Environmental Law Review
Welcome to Environmental Law, the nation’s oldest law review dedicated solely to environmental issues. Environmental Law is a premier legal forum for environmental and natural resources scholarship.
Environmental Law is published quarterly by the students of Lewis & Clark Law School in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.
Additional content is available on our online journal, Environmental Amicus, which features online ideas from Environmental Law contributors and more.
Current Issue: Vol. 53 No. 1
Climate Law Education and Its Place in Canadian Law Schools
Canadian law schools have approached climate law through diverse legal curricula. The increased diversity of their course contents and pedagogies showcases not only the range of knowledge, skillset, and attentiveness fostered in classrooms but also the experimental and inconsistent character of climate law teaching. This Article explores what constitutes and should constitute a climate law “education” in Canada by situating the curricular development in the changing climate and legal context. Climate law has made progress and been challenged as an identifiable corpus of climate legislation and lawsuits, a coherent normative system, and a specialized professional community. This distinctiveness, with an emerging status, may explain the varied enthusiasm across schools for teaching climate law. Besides keeping up with the field, Canadian law schools should amplify the curricular significance of climate law in support of its improvement, maturation, and transformation. Having a climate law course is a manageable and beneficial arrangement. It avoids teaching the subject in passing and becomes a focal point for pursuing interdisciplinarity and more ambitious curricular experiments, including responding to the potential “climatization” of legal education. This is informed by climate law’s content, progress, and relationships with other legal fields and disciplines. Interests and decisions of different stakeholders in legal education further influence climate law’s place as a curricular subject.
From “Sit and Wait” to “Proactive Regulation”: A Model for Environmental Regulation of Private Property
Let me start from the end: recent years indicate that the world is moving in the right direction by increasing environmental awareness and attempting to deal with immediate and long-term environmental threats on an ongoing basis. But the path to achieving these results—like any transition from one point to another—involves significant costs for some and severe consequences for others. Responsible governments, operating in accordance with the Precautionary Principle, will not sit and wait for the threat to materialize, but will act—whether through regulation or various market incentives—to thwart it. Despite the urgency of tackling environmental challenges, current property laws do not provide governments with instruments to estimate the costs and distributive consequences of their actions in advance. Therefore, current property laws adversely affect the willingness of governments to address environmental challenges and the public legitimacy of environmental regulation.
This Article proposes an innovative model for governments to address environmental challenges, which includes identifying the unique characteristics of environmental regulations. Environmental regulation is characterized by urgency, absence of scientific certainty, irreversibility, and sometimes cross-border damage. When examined through the main justifications for compensation—efficiency and fairness—these characteristics enable decision-makers to formulate a clear policy in cases where environmental regulation harms private property. Specifically, the balance between these characteristics of environmental regulation allows decision-makers to know in advance the costs of regulation and the distributive implications of its implementation. This information enables governments to select the appropriate governmental power to exercise in response to any threat and the extent of their liability to compensate injured property owners. The ability of decision-makers to know in advance the economic and social costs of environmental regulation increases the effectiveness and fairness of government action. This knowledge strengthens the ability of governments to deal with growing environmental threats.
Now Comes the Hard Part: Environmental Advocacy in the Age of Climate Disruption
It has taken more than a century to create the climate crisis and it will take the rest of this century and beyond to deal with it effectively. There are only three options: mitigate, adapt, or suffer. At this point, some combination of all three is in store. The priority must be rapid decarbonization but done in a way that leaves no one behind—the “just transition,” as it is called. This is not a short-term project. It will be a lifetime of work—a marathon, not a sprint. Systemic changes are needed that will take time. Meanwhile, every ton of carbon and every fraction of a degree matters. This Essay discusses these options and provides some advice to avoid climate fatigue and burnout.
The Value of Regulating Climate Disclosures
Climate change poses great physical, transitional, and legal risks to the capital market. Current U.S. Securities and Exchange Commission (SEC) disclosures do not adequately consider market exposure to such climate risk, especially in the long-term. The SEC’s latest analysis of how climate-related disclosures fit into the agency’s existing disclosure regulations, found in its 2010 Guidance Document, is outdated given developments in regulations, market conditions, and climate science. Moreover, SEC registrants have discretion over reporting climate-related information to the agency, and generally avoid fully disclosing such information.
As capital market participants become increasingly aware of climate risks, however, they are increasingly asking SEC registrants to disclose climate-related information and the SEC to provide greater guidance and specific SEC regulation on climate matters. The SEC’s recent March 2022 Proposed Rule suggests the SEC will soon take action to reduce registrants’ discretion over climate-related disclosures by creating a specific duty for publicly held companies to disclose climate-related matters aligned with broadly accepted climate disclosure frameworks. This will give the SEC power to enforce climate-related disclosures and will provide market participants with more consistent, comparable, and reliable climate-related information to help them make informed investment and business decisions.
This Note argues that the SEC is the appropriate agency to take such action. It suggests that either the SEC already has the implied authority to promulgate such disclosure rules, or Congress may soon give it this authority explicitly. As such, this Note argues that the SEC should both update its 2010 Guidance Document and should adopt a final version of its March 2022 Proposed Rule.
Ultimately, the SEC has a responsibility, or at least the opportunity, to help address the systemic and catastrophic risks of climate change to the capital market. The SEC should act accordingly.