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Shedding Light on Climate Risk in 2025: Upcoming Debates About the SEC\u27s Climate Disclosure Rule
Get PDFWhat will happen to the SEC’s March 2024 climate disclosure rule under the new U.S. federal administration? This paper seeks to contribute to the upcoming debates on this question after the 2024 election. Setting aside ideological considerations, this paper contends with novel questions of implementation and enforcement that the SEC will face in 2025, as it establishes climate disclosure policies under anticipated new leadership. Aided by an in-depth survey of existing climate reporting, the report discusses how companies are likely to determine what climate information is and is not material to their businesses and financial performance, and whether some companies might need to go beyond “bare minimum” compliance with the itemized requirements of the SEC rule to ensure their disclosure is complete and not misleading. It also looks at how climate disclosure will fit into the verification processes companies apply to SEC disclosure, a concern of many investors who want to make sure the information is reliable, but also a concern of companies given the potential cost of verification. The paper discusses enforcement of the climate rule, which is likely to occur mainly through SEC staff comments and guidance, and not a wave of abusive litigation. With or without the SEC’s leadership, other disclosure regimes are forcing companies to reevaluate their climate disclosure practices, making this a crucial period for the agency to grapple with its future role in the climate disclosure space. This Sabin Center/CCSI paper offers a framework and analysis to ground these questions as a new context for climate issues emerges in the United States
State Authority to Regulate Ocean Alkalinity Enhancement
Get PDFThis report provides a detailed examination of the regulatory landscape surrounding Ocean Alkalinity Enhancement (“OAE”), a form of marine carbon dioxide removal (“CDR”) that seeks to mitigate climate change. The report explores the domestic (U.S.) regulation of two of the most commonly discussed approaches to OAE: a mineral based approach and an electrolytic approach.
While no federal laws specifically mention OAE, the practice might be subject to various pollution control and other federal statutes and regulations. One key question is the extent to which federal law preempts state regulation of OAE. This report aims to answer that question by reviewing three key federal laws: the Marine Protection, Research, and Sanctuaries Act, the Clean Water Act and the Rivers and Harbors Act. The potential for state regulation depends on what federal law is applicable, which in turn, depends on the nature of the OAE activity in question
Reading Fanon
Get PDFThe 2024 Ambedkar Law Lectures focus on the writings of Frantz Fanon, the revolutionary theorist whose works were seminal to African anticolonialism. Born in 1925 in Martinique, Fanon fought in World War II, then practiced psychiatry in a hospital in French-controlled Algeria while supporting the country’s war for independence.
Fanon is one of the twentieth century’s most important theorists of colonialism, revolution, and freedom and the lectures explore Fanon’s theorizing of the relationship between violence and freedom through a study of his two major works, Black Skin, White Masks and The Wretched of the Earth
Redefining Comparative Constitutional Law: Essays for Mark Tushnet
No full textPart of the Oxford Comparative Constitutionalism series.
Over the past two decades, the field of comparative constitutional law has emerged as a major domain of scholarly inquiry. It has also been a notable feature in judicial practice. Many of the world\u27s leading courts are now composed of at least some members who engage with comparative materials, and thinking comparatively has developed into one of the most significant ways of engaging in constitutional analyses.
Redefining Comparative Constitutional Law: Essays for Mark Tushnet reflects upon the field of comparative constitutional law. Among the most prominent figures in the development of the field in its ongoing renaissance has been Mark Tushnet. This book uses the occasion of Professor Tushnet\u27s recent retirement from Harvard Law School to think critically about the field. Each essay takes up one of Professor Tushnet\u27s major recent themes which focuses on variations within liberal constitutionalism and the possibility of other forms of constitutionalism that find articulation under other political regimes.
In this book, leading scholars contribute to the debate over the nature of the field, including the role of empiricism and language; discussions of democracy and entrenchment; analyses of rights and courts; consideration of constitutional design; and explorations of the extent to which there are varieties of constitutionalism.
At a moment of renewed stress and political debate over the relationship between democracy and constitutionalism, Redefining Comparative Constitutional Law: Essays for Mark Tushnet offers timely insights into comparative analyses of constitutional rights. Academics and students alike will benefit from the essays that range across both methodological questions and substantive analysis in the development of constitutions throughout the globe.https://scholarship.law.columbia.edu/books/1395/thumbnail.jp
How the European Union Should Respond to Trump\u27s Tariffs
No full textPresident-elect Trump has threatened to increase United States tariffs to 60 percent on imports from China and 10 percent to 20 percent on imports from other trading partners, including the European Union. In doing so the US would be ignoring its World Trade Organisation commitments and would also rollback the substantial liberalisation that has taken place during the past 80 years, with a potentially major negative impact on the world economy.
In response to this threat, the EU should pursue a three-pronged strategy.
First, the EU should engage bilaterally with the US to seek to avoid the imposition of tariffs. This could include an offer to consider measures on facilitation of bilateral trade and on economic security cooperation, while making clear that any trade measures adopted by the EU will be consistent with WTO rules. This offer should be backed up with a credible threat of retaliation that could be implemented if the US decides to impose tariffs on EU exports. Retaliation could take the form of a negative list – the EU would increase its tariffs on all US exports to the same level as the US tariffs, except for products imported from the US identified as crucial for the EU.
Second, the EU should act to preserve a functioning rules-based multilateral trading system, including on dispute settlement, and should continue to pursue WTO reform. To this end, the EU should build a coalition of countries including key players from the Global North and the Global South ready to lead in this endeavour.
Third, the EU should expand its network of bilateral and regional preferential trade agreements. The priority should be ratification of the agreement with Mercosur, but the EU should also aim to improve trade relations with the United Kingdom and Switzerland and to further strengthen partnerships in the Indo-Pacific region, and with Africa
Don\u27t Go Chasing Waterfalls : Fiduciary Duties in Venture Capital Backed Startups
Get PDFWe develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these misalignments, they can only do so categorically when management prioritizes preferred shareholders’ interests. The Trados doctrine, however, generally obligates management to prioritize common shareholders’ interests. Our model offers a precise mechanism for how capital structure, corporate governance, and legal doctrine jointly determine firms’ value
Common but Differentiated Constitutionalisms: Does ‘Environmental Constitutionalism’ Offer Realistic Policy Options for Improving UN Environmental Law and Governance? US and Latin American Perspectives
Get PDFEnvironmental law and governance have taken many different forms in the Americas in response to climate change mitigation. This contribution describes recent developments in the United States, Colombia, and Brazil, illustrating the divergent approaches to climate protection. The chapter highlights the common but differentiated ways in which the three countries in the Americas approach environment constitutionalism in the midst of the climate crisis. On one hand, Brazil and Colombia adopt a rights-based approach to tackle complex issues related to environmental law and governance in their context-specific responses to climate protection. In particular, the courts of Colombia and Brazil have been global pioneers in the recognition of environmental and even climate rights to galvanize political action. On the other, the United States uses a combination of market-based approaches and administrative enforcement of broad legislative principles to advance well-being, in the belief that markets, rather than political or judicial elites, are more likely to be responsive to both existing conditions and popular will. The Inflation Reduction Act of 2022, which contains the most innovative and ambitious climate mitigation goals in the country’s history, exemplifies this approach. While the United States may provide a model of political and economic approaches to climate mitigation, courts in Latin America, as exemplified by Brazil and Colombia, are providing a model of progressive rights-based action. This contribution analyzes these national examples from a comparative perspective, assessing their promise for climate mitigation
Legal Issues in Oceanic Transport of Carbon Dioxide for Sequestration
Get PDFA number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships to transport the carbon dioxide that has been captured in Europe to the United States for sequestration. This report examines the laws that could be applicable to this shipping. Much of the report would also be relevant to the shipping of carbon dioxide from other origins to other destinations, though domestic laws at either end of the trip may also be relevant.
This report, which is the first to comprehensively study international transport of carbon dioxide, makes several original contributions. First, it highlights the current legal uncertainties involving the cross-border shipping of carbon dioxide for sequestration. Second, it illustrates how market-based mechanisms under the Paris Climate Agreement do and do not relate to carbon dioxide shipping and sequestration, and the need for clarification. Third, the report provides a detailed analysis of the domestic U.S. laws applicable to the cross-border shipping and sequestration of carbon dioxide, and analyzes the legal consequences of the construction of a pier (or jetty) to enable the receipt of carbon dioxide shipped from overseas. Finally, liability regimes studied go beyond maritime conventions to include contractual liability and U.S. admiralty and maritime jurisdiction.
Ultimately, the report is grounded in a global perspective, including regional agreements involving developing countries, for instance, departing from the Eurocentric approach that has prevailed in the existing literature so far.
This report is organized as follows. Chapter 1 introduces essential definitions and details the academic and practical interest in the cross-border shipping of carbon dioxide for permanent storage. Chapter 2 provides a technical overview of relevant issues involved in the different stages of carbon dioxide shipping. It also contextualizes CCS in the context of climate agreements. Chapter 3 zooms in the international treaties applicable to the cross-border transportation of carbon dioxide for permanent storage overseas. Chapter 4 pivots to how the international shipping of carbon dioxide from the European Union for permanent storage in the United States may fit under Nationally Determined Contributions (NDCs) and the market-based mechanisms of Article 6 of the Paris Agreement. Chapter 5 reviews the domestic legislation of the United States that may be applicable to the international shipping of carbon dioxide for permanent storage in the United States, whereas Chapter 6 presents the scope of environmental reviews that may apply under the National Environmental Policy Act (NEPA). Chapter 7 analyzes the liability regimes involved in such shipping
California and Europe Require Scope 3 Climate Disclosures Despite SEC Retreat
Get PDFIn March 2022, the U.S. Securities and Exchange Commission (SEC) issued proposed regulations on disclosure of climate-related information by public companies, including their material Scope 3 greenhouse gas (GHG) emissions. This created a firestorm, drawing more than 24,000 comment letters.On March 6, 2024, the SEC issued its final rule, significantly narrowing the requirements and, notably, eliminating the Scope 3 disclosures. Companies that do not want to make Scope 3 disclosures should not rejoice and environmental advocates and others who do want to see such disclosures should not despair, because new requirements from both California and Europe do mandate this information and apply to most large companies operating in the United States
Fair Use v. Free Use: A Comparative Study of American and Russian Copyright Exemptions
Get PDFMany U.S. lawyers are under the well-deserved, but still not entirely accurate, impression that copyright infringement in Russia is a huge free-for-all. This comparative paper, which juxtaposes Russian and American copyright exemptions, seeks to partially refute that skeptic view by showing that, in fact, Russian copyright law has developed a relatively coherent system of exceptions and limitations to exclusive rights. This paper begins with a brief overview of Russian copyright law and general remarks on its exemptions. It then focuses on statutory and, where appropriate, case-law comparison of particular copyright exemptions in the Part 4 of the Russian Civil Code and the U.S. Copyright Act. The paper is summed up with a Conclusion and an Appendix containing a comparative chart on Russian and American copyright law exceptions and limitations