Michael Burger

Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21

There have been several proposals to include a “climate change displacement coordination facility” in the upcoming UNFCCC agreement, but there has been very little public discussion about what this facility would entail and how it would operate. This briefing note highlights some of the functions that the displacement coordination facility could fulfill, as well as some key questions for negotiators in the lead-up to COP 21 and subsequent talks. The note is not intended to be a proposal for how the facility should operate, nor do the functions highlighted below necessarily reflect what is politically or economically feasible. Rather, the note is intended to outline a broad array of considerations for decision-makers as they contemplate whether and how to proceed with the displacement coordination facility.

Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project, and the agency’s ability to justify approving the project in light of that balance.This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of upstream and downstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for upstream and downstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, shield agencies from litigation, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.

The (Re)Federalization of Fracking Regulation

Controversies surrounding the practice of hydraulic fracturing, or “fracking,” have engaged the nation in a heated and broad ranging conversation about energy development and environmental protection in America. The debate over who should regulate fracking — the federal government or the States — has been front and center. This Article argues that a theoretical federalism analysis favors shared federal-state regulation of potential impacts on underground drinking water supplies and of hazardous waste management, and federal regulation of information disclosure, under the existing regimes created by our environmental laws. The Article makes at least four contributions to the literature on environmental federalism, in general, and on federalism and fracking, in particular. First, it sets forth a detailed theoretical argument in favor of federal regulation of fracking, and refutes theoretical arguments in favor of State regulation. Second, it provides a unique and extensive examination of the language, structure, and purposes of the Safe Drinking Water Act, along with its legislative history; this act of statutory interpretation provides much needed substance to what is too often an essentially political argument about who should regulate fracking’s potential to contaminate drinking water supplies. Third, it analyzes current state and federal regulation and prospective next steps through a federalism lens. Finally, the Article examines the issue of the appropriate scale of governance in light of the political science literature on policy diffusion. Ultimately, while the idea of the States serving as “laboratories for democracy” is an important one, it is not living up to its potential here, and federal intervention is the only way to achieve appropriate regulation of fracking’s environmental impacts.

Holding fossil fuel companies accountable for their contribution to climate change: Where does the law stand?

ABSTRACT The judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain.

Environmental Law/Environmental Literature

What, is truly “environmental” about environmental law? This Article is the first attempt to answer this question by integrating Law & Literature scholarship with the study of environmental law. I argue that competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a kind of expressive, literary event. To illustrate this process, the Article examines two important and highly visible case studies: the reintroduction of gray wolves into the Northern Rocky Mountains and the public nuisance climate change lawsuit that culminated in the Supreme Court’s decision in Connecticut v. American Electric Power. A close reading of the pleadings, legal briefs and judicial opinions in these case studies demonstrates that courts respond to and reinforce traditional environmental stories, such as wilderness tales and the environmental apocalyptic, but evince a strong preference for a less well-known story, which I call the Progressive Management Machine. The Progressive Management Machine promises reconciliation of competing environmental narratives through administrative process and science-driven decision making, but, in so doing, masks its own contravention of those same narratives. The approach developed here launches a larger project exploring the dynamic relationship between environmental law, literature and narrative. This Article, like the larger project, seeks to elucidate not only various litigators’ and judges’ rhetorical strategies but also the purposes, content and significance of environmental law.

Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization

Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States. This Essay, one in a series of pieces adopting a Law & Literature approach to environmental law, identifies emerging storylines that have begun to predominate in environmental law discourse and that will prove influential in the coming years. The Essay elaborates on 1) how new perceptions of scale are re-defining human beings’ attachments to a sense of “place” or “dwelling,” and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes; 2) how America’s long history of nationalizing nature manifests in the discourse surrounding energy security, energy independence, and the “green economy,” a discourse which has quickly come into conflict with existing place-based preservationist storylines; and 3) how climate change impacts and the demand for adaptation can produce a reimagining of nature and culture as a kind of cyborg. The Essay concludes by noting commonalities and distinctions between new and old environmental stories, and reflecting on how more radical transformations may lay ahead.