Highlighting Innovative Legal Scholarship: Environmental Law and Policy Annual Review 2022

Wednesday, June 8, 2022
Linda Breggin

Senior Attorney; Director of the Center for State, Tribal, and Local Environmental Programs

Each year, the Environmental Law and Policy Annual Review (ELPAR)—a collaboration between Vanderbilt University Law School and ELI—identifies some of the year’s best academic articles that present legal and policy solutions to pressing environmental problems. ELI Senior Attorney Linda Breggin, Vanderbilt Law Prof. Michael Vandenbergh, and students in a Vanderbilt law class select 20 of the most creative, persuasive, and feasible proposals in the environmental legal literature. They then consult with an expert advisory committee of environmental professionals to select the top three to five articles to highlight at an annual ELPAR conference and to include in condensed form in a special issue of the ELRThe Environmental Law Reporter.

Book pages

This year, ELPAR hosted two events, a hybrid symposium at Vanderbilt Law School and a virtual conference. (Recordings of the events can be found here and here.) The Vanderbilt Symposium highlighted the article, “Turning Participation Into Power: A Water Justice Case Study” by University of Baltimore Law School Associate Professor of Law Jaime Lee. It also included a discussion on advancing environmental justice through the use of a new participatory governance approach, the “Constituent Empowerment Model,” which was implemented in Baltimore. Speakers included LaTricea D. Adams from Black Millennials for Flint, Amy Rao Mohan from Sherrard Roe Voigt & Harbison, PLC, Chandra Taylor-Sawyer from Southern Environmental Law Center, and Jennifer Tribble from the Tennessee Department of Environment and Conservation. In total, well over 100 people joined in person and virtually.

The virtual ELPAR Conference featured three articles representing some of the year’s most compelling legal scholarship. They include “Environmental Citizen Suits and the Inequities of Races to the Top” by David Adelman and Jori Reilly-Diakun, which argues that new empirical research demonstrates that citizen suits are filed in a small number of states with strong public support for environmental policies and robust state programs—not in states where policies and enforcement lag. The authors propose several policies, both within and outside of the federal government, to mitigate the inequitable distribution of citizen suits and the resource constraints that so often limit access to them.

“Caremark and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective Caremark and EESG” by Leo Strine, Kirby Smith, and Reilly Steel argues that employee, environmental, social, and governance factors (EESG) should be considered an extension of a corporate board’s compliance duties under Caremark. By integrating compliance and EESG, including delegating compliance and EESG oversight to the same board committee and managers, the authors propose corporations can capitalize on their existing structures and resources to meet the demand for improved corporate citizenship in a cost-effective manner that does not add undue burdens to employees or directors.

Finally, “Rethinking Grid Governance for the Climate Change Era” by Shelley Welton argues that to prevent fossil fuel companies from obstructing the clean energy transition through Regional Transmission Organizations (RTOs), the Federal Energy Regulatory Commission or Congress should consider: (1) reducing RTOs’ responsibilities; (2) increasing avenues for state and federal oversight; (3) monitoring corporate agglomeration; and (4) exploring public ownership or control over the grid.

Leading practitioners—Bina Reddy, Howard Learner, Jonas Kron, Margaret Peloso, Todd Phillips, Tom Hassenboehler, Casey Roberts, and Rebecca Tepper—discussed the articles’ proposals. Over 200 people attended the conference.

Shortened versions of the articles, written comments from the speakers, and summaries of the two honorable mention articles—“Holding Polluters Accountable in Times of Climate and COVID Risk: The Problems With ‘Emergency’ Enforcement Waivers” by Victor Flatt and “Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands” by Monte Mills and Martin Nie—will be published in the August issue of ELR. Check out the ELPAR page in August to read the condensed articles and comments. In addition, a podcast with Profs. Monte Mills and Martin Nie discussing their article is available here.

For more information, the list of the top 20 articles selected this year can be found here. And check the ELPAR page in the fall to learn about the 2022-2023 articles and to keep up to date on our work!