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EELP UPDATES - November 19, 2020


Looking Ahead

Priorities for a Biden Administration: Day One Steps, Paris Agreement, Environmental Justice, and EPA and DOI Actions

In anticipation of the 2020 presidential election, we spent time this summer and fall examining climate, energy, and environmental priorities from the Biden campaign, surveying proposals made by outside experts, and reviewing our own work tracking the Trump administration’s regulatory changes. We've organized potential executive branch policy actions into several useful lists:

We've also created a new page on our site to illuminate the Trump administration’s legacy and analyze the incoming Biden administration initiatives. Check back regularly as we'll update both pages with new, forward-looking analyses.

Legal Analysis

A Clean Energy Agenda Runs Through the Federal Energy Regulatory Commission

By Ari Peskoe
The Federal Energy Regulatory Commission’s (FERC) sweeping authority over the power sector’s interstate operations and planning drives investment and shapes the industry. In this paper, I review how FERC is already influencing the clean energy transition and explain how FERC will be an indispensable player in the Biden Administration’s clean energy agenda. I consider two 2021‒2025 scenarios: 1) Congress passes a clean energy standard; and 2) Congress does not enact major changes to energy regulatory authority.


CleanLaw Podcast

Erin Brockovich and Caitlin McCoy on Water Pollution Regulations and Effective Advocacy

In our 50th episode Erin Brockovich speaks with Caitlin McCoy about major water issues in the US today, advocating for public health and the environment, the need for regulatory reform, and her latest book, Superman's Not Coming. Throughout this inspiring interview, Erin shares the message that we all have the power to demand a cleaner environment and smarter approaches to regulation.

Cynthia Giles and Joe Goffman on Next Generation Compliance

In this episode, Joe Goffman speaks again with Cynthia Giles, our guest fellow and former Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance. They discuss her ongoing work examining how well environmental rules do in ensuring compliance with pollution and waste reduction requirements, where they fail, and how to make sure they succeed. Cynthia’s third installment of her series on Next Generation Compliance is now up on our website. You can find a full transcript of this episode here.


Private Sector Project

Tracking the Continuing Evolution of Climate-Related Disclosures by Public Companies

by Hana Vizcarra
In two new articles, I take a closer look at recent developments in the push for more robust disclosures of climate-related risks from public companies. In the law and policy publication The Environmental Law Forum, I talk about the diverging paths federal regulators are taking on climate risk in the corporate world and financial system, the slow transformation of climate-related information into financially material information, and how recent cases involving relevant questions can inform our understanding of how this process may develop. In The Oil, Gas, and Energy Law (OGEL) Journal, I discuss in more detail the state of federal regulation of climate-related disclosure and financial risks. I outline how financial sector pressures are contributing to the push for more robust disclosures and consider the potential trajectory of the divergent approaches of federal regulatory bodies in light of electoral changes.


EPA Mission Tracker

EPA Undermines its Own Environmental Justice Programs

by Hannah Perls
There is no federal law governing environmental justice (EJ). This means that agencies, including EPA, have no authority to mandate actions or remedies addressing EJ concerns independent of their authorities under other statutes. An Executive Order in 1994 requires all agencies to “make achieving environmental justice part of [their] mission.” However, the order is not judicially enforceable. In this new post, I track the history of environmental justice programs at EPA and examine how the agency's efforts fall short of addressing systemic burdens on EJ communities.


Legal Analysis - Student Work

President-Elect Biden Supports a “Carbon Enforcement Mechanism” – Could that Mean a Price on Carbon?

by Martin Levy, JD 2020
As part of his climate agenda, President-elect Joe Biden promises to pass legislation that “establishes an enforcement mechanism” to curb harmful greenhouse gas emissions. What this means is far from clear. Biden expressed support for a price on carbon emissions during the primary, but his team has recently indicated he prefers a legislative approach centered on economic stimulus, clean energy investments, and sector-specific decarbonizations standards. Meanwhile, clean energy advocates are also pushing sector-specific decarbonization standards—such as a national standard for the power sector—instead of economy-wide carbon emissions fees. Read my legal analysis, part of EELP’s “Looking Ahead” effort, which explores these issues.  

Abandoning Structures to Rising Sea Levels, What Are the Legal Issues and Solutions?

by Jake Hummer, JD 2022
Shifting property lines and flooded structures are not new problems, but with climate change increasing their occurrence, we need new legal tools and better policy to address them. Land loss can happen at varying speeds. Whether property ownership shifts as a result depends on state property law, building permit terms, and coastal development regulations, and with the growing threat to coastal property, states have been forced to adapt. In this article, I lay out the existing statutory and regulatory tools, and persistent challenges in dealing with growing costs of abandoned properties.

Forest Service Proposal Deemphasizes Environmental Concerns to Streamline Oil and Gas Leasing Process

by Lindsay Williams, JD 2022
Recently, the US Forest Service released a proposed rule changing the oil and gas leasing standards and procedures on National Forest System (NFS) lands. The purpose of the rule is to “modernize existing procedures and streamline processes and promote efficiency.” Environmental groups have criticized the rule as potentially opening up the NFS land to increased mineral extraction activities, disrupting ecosystems which are essential for absorbing and storing carbon in the fight against global climate change. In this post, I provide background on the proposed rule, detail its most substantive changes, analyze the likely effects on our forests, and identify potential issues that could lead to litigation.


Staff Appearances

Jody Freeman on Fusion Capitalism Podcast

In a two-part podcast from Forbes Books Radio, host Steve Melink talks with Jody about what the election results might mean for climate change progress. They discuss carbon pricing, market forces, the need for regulation, and what the confirmation of Amy Coney Barrett to the Supreme Court means for climate change.

Hana Vizcarra at the ABA SEER Fall Conference

Hana recently appeared on the “Navigating the Changing Climate of Corporate Reporting” panel as part of the American Bar Association Virtual SEER 2020 Fall Conference. The panel addressed the coverage and limitations of US and international guidelines regarding climate-related disclosures and reporting, discussed coordination with the voluntary social responsibility and sustainability reporting, and assessed challenges moving forward.

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