University of California Hastings College of the Law
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The Australian Experience with Environmental Offsets: An Illusory Tool for Addressing Biodiversity Loss and Climate Change?
No full textRecent studies, including by administrative integrity bodies, Parliamentary committees and former ‘insiders’ of Australian regulatory bodies, show serious shortcomings in the operation of biodiversity and carbon offsets in Australia. Specifically, the benefits attributed to the offset mechanism in both contexts have been criticised as illusory in practice. This leads us to question whether it is possible to accomplish carbon emission reduction and biodiversity conservation goals through a governance framework that includes offsetting. We assess the evolution of offsets as a regulatory and voluntary mechanism, offering a critical perspective on the Australian experience. Australia has been an enthusiastic early adopter of both forms of offset, and may be perceived internationally as an exemplar. While we welcome the Australian Government’s recent commitments to international climate mitigation and biodiversity conservation goals, we argue that, by continuing to pursue offsets as part of its biodiversity conservation and climate mitigation strategies, Australian lawmakers may be committing to a course of action that will prevent it from meeting those same commitments
Autonomy and Free Thought in Brain- Computer Interactions: Review of Legal Precedent for Precautionary Regulation of Consumer Products
No full textThe expanding use of neurotechnologies in consumer products increases the risks to human rights such as autonomy and free thought. While potentially beneficial in clinical applications, technologies such as brain implants and EEG-enabled wearable devices pose serious concerns about mental and psychological manipulation of human beings. In the US in particular, law and policy are lagging behind technical developments, thereby increasing the risks of abuse and misuse from commercial neurotechnologies. This article focuses on commercial neurotechnologies, which are distinct from medical neurotechnologies for clinical diagnoses, and seeks to guard against human rights risks to users by overcoming that regulatory gap. The article contends that harm to users’ free thought and autonomy from consumer neurotechnologies are foreseeable and known but obscured by market incentives and by the technologies’ dual, therapeutic purpose, and it argues that preemptory regulation is both necessary and supported by precedent. To that end, an analysis of precedents from institutions of governance such as the precautionary principle, moral utility, and human rights, along with current initiatives in other jurisdictions (Chile, Spain, the UN), are provided. This analysis points to possible broad and narrow approaches for minimizing the risks from neurotechnologies. Specifically, the article stipulates that the expansion of patent law based on the moral utility doctrine, in combination with enhanced enforcement by FTC and lobbying by the neurorights community, might to be the most promising approach in the U.S
Bring Back the Milkman: Legal Structure and Feasibility of a Circular Economy Within the United States Food and Product Packaging Distribution System
No full textCryptocurrency — Legally Navigating The “Highway to Climate Hell”
No full textThe U.S. electric system is regarded as history’s greatest engineering achievement and the second most important invention in history. This Article analyzes the provocative legal ‘dark side’ of crypto currency now compromising the sustainability and resiliency of the U.S. electric system. Crypto currency miners have migrated in mass during the 2020s from Asia to several areas of the U.S., choosing inefficiently to waste large amounts of fossil-fuel and electric power. Scholars suggest that Bitcoin’s indirect carbon emissions at the current rate, alone with no other increases by world nations (which in fact are still increasing rapidly) are enough to push global warming beyond the Paris Agreement commitment to stay below an increase in temperature of two degrees Celsius.
The Secretary-General of the United Nations states that we are travelling now on the “highway to climate hell.” This Article analyzes the legal ‘dark side’ of crypto currency, the Constitution, and recent Supreme Court precedent:
• Notwithstanding that climate policy is federal law and that electric power is the key sector of the economy warming climate, the federal government has no authority over crypto mining and its excessive electric power use emitting greenhouse gases;
• Constitutional and common law precedent limiting government crypto control;
• Constitutional separation of powers constricting Executive Branch action on climate and electric power matters, culminating in the West Virginia v. EPA (2022) decision;
• Equal Protection Clause precedent blocking state actions restricting crypto power use; and
• A suite of failed federal and state attempts to legally regulate crypto mining.
This Article highlights and analyzes U.S. crypto miners choosing fossil-fuel- fired power extending the life of polluting coal plants otherwise scheduled to close. This frustrates President Biden’s Inflation Reduction Act devoting hundreds of billions of dollars to shift the U.S. economy to renewable energy. This frustration is backstopped now by hundreds of cities in 31 states plus several states, supported by Supreme Court precedent, blocking effective rapid deployment of Biden’s sustainable renewable energy infrastructure laws and thus significantly warming climate.
In its final sections, this Article constructs legal ‘work-arounds’ to regulate crypto power that do not require any change of U.S. law or any action that contradicts the Constitution’s separation of powers. States have discretion strategically to reconstruct certain incentives and moratoria to reshape the use of power resources for crypto mining that will shift resource use in order better to sustain a fragile climate. These techniques are necessary as well to preserve resiliency of the U.S. electric power system and to meet U.S. international climate pledges to maintain a livable climate. The final sections propose a ‘win-win’ outcome
