This Month's Issue of ELR

Volume 52 Issue 8 —

Comment(s)
by Bina R. Reddy

In Environmental Citizen Suits and the Inequities of Races to the Top, David E. Adelman and Jori Reilly-Diakun provide a cogent empirical analysis of citizen suits aimed at assessing whether these statutory causes of action are meeting the intent of the U.S. Congress to serve as a layer of protection against lax federal or state enforcement of environmental laws. The authors contend that the data does not bear out the concern that citizen suits allow private actors to augment government enforcement schemes and priorities in a manner that lacks accountability, including to local community members that are most directly affected by how environmental laws are enforced, and “crunched” the available data, i.e., categorized, sorted, and made certain assumptions about the data—as is necessary in any empirical study—to arrive at these conclusions. This Comment offers practitioner observations on how citizen suits may resist some of this sorting and categorization, and what the data says or doesn’t say about accountability to affected regulated and local communities.

by LaTricea Adams

Turning Participation Into Power: A Water Justice Case Study presents a rich, conceptual framework with the Constituent Empowerment Model (CE Model) that mirrors the foundational work of Dr. Robert Bullard’s Environmental Justice Framework in its very community-centered perspective. The article also integrates the Jemez Principles as a practical approach to community oversight and accountability. Using Baltimore as a case study added much value to the topic, as the state of Maryland is known for more progressive legislation regarding environment; however, Prof. Jaime Lee spares no criticism of the need for more constituent-centered and community-led accountability and oversight of the implementation and ongoing life cycle of policy in practice.

by Chandra T. Taylor-Sawyer

This Comment is based on an edited transcription of Chandra Taylor-Sawyer’s remarks at the Environmental Law and Policy Annual Review conference. See 2021-2022 Environmental Law and Policy Annual Review Conference, available at https://www.eli.org/ environmental-law-policy-annual-review/2021-2022-ELPAR-conference.

by Margaret E. Peloso and Chloe E. Schmergel

In Caremark and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective Caremark EESG Strategy, Leo Strine and co-authors frame a board’s duty of oversight for environmental, social, and governance (ESG) issues in light of the common-law duties articulated under Caremark. The landmark Caremark decision articulated that corporations and their directors have a duty to implement and monitor compliance programs to ensure that the company honors its legal obligations. However, a number of recent proposed rules from the U.S. Securities and Exchange Commission (SEC) signal that ESG in the United States has reached an inflection point—moving from discretionary actions to regulatory ones. This Comment uses the SEC’s recent proposal, The Enhancement and Standardization of Climate Related Disclosures for Investors, to examine how the shift to regulatory ESG may impact the board’s oversight of ESG issues, potentially rendering Strine et al.’s Caremark framework obsolete.

by Todd Phillips

Leo Strine, Kirby Smith, and Reilly Steel make an important contribution to the corporate governance literature. In their article, Caremark and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective Caremark and EESG Strategy, they make the compelling case that Caremark’s obligation that directors “be reasonably informed concerning” the activities of their corporations—and be subject to legal liability if they are not—provides a foundation upon which directors can and should inform themselves as to whether their companies are acting in ESG-forward or otherwise ethical manners. While Strine, Smith, and Steel include discussions of Caremark liability and associated legal gloss, the practical “takeaway” from their article is that directors must be engaged with their companies’ ESG (or, as the authors write, EESG) efforts, addressing those matters that pose moral risk to their firms as well as those that only pose legal ones. And importantly, director engagement on ESG should not just be something that corporate boards implement, but that shareholders should be demanding.

by Tom Hassenboehler

This Comment is based on Tom Hassenboehler’s remarks at the 2021-2022 Environmental Law and Policy Annual Review conference, available at https://www.eli.org/ environmental-law-policy-annual-review/2021-2022-ELPAR-conference.

by Rebecca Tepper and Kelly Caiazzo

In Rethinking Grid Governance for the Climate Change Era, Prof. Shelley Welton makes a compelling case for why “U.S. grid governance must be redesigned to accommodate a new era of regulatory priorities that include responding to climate change.” As the operators of regional electricity markets and managers of the transmission grid, Regional Transmission Organizations (RTOs) “must play a pivotal role” in achieving clean electricity goals. However, as Professor Welton details, RTO governance structures are in many ways designed to resist the types of changes necessary to enable a transition to a clean electric grid. Professor Welton offers four pathways to better grid governance, including increasing public oversight and control by enhancing state and federal oversight capabilities. This Comment focuses on the role of states, and, in particular, the role that state consumer advocates can play in increasing RTO accountability, promoting cost-effective market and grid improvements, and advancing clean energy goals.

by Victor B. Flatt

This abstract is adapted from Victor B. Flatt, Holding Polluters Accountable in Times of Climate and COVID Risk: The Problems With “Emergency” Enforcement Waivers, 12 San Diego J. Climate & Energy L. 1 (2021), and used with permission.

by Monte Mills and Martin Nie

This abstract is adapted from Monte Mills & Martin Nie, Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands, 44 Pub. Land & Resources L. Rev. 49 (2021), and used with permission.

by Casey Roberts

In Rethinking Grid Governance for the Climate Change Era, Shelley Welton has incisively described the underexplored institutional role of regional transmission organizations (RTOs) in facilitating decarbonization. As an attorney who advocates within the RTO stakeholder process, and before the Federal Energy Regulatory Commission (FERC) and the federal courts, I see firsthand how the RTO processes for identifying and addressing emerging issues can succeed or be derailed, and the limitations in FERC’s ability to proactively set these processes and their outcomes straight. I agree with Welton that RTOs cannot be trusted to self-govern and that many factors militate against treating them with a lighter hand than a run-of-the-mill utility. But I am more sanguine than Prof. Shelley Welton that FERC has sufficient ability to shape RTO processes and outcomes in a manner that protects consumers and advances decarbonization.

by Linda K. Breggin, Bruce Johnson, Jaehee Kim, and Michael P. Vandenbergh

This Comment provides an empirical snapshot of the environmental legal literature for the 2020-2021 academic year, as well as  information on the top articles chosen for re-publication by the Environmental Law and Policy Annual Review (ELPAR), which is published by the Environmental Law Reporter in partnership with Vanderbilt University Law School.

by Howard Learner

This Comment is based on an edited transcription of Howard Learner's remarks at the Environmental Law and Policy Annual Review conference. See 2021-2022 Environmental Law and Policy Annual Review Conference, available at https://www.eli.org/ environmental-law-policy-annual-review/2021-2022-ELPAR-conference.

Articles
by Jaime Alison Lee

This Article offers a revamped model of participatory governance—the Constituent Empowerment Model (CE Model)—which affirmatively shifts power to the voices of marginalized constituents so that they can influence governmental policy. To illustrate how a CE system might be constructed, the Article examines a model recently adopted in the city of Baltimore, Maryland, that is designed to shift the balance of power between the water utility and its customers. Baltimore offers a blueprint for how this new form of participatory governance could make local institutions more responsive to the needs of disempowered constituents.

by Shelley Welton

One central but under-scrutinized way that fossil fuel companies impede the clean energy transition is by essentially running the United States’ electricity grid, writing its rules to favor their own private interests. In most of the country, the electricity grid is managed by Regional Transmission Organizations (RTOs). RTOs are private membership clubs in which incumbent industry members make the rules for electricity markets and the electricity grid through private mini-democracies—with voting privileges reserved for RTO members—under broad regulatory authority. RTOs are able to adopt positions against new clean energy technologies because their hybrid, quasi-governmental institutional structures allow incumbent industry members to dominate stakeholder processes. This Article contends that United States grid governance must be redesigned to accommodate a new era of regulatory priorities that include responding to climate change.

by Leo E. Strine, Jr., Kirby M. Smith, and Reilly S. Steel

This Article, adapted from Leo E. Strine Jr., Kirby M. Smith, and Reilly S. Steel, Caremark and ESG, Perfect Together: A Practical Approach to Implementing an Integrated, Efficient, and Effective Caremark and EESG, 106 Iowa L. Rev. 18853 (2021), and used with permission, proposes a way of thinking about "EESG" that promotes ethical, fair, and sustainable behavior without heaping additional work on already-stretched employees and directors.

by David Adelman and Jori Reilly-Diakun

Citizen suits are filed disproportionately in a small number of states with robust environmental programs. This bias magnifies disparities across states both directly, by ensuring that standards and procedures are followed in favored states, and indirectly, by driving development with significant environmental impacts towards states in which citizen suits are rare and enforcement is less rigorous. This Article takes a broad perspective of citizen suits filed over two presidential administrations, and examines the connections between the structures of statutory regimes and patterns of litigation.

In the Courts

Ninth Circuit remands glyphosate finding to EPA.

In the Agencies

FWS and NMFS rescind 2020 ESA habitat rule.

In the Congress

The Senate passed the American Fisheries Advisory Committee Act.

In the States

Illinois proposed to amend its performance standards for surface mining activities and underground mining operations.