it. In addition to providing the public with information about chemicals to which they are exposed, government also should determine whether new chemicals pose unreasonable risks by requiring some form of tiered, pre-market testing as the European Union (EU) is doing with its REACH Program. While environmental concerns continue to command broad popular support, it has not always been easy to shepherd new environmental legislation through Congress. In particular, the received political wisdom is that energy taxes are political suicide, following the ill-fated effort in the early days of the first Clinton administration to interest Congress in adopting a BTU tax. Yet it makes enormous sense to consider shifting much of the tax burden away from productive labor and toward discouraging environmentally damaging production and consumption decisions. Energy taxes can create powerful incentives to improve energy efficiency and to reduce overall energy consumption and they need not increase the overall tax burden if they are rebated in a proper manner. Finally, proponents of environmental law need to work on building creative, bipartisan coalitions to win the political battles of the future. For example, economic conservatives who oppose federal subsidies have proven to be strong supporters of efforts to eliminate some of the most environmentally destructive subsidy programs. It also may well be time to rethink some of the basic assumptions of the national environmental movement. However, the view expressed in the Death of Environmentalism that environmentalists should abandon any “pretense” of bipartisanship is a counsel of folly. Virtually every significant legislative advance environmental law has ever made has been the product of bipartisan support. Reports of the demise of environmentalism are not simply premature; they are wrong. But it will be necessary for environmental interests to think creatively about how to deal with a changing political climate. Initially environmental law responded to polluting industries by encouraging them to locate away from populated areas. This “zoning function” of the early common law later gave way to a kind of “technology-forcing” one as fear of liability inspired industry to develop new pollution control technology. Responding to new controls on various environmental risks in developed countries, industry exported them abroad. Today, this pattern is rapidly changing as developing countries upgrade their environmental standards and NGOs shine the spotlight of international publicity on companies who degrade the environment, even if such degradation is legal under domestic law. The United States once served as the catalyst for the rapid evolution of regulatory policy to protect the environment. Although the United States has sacrificed its leadership role on international environmental issues, it seems inevitable that our own self-interest eventually will force us to resume playing a more aggressive role in efforts to protect the planetary commons. NOTES AND QUESTIONS 1. Events since this article was written are consistent with some of the author's predictions. A new president is turning around U.S. environmental policy and seeking to reclaim a global leadership role for the U.S. on environmental issues. The Supreme Court's decisions in Massachusetts v. EPA (p. 110) and Summers v. Earth Island Institute show that environmental standing has again become a crucial battleground following the appointments of Chief Justice Roberts and Justice Alito to the U.S. Supreme Court. As a court in Ecuador prepares to render a decision in litigation against Chevron for oil pollution of the Oriente region of that country, it now seems likely that the company would have been better off litigating the merits of the plaintiffs' lawsuit in the New York court where it initially was filed under the Alien Tort Statute. Sheila McNulty, Chevron Expected to Come Under Fire Over Lawsuit in Ecuador, Financial Times, May 27, 2009, at 16. The Carbon Disclosure Project and the Power of Informed Investors
p. 11153 (5th edition): The application of requirements for corporate disclosure of “material risks” to concerns about climate change has been proposed for many years but has only recently become a serious trend. See, e.g., R. Repetto and D. Austin, Coming Clean: Corporate Disclosure of Financially Significant Environmental Risks (2000). The financial risks of climate change are most often discussed in relation to the potential consequences of future regulatory policies and therefore are of most relevance to firms with significant use of fossil fuels, or emissions of greenhouse gases such as electric utilities. This risk may be indirect such as with respect to automobile companies, insofar as regulatory policies may differentially favor companies producing more energy efficient models. Firms such as insurance companies may also be at risk from exposure to the impacts of climate change. Large emitters also arguably share a risk of future litigation or liability (equivalent to the positions of companies with superfund sites). Without reporting requirements, the existence of such risks has been compared to investor ignorance of toxic assets owned by financial institutions. As Vice-President Gore told an audience of investors, ““If you really take a fine-tooth comb and go through your portfolios, many of you are going to find them chock-full of subprime carbon assets.” H. Fernando, “Sub-Prime Carbon: Preparing for the Dangers of Hidden Carbon Risk” (2008). Pension funds and other large investors have been pushing for corporate disclosure of climate risks for several years through organizations such as the Carbon Disclosure Project (www.cdproject.net) and Ceres (www.ceres.org). The power of a survey sent of behalf of a substantial aggregation of global investors (collectively $57 trillion in 2008) is such that many of the world’s largest corporations now annually respond voluntarily to questionnaires soliciting information on their emissions and analysis of risks from climate change. According to CDP, the response rate for the 2008 Report was 67% of the FTSE 350, 64% of the S&P 500, and 77% of the Global 500. However, the level of detail varies considerably; most of those responding report on climate change risks and GHG emissions, but fewer report on life-time emissions from products they sell and still fewer emissions from suppliers. Nevertheless, the information provided is sufficient to indicate that the risks within industrial categories vary considerably – notably in the case of utilities, which vary greatly in their carbon intensity. In addition to voluntary reporting, several efforts have been initiated to require disclosure of climate change risks based on requirements of the Securities and Exchange Commission and state laws. In September 2007, a coalition of investors, state officials and environmental organizations filed a petition with the SEC arguing that the risks of climate change are “material” and thus should be disclosed in corporate annual reports. S. Mufson, “SEC Pressed to Require Climate-Risk Disclosures”, Wash Post, Sept. 18, 2007, p. D1. Courts have concluded that an omitted fact is “material” if there is “a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” The issues raised by the petition may be addressed by a 21st Century Disclosure Initiative launched by the SEC in June 2008 to review how disclosure requirements can be made more useful to shareholders. www.sec.gov/spotlight/disclosureinitiative/plan.shtml. Recent climate change legislative proposals have also included provisions to mandate climate change disclosure rules. In parallel with the federal petition, in September 2007 New York Attorney General Andrew Cuomo used provisions of the State’s Martin Act as the basis for issuing subpoenaes to five large energy companies planning to build coal-fired power plants seeking information to determine whether the companies had adequately disclosed the financial risks of prospective climate change regulation. Letters sent to the companies noted that omission of unfavorable information concerning climate change is misleading, which may be sufficient to meet the fraud provision of the Act. Berz and Morton, “Recent Developments in Corporate Disclosure of Climate Change Risk – Part 1, Metropolitan Corporate Counsel (April 2008) and Part 2 (May 2008). In August 2008, Xcel, one of the five subpoenaed companies, reached a settlement agreement with the State providing for disclosure of financial risks of lawsuits, future regulations, and the physical impacts of climate change. Confessore, “Xcel to Disclose Global Warming Risks,” New York Times, Aug. 28, 2008. NOTES AND QUESTIONS 1. The definition of “material” arguably has a self-fulfilling quality insofar as the more petitions and requests for information are made the more apparent it is that “a reasonable shareholder” would consider such information relevant to their vote. Another means by which shareholders can request information is through shareholder resolutions, which have been used increasingly to raise concerns about climate change. The 2008 annual meeting of Exxon shareholders proved noteworthy when several members of the Rockefeller family, the original owners of Standard Oil and Exxon, came out for several climate change related resolutions. None were approved. Krauss, “Exxon Rejects Proposals Backed by Rockefellers” NYT May 29, 2008. 2. The Carbon Disclosure Project began as an effort focused on companies based in Europe, the U.S. and other industrialized countries but in recent years has gradually begun extending its inquiry to large industrial firms in China, India, Brazil, and South Africa. What response rate would you expect from companies in these countries? See information at the CDP website, www.cdproject.net. 3. A major question about the CDP is the extent to which the information it provides is subsequently used by the sponsoring investment funds in their financial decisions. Some large pension funds, notably those of public employees in California, are increasingly linking their investment strategies to environmental concerns. However, the majority of institutional investors (including most universities and private foundations) have so far resisted this trend. Why? See Rosenthal, “Investment Funds Push an Environmental Agenda”, NYT, Nov. 27, 2008. |
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