By Brian F. Havel & Gabriel S. Sanchez
It is impossible to predict the eventual stopping place of the climate change discourse. If current evidence is to be believed, international dialogue will intensify as we draw nearer to the hypothesized “zero hour” of irreparable catastrophe. Stepping back from any prophesies of doom, we conclude with two statements that we believe encapsulate this Article’s contribution to the discourse. First, a plausible aviation emissions reduction agreement can ensure that aviation “does its part” by reducing the sector’s emissions to a sustainable level without sacrificing its economic viability. Second, the convergence of stakeholder interests within international aviation will further ensure that the agreement can serve as a lead sector for future (and wider) international collaboration on climate change. And although the agreement framework proposed here is incremental rather than “big bang,” the principle of International Paretianism indicates that the former is more feasible than the latter. Under the canopy of a sectoral treaty among like-minded states, international aviation can responsibly reduce its environmental impact while remaining a force for dynamic economic growth in the coming century.
Cite as: Brian F. Havel & Gabriel S. Sanchez, Toward an International Aviation Emissions Agreement, 36 Harv. Envtl. L. Rev. 351 (2012).
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By Tyler McNish
Tradable property rights-based carbon offsets are widely used as a policy tool for combating the greenhouse gas emissions that cause climate change. However, academics, non-governmental organizations, and market participants have criticized carbon offset mechanisms’ economic inefficiency and dubious environmental benefits. This Article traces these criticisms to the microeconomic structure of the offset market. Offsets were envisioned as a way to use self-regulating market forces to stimulate investment in emissions mitigation projects efficiently, but tradable property rights are inherently ill-suited to that task. Consequently, policymakers ended up designing a Rube Goldberg-esque scheme that is neither efficient nor self-regulating. The financial intermediation industry through which offsets are certified and traded consumes approximately thirty percent of all carbon offset funding, such that less than seventy cents out of each dollar invested in international greenhouse gas mitigation reaches its target. At the same time, the private sector-led system inappropriately cabins the authority of public sector regulators — the only market participants with an incentive to ensure the environmental quality of the assets exchanged. Systemic risk is also a concern: the offset mechanism’s substitution of abstract, tradable securities for simpler contract-based lending bears an uncanny resemblance to developments in the securitized mortgage lending industry prior to the 2008 crisis. Direct subsidies issued to emissions-reducing projects by a publicly administered fund could likely achieve better environmental outcomes at lower cost.
Cite as: Tyler McNish, Carbon Offsets are a Bridge Too Far in the Tradable Property Rights Revolution, 36 Harv. Envtl. L. Rev. 387 (2012).
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By David R. Brody
On June 20, 2011, the Supreme Court issued a unanimous and straightforward decision that the Clean Air Act displaces federal common law public nuisance claims against greenhouse gas emitters. The decision solidifies
the Environmental Protection Agency (“EPA”)’s primacy, established in Massachusetts v. EPA, as the climate change regulator. In American Electric Power Co. v. Connecticut (“AEP”), the Court ruled that displacement occurs when a statute “speaks directly to the question at issue.” This Comment dissects the Court’s decision, analyzes its impact on environmental actions under federal common law, and discusses how it builds on Massachusetts.
Cite as: David R. Brody, Comment, American Electric Power Co. v. Connecticut, 36 Harv. Envtl. L. Rev. 297 (2012).
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By Jonathan H. Adler
Stabilizing atmospheric concentrations of greenhouse gases at double their pre-industrial levels (or lower) will require emission reductions far in excess of what can be achieved at a politically acceptable cost with current or projected levels of technology. Substantial technological innovation is required if the nations of the world are to come anywhere close to proposed emission reduction targets. Neither traditional federal support for research and development of new technologies nor traditional command-and-control regulations are likely to spur sufficient innovation. Technology inducement prizes, on the other hand, have the potential to significantly accelerate the rate of technological innovation in the energy sector. This Article outlines the theory and history of the use of inducement prizes to encourage and direct inventive efforts and technological innovation and identifies several comparative advantages inducement prizes have over traditional grants and subsidies for encouraging the invention and development of climate-friendly technologies. While no policy measure guarantees technological innovation, greater reliance on inducement prizes would increase the likelihood of developing and deploying needed technologies in time to alter the world’s climate future. Whatever their faults in other contexts, prizes are particularly well suited to the climate policy challenge.
Cite as: Jonathan H. Adler, Eyes on a Climate Prize: Rewarding Energy Innovation to Achieve Climate Stabilization, 35 Harv. Envtl. L. Rev. 1 (2011).
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By Katrina Fischer Kuh
The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism.
Using climate change and individual greenhouse gas (“GHG”) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed to capture individual environmental harms. Local information and community-level implementation may enhance norm management efforts designed to influence GHG-emitting behaviors by (1) allowing for the identification of concrete behaviors that are feasible to target through norm management in a given community; (2) informing the design and content of norm campaigns, including the selection of the abstract norm that will form the basis of the appeal for specific behavioral change; and (3) facilitating effective implementation strategies. This framework supports a preference for local action expressed, but to date largely unexamined, in the broader norm management literature. Additionally, the Article argues that obstacles to using mandates to influence GHG-emitting behaviors may be less formidable when mandates are developed and enforced locally. Local development and enforcement of mandates can reduce intrusion objections because (1) individuals are accustomed to local control over day-today behaviors; (2) familiarity with local attitudes and practices enables the design of mandates that avoid intrusion objections; and (3) local governments are in a better position to structure time, place, and manner restrictions that channel behavior while preserving some individual choice. Local design and enforcement of mandates may also minimize the key enforcement challenges of expense, numerosity, and (in)visibility.
Cite as: Katrina Fischer Kuh, Capturing Individual Harms, 35 Harv. Envtl. L. Rev. 155 (2011).
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