We at the Harvard Environmental Law Review are big fans of Yale Journal on Regulation’s Notice & Comment blog, and we have especially enjoyed reading Chris Walker’s monthly Administrative Law SSRN Reading List (October edition here). We haven’t seen anything similar for new environmental law scholarship though, so we have decided to try to fill this gap ourselves. HELR is pleased to present our first recap of (some of) the most interesting environmental law articles that have been posted to the Social Science Research Network (SSRN) in the past 60 days.
If you haven’t visited SSRN’s Legal Scholarship Network yet, you should. Law professors and practitioners often post works in progress and drafts that have been accepted for publication. Each article page provides statistics on abstract views and downloads so you can readily see which articles are making waves. SSRN also gives authors their own homepages, so you can click authors names to find more of their papers. And, perhaps best of all, SSRN is completely free to use.
Unfortunately for followers of environmental law, our broad field is fragmented online. SSRN has separate sites for its Environmental Law & Policy eJournal, Property, Land Use & Real Estate Law eJournal, U.S. Administrative Law eJournal, Climate Change Law & Policy eJournal, International Environmental Law eJournal, Natural Resources Law & Policy eJournal, Environmental Justice & Sustainability eJournal, Energy Law & Policy eJournal, Protected Lands Law & Policy eJournal, Food Law & Policy eJournal, and Animal Law eJournal (those are sorted in order of downloads on SSRN, by the way).
Rather than pick one of these eleven eJournals to follow or cover them all, we will have one staff member each month review these eJournals’ “Recent Top Papers” lists and use his or her judgment to curate a roundup of the ten most interesting new pieces overall. We hope you enjoy our selections!
Without further ado, we give you HELR’s reading list for this past month:
- Intra-Agency Coordination by Jennifer Nou (129 Harvard Law Review __ (2015, Forthcoming)) (exploring the way that agency heads manage “internal hierarchies and procedures” within an agency and considering normative implications of agency management for political and legal oversight)
- Antimonopoly in Public Land Law by Michael C. Blumm and Kara Tebeau (28 Georgetown Environmental Law Review no. 2 (2016), Forthcoming) (examining the theme of antimonopoly as a “cardinal feature” of American public land law over time and arguing that it should be preserved)
- Distributed Reliability by Amy L. Stein (University of Colorado Law Review, Forthcoming) (assessing the shift toward “customer-owned generation and related services like energy storage and demand response,” which has created new ownership models that are in tension with the existing regulatory regime for the electricity grid, and considering opportunities for enhanced coordination between utilities and these customers)
- Potential Liability of Governments for Failure to Prepare for Climate Change by Jennifer Klein, Columbia University (Sabin Center for Climate Change Law, August 2015) (exploring three potential legal claims against state and local governments for failing to prepare for the risks of climate change: negligence, fraud, and takings)
- FERC’s Expansive Authority to Transform the Electric Grid by Joel B. Eisen (UC Davis Law Review, Vol. 49, 2016, Forthcoming) (using a hundred-year historical analysis to conclude that Federal Energy Regulatory Commission (FERC) has “ample authority to pursue broad environmental and energy goals in transforming the electric grid,” for example through demand response or a carbon price)
- How Local Discrimination Can Promote Global Public Goods by Timothy Meyer (Boston University Law Review, Vol. 95, December 2015, Forthcoming) (arguing that state renewable energy programs provide benefits to global public welfare that the WTO failed to take into account when it found that local renewable energy subsidies unlawfully discriminate against foreign products)
- Deference for Realists: The Resurgent Major Questions Doctrine as a Chevron Safety Valve by Nathan D. Richardson (tracing the “major questions” doctrine cases and asking whether the doctrine—which is used to avoid Chevron deference—is a welcome development; the paper argues that this question is especially important as litigation of the EPA’s Clean Power Plan “bears all of the hallmarks of a major questions case”)
- Modeling Uncertainty in Climate Change: A Multi‐Model Comparison by Kenneth Gillingham et al. (Cowles Foundation Discussion Paper No. 2022) (presenting the results of the first comprehensive study of uncertainty in climate change modeling, looking at both model and parametric uncertainties; the paper finds that “parametric uncertainty is more important than uncertainty in model structure” and offers insight into tail events)
- Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife by John D. Echeverria and Michael C. Blumm (Maryland Law Review, Forthcoming) (examining to what extent the Supreme Court’s decision in Horne v. Department of Agriculture extends the Court’s takings jurisprudence by applying per se analysis and assessing the long-term impacts of the decision on wildlife)
- Global Development Goals: If at All, Why, When and How? by Sanjay G. Reddy and Ingrid Harvold Kvangraven (exploring foundational questions of global development goals: why have them, what function do they serve, and how might they be successful; the authors contend that “higher-level goals may play a useful role if the practical approach to them is embedded in a holistic and integrated vision of a better world”)