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Climate Last Resorts
No full textThe United States faces a climate crisis, an affordable housing crisis, and, linking them both, an insurance crisis. At the intersection of these concurrent predicaments lie a set of little-known but surprisingly impactful policies: state Insurer of Last Resort (ILR) programs. ILRs are state policies that provide property insurance when private insurance is unavailable, such as when private insurers determine that climate hazards are too risky to underwrite.
This Article argues that long-overlooked ILR programs are quickly becoming lynchpins for addressing some of today’s most pressing concerns around climate, housing, and insurance. Accordingly, ILRs bear urgent attention and reevaluation. In short, ILR programs are likely the most important policies that you’ve never heard of.
Building on this observation, the Article makes three main contributions. First, it identifies the power of ILR programs as intersectional policy responses to the concurrent insurance, climate, and housing crises.
Second, it surveys existing ILR policies, finding that they are relics of sixty-year-old decisions, and that states have seemingly overlooked the opportunities ILRs provide for tailored responses to insurance, climate, and housing concerns.
Third, it analyzes insurance data and state climate policy trends to show that many legacy ILR programs appear out of step with insurance withdrawal threats and state climate policy preferences. This suggests that states should consider revising their ILR programs in the near future
Corporate Climate Targets: Science, Discretion, and Climate-Washing
Get PDFThe use of corporate climate targets has exploded in recent years and now encompasses many of the world\u27s largest and most profitable companies. In a corporate climate target, a company voluntarily commits to reducing its emissions in line with climate science and the Paris Agreement. The broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise climate-washing concerns; i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets and explores different types of climate-washing concerns when commitments turn out to be exaggerated. This Article\u27s analysis focuses on corporate targets issued as part of the Science-Based Targets Initiative (SBTi), the preeminent standard-setting body in the field. The Article finds that the role of science in SBTi\u27s rule framework is more complex than it first appears. SBTi rules employ a scientific concept known as the global carbon budget, but scientific knowledge alone cannot translate that carbon budget, which is indeed global, to company-level targets. When SBTi provides that translation in its rules, it is not merely deriving targets from science, but exercising considerable discretion. That discretion, and its distributive implications, are currently under-appreciated in both academia and practice. Building on this analysis, the Article turns to articulating climate-washing concerns in corporate targets and identifying relevant theories of liability. The key, it argues, is to move beyond the instinct that a target can only amount to climate-washing if it is in direct conflict with science. Because science itself cannot determine appropriate company-level targets, the Article helps to identify other avenues through which advocates may pursue climate-washing liability
NIST\u27s Software Un-Standards
No full textThe National Institute of Standards and Technology (NIST) has become a beacon of hope for those who trust in federal standards for software and AI safety. Moreover, lawmakers and commentators have indicated that compliance with NIST standards ought to shield entities from liability. With more than a century of expertise in scientific research and standard setting, NIST would seem to be uniquely qualified to develop such standards.
But as I argue in this Article, this faith is misplaced. NIST’s latest forays in risk management frameworks disavow concrete metrics or outcomes, and solicit voluntary participation instead of providing stable mandates. That open-ended approach can be attributed to the reversal of NIST\u27s prior efforts to promulgate federal software standards during the 1970s and 1980s. The failure of those federal regulatory efforts highlights fundamental challenges inherent in software development that continue to persist today.
Policymakers should draw upon the lessons of NIST\u27s experience and recognize that federal standards are unlikely to be the silver bullet. Instead, they should heed NIST\u27s admonition that the practice of software development remains deeply fragmented for other intrinsic reasons. Any effort to establish a universal standard of care must grapple with the need to accommodate the broad heterogeneity of accepted practices in the field
