Each year, the Environmental Law and Policy Annual Review (ELPAR)—a collaboration between Vanderbilt University Law School (VULS) and ELI—identifies articles that propose innovative law and policy approaches to pressing environmental problems. This year's awardees propose creative approaches to a range of cutting-edge environmental issues:
Utilizing the Federal Energy Regulatory Commission’s authority to price carbon emissions: Consistent with its embrace of economic efficiency principles, the Federal Energy Regulatory Commission should approve wholesale market operators’ plans that internalize the costs of CO2 emissions by setting a carbon price—an action that would be consistent with its authority under the Federal Power Act to correct market failures directly related to wholesale electricity rates. (Bethany Davis Noll & Burcin Unel, Markets, Externalities, and the Federal Power Act: The Federal Energy Regulatory Commission’s Authority to Price Carbon Dioxide Emissions, 27 N.Y.U. Envtl. L.J. 1).
Improving sustainability disclosures by companies: The Securities and Exchange Commission should require public companies to provide a sustainability disclosure and analysis section in their annual reports in which they identify the three sustainability issues most significant to their operations. This would be a first step toward improving the quality and comparability of sustainability disclosure by subjecting it to the standards applicable to securities reporting and increasing board oversight of key sustainability concerns. (Jill E. Fisch, Making Sustainability Disclosure Sustainable, 107 Geo. L.J. 923).
Vanderbilt University law students ELPAR 2019-2020 with ELI Senior Attorney Linda Breggin (front row second from right) and Professor Michael Vandenbergh (front row left).
Addressing the growing climate adaptation challenges faced by localities: To respond to interpretations of existing governmental duties and growing climate adaptation challenges faced by localities, the duties, immunities, and authorities of state and local governments should be reconsidered. Specifically, states should pass comprehensive statutes that implement increased sovereign immunity. This would serve as encouragement for creative decisionmaking that fulfills a more flexible, “adaptive” duty to maintain considering future conditions and is judged by a resilience standard incorporating the capacity of the system to adapt, and an adaptive authority to abandon. (Shana Campbell Jones; thomas ruppert; erin l. deady; heather payne; j. scott pippin; ling-yee huang; jason m. evans, roads to nowhere in four states: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J. Envtl. L. 67).
Incentivizing and funding more energy-efficient residential and commercial structures: Local governments can use energy exactions—or fees imposed on developers to offset the costs of development on the energy grid—to force developers to internalize the costs of development, incenting them to invest in low-carbon energy supply and build more energy-efficient residential and commercial structures, while also integrating better information about energy use and community values into energy planning. (Jim Rossi & Christopher Serkin, Energy Exactions, 104 Cornell L. Rev. 643).
In addition, three articles received honorable mention awards:
- Protecting the use of science in the administrative process: To encourage the integrity of science in the administrative process and prevent the political manipulation of science, agency staff’s scientific analysis should be firewalled from the input of policymakers and political appointees, subjected to rigorous expert peer review, and published independently and in advance of an agency rule or rule proposal with attribution to the staff authors. (Thomas O. McGarity & Wendy E. Wagner, Deregulation Using Stealth “Science” Strategies, 68 Duke L.J. 1719).
- Addressing distributional consequences of regulation: Despite the influential claims in the academic literature to the contrary, tax policy is ill-suited to provide compensation for significant environmental, health, and safety harm; instead, distributional consequences should become a core concern of the regulatory state and should be managed by an interagency working group in coordination with the Office of Information and Regulatory Affairs. (Richard L. Revesz, Regulation and Distribution, 93 N.Y.U. L. Rev. 1489).
- Realizing the benefits of citizen science: The opportunities presented by citizen science will be more fully realized if: (1) agencies’ top management formally embrace citizen science and “meet citizen scientists halfway” by establishing clear submission guidelines, developing protocols, and providing guidance; (2) citizen scientists adopt best practices such as partnering with academic researchers; (3) air programs use citizen-generated data to forward environmental justice by capturing neighborhood-level conditions and pinpointing proper monitor locations; (4) states address unnecessary legal barriers, such as restrictions on the use of certain technologies; and (5) citizen scientists develop a centralized process for validation and sharing of emerging technologies. (George Wyeth; Lee C. Paddock; Alison Parker; Robert L. Glicksman; Jecoliah Williams, The Impact of Citizen Environmental Science in the United States, 49 ELR 10237 (Mar. 2019)).
A list of the top 20 articles from this year’s selection process is available here.
Background on ELPAR
The selection process is part of a class taught by ELI Senior Attorney Linda Breggin and Vanderbilt Law Professor Michael Vandenbergh. The students work in collaboration with ELI Research Associate Anna Beeman, Environmental Law Reporter (ELR) Editor-in-Chief Jay Austin, and Associate Vice President of Communications & Publications Rachel Jean-Baptiste to select the articles that forward creative, persuasive, and feasible law and policy proposals. The methodology used is available here. After the students have narrowed the articles down to a pool of about 20, they meet with an expert advisory committee of environmental professionals who provide input on the articles.
Following article selection, ELI and VULS recruit expert commenters for each article from government, nongovernmental organizations, law firms, and corporations to join authors at the annual conferences in D.C. and Nashville, Tennessee. The conferences are typically attended by a range of stakeholders, including Capitol Hill and federal agency staff, trade press, law firm associates and partners, and nonprofit leaders.
The project culminates in a joint ELI/VULS publication, the August issue of ELR. It includes condensed versions of the selected articles and short written pieces by the commenters. The 2018 issue can be found here—or you can subscribe and obtain this year’s ELPAR issue when it is published in August.
2020 ELPAR Conferences
This year, ELPAR will host two events featuring the selected articles.
April 3, 2020, Conference at ELI Headquarters, Washington, D.C.
Three articles will be featured at the ELPAR Conference in D.C. this spring, with comments from policymakers and practitioners:
Prof. Bethany Davis Noll and Dr. Burcin Unel from New York University’s Institute for Policy Integrity will present key arguments from their timely article on the Federal Energy Regulatory Commission’s authority to price carbon emissions.
Prof. Jim Rossi and Prof. Christopher Serkin from Vanderbilt University Law School will outline their novel idea of energy exactions in their winning piece. Be sure to also check out ELI’s recent podcast where they discuss their proposal.
February 20, 2020, Symposium at Vanderbilt University Law School, Tennessee
A fourth article will be discussed at a symposium on February 20, 2020, at Vanderbilt University Law School. In Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, Prof. Shana Jones and her co-authors examine the growing climate adaptation challenges faced by localities, including road flooding due to sea-level rise.
Join us to investigate and discuss these innovative environmental law and policy proposals. For more information about the conferences, which are free and open to the public, please visit: https://www.eli.org/environmental-law-and-policy-annual-review. If you would like to sign up for the ELPAR mailing list to receive updates about conferences and other ELPAR events, please e-mail firstname.lastname@example.org.