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Legal Asynchrony: Constitutional “Bridges” Inverting Elemental U.S. Technology
Full text linkThe 2022 Biden Inflation Reduction Act (“IRA”) and the 2021 Infrastructure Investment and Jobs Act (“IIJA”), together providing for an unprecedented $1.7 trillion in spending, were enacted to construct a sustainable legal U.S. exit ramp from what the Secretary-General of the United Nations recently described as a “highway to climate hell with our foot still on the accelerator.” This Article analyzes a critical legal missing link in these Acts that is now causing the U.S. economy to do the opposite of its intended climate change mitigation, given: • A necessary eight-fold increase in current renewable electric power, requiring adding the entire amount of existing renewable power again every eighteen months; • A shortage of rare-earth and critical minerals now required in quantities ten-to-fifteen times greater to produce one unit of renewable electricity compared to current power; and • How the federal IRA plan is being legally blocked by hundreds of cities in thirty-one states,
notwithstanding the Constitution’s Supremacy Clause. The Supreme Court in 2022 announced its new “major questions doctrine” in West Virginia v. Environmental Protection Agency and applied it to limit presidential discretion regarding matters of electric power technology and climate change. States and cities are now deploying their constitutional authority, supported by Supreme Court decisions, to block a sustainable transition. The final two Sections of this Article design an alternative sustainable legal “bridge” within existing U.S. law that does not require any congressional action and that is immediately implementable at lower cost than business-as-usual. This decentralized legal bridge also features more efficient use of energy and can be implemented immediately by local governments, state governments, and the federal government. This legal bridge can span the widening gap between these new laws’ asynchronous and rapidly increasing electric demand compared to available interconnected zero-carbon renewable power supply until these two become re-synchronized. This legal bridge sustainably operates without worsening climate change
Force Majeure and the Law of the Colorado River: The Confluence of Climate Change, Contracts, and the Constitution
Full text linkClimate change is causing significant, permanent changes to the natural world. In the Colorado River Basin, experts forecast that rising temperatures will cause the spread of a drier, more arid climate across the region. The effects of this desertification are already being felt: less rainfall, the loss of deciduous forests, wildfires that engulf urban areas, and a projected 20 to 30 percent reduction in flows on the Colorado River by mid-century. The net effect is an existential crisis for the forty million people that reside in the Colorado River’s watershed. Mitigating the effects of climate change requires swift action. However, the legal framework that governs the waters of the Colorado River is a web of byzantine agreements that is anything but swift to navigate. This is reflected in a saying common amongst practitioners who specialize in what is known as the Law of the River: the Colorado River is burdened with nineteenth-century water law, twentieth-century infrastructure, and twenty-first century problems. How can a legal governance structure negotiated before climate change was understood adapt to such uncharted waters? This Note explores whether global temperature rises could constitute a force majeure—or Act of God—event that the signatories to the Colorado River Compact could argue releases them from legal obligations made more than a century ago, when climate change was not as foreseeable as it is now. Force majeure is a legal theory that parties can be released from their contractual obligations if an unforeseen and extraordinary event intervenes, making compliance with the terms of the contract impossible. On the Colorado River, future projections of a greatly reduced river mean that the Compact signatories will be at an ever-increasing risk of violating their interstate compact obligations. While the Colorado River Compact has governed for more than one hundred years, it seems impossible that it can govern for one hundred more. A force majeure argument could be the lever necessary for the parties to break free of the rigid compact and pave the way for a more flexible and equitable water management future
LexisNexis’s Contract with ICE as Unjust Enrichment
Full text linkFor $22.1 million, LexisNexis is currently helping Immigration and Customs Enforcement (ICE) surveil, detain, and deport noncitizens. Like other data brokers, LexisNexis’s role in the collection and sale of personal information has largely been ignored by regulators, judges, and the public. A recent lawsuit against LexisNexis in Illinois includes, among other claims, a claim of unjust enrichment. This often misunderstood and unpopular claim has a complex history which presents both a barrier to relief and an opportunity for advocates to push courts to clarify the doctrine. This Note examines the history of the theory of unjust enrichment, surveys its recent application in data privacy litigation, and argues that the contract between LexisNexis and ICE should be considered a case of unjust enrichment
Transitioning to Regenerative Agriculture One French Fry at a Time
Full text linkRegenerative agriculture—a farming practice that sequesters atmospheric carbon dioxide (CO2) into the soil—has potential to turn into big business in this climate crisis. If farmers can accurately measure the amount of trapped carbon in their soil, they can sell that stored carbon as a “carbon credit,” a tradeable certificate representing the right to emit one metric ton of carbon dioxide (CO2) or the equivalent amount of another greenhouse gas. As more than seventy countries race to cut greenhouse gas emissions by 2050 in order to meet Paris Agreement1 goals, carbon credits are becoming the “new currency” to meet or exceed national and global targets. Carbon credits can also reduce exposure to legal liability from shareholder misrepresentation, fraud and greenwashing claims that may arise when firms advertise corporate environmental, social, and governance (“ESG”) policies.
While regenerative agriculture is gaining momentum, investors are cautious about the carbon sequestering potential it holds. Of the top one hundred food companies in the world, fifty-eight are working on regenerative agriculture projects to sequester carbon—either as small pilots, by meeting specific acreage targets (like General Mills, Pepsi, and Cargill), or by tying them to larger business strategies (like Nestlé).2 All the while, critics say that carbon sequestration projects are ‘unquantifiable,’ ‘unreliable,’ and evidence of ‘greenwashing.’
If regenerative agriculture is to play a larger role in helping the US reach a goal of “net-zero” by 2050, regulations are needed to reassure buyers that carbon credits from carbon sequestration are measurable and verifiable, and to reassure sellers that their interests will be protected. Regulations are necessary to: (1) raise market confidence by reducing information asymmetry in contracting, (2) provide a uniform definition and standards for regenerative agricultural practices, (3) improve measurements of regenerative agriculture outcomes and soil carbon, and (4) require public companies to disclose the role that carbon offsets play in their climate-related business strategy. Filling gaps in food law and environmental governance literatures, this Article is the first to analyze the carbon market using case studies from food market participants. The Article proposes regulatory changes to help mitigate the risks associated with the trading of carbon credits. This Article is timely, arriving when America’s recommitment to the Paris Climate Agreement is setting the stage for a new emissions accounting era
The Voluntary Carbon Market: Market Failures and Policy Implications
Full text linkMany companies have made environmental pledges and launched products that claim to be carbon neutral. In most of these instances, corporations rely on carbon offsets. In this Article, we investigate the functioning of the market on which these offsets are created and exchanged, namely the voluntary carbon market, and look into the question of whether and, if so, how it should be subject to regulation. We start by shedding light on the mechanics of this market and then explain why a well-functioning voluntary carbon market is necessary to fight global warming and can also help developing countries build less carbon-intensive economies. However, we also spotlight the conflicts of interest and imperfect information problems that plague the voluntary carbon market and prevent it from achieving its full potential. Further, we explain why the proposals advanced by some members of Congress to regulate this market are misguided. Finally, we offer a proposal that can contribute to improving the functioning of the voluntary carbon market, thus increasing the likelihood that firms will rely on high-quality offsets to reach their climate goals
