Ecology Law Currents

California’s Precarious Path to Climate Change Mitigation

By Penni Takade*

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California’s ambitious cap and trade program for greenhouse gases (GHG) began operations in 2013. The program is one of the centerpieces of the state’s climate mitigation plans. As with any major initiative, there are obstacles and weaknesses that can defeat or diminish the fulfillment of the state’s plans. California recently survived a legal challenge brought by environmental justice advocates, which alleged that the cap and trade program could be inadequate and have a disparate impact on more vulnerable communities.[1] Although California was successful in this suit, there are legitimate weaknesses in the cap and trade program, which exacerbate socio-economic inequalities and risk diminished effectiveness.

 

 

 

 

 

 

 

 

 

Overtopping Embarcadero, San Francisco, during king tide. Courtesy California Coastal Commission, Photo © Mike Filippoff

This note discusses two key weaknesses that could undermine the achievement of the state’s ambitious GHG emissions reduction goals. The first weakness is the process of allocation for GHG allowances to regulated firms. Under California’s allocation process, cap and trade will exacerbate economic inequities and raise the total cost of the program. A new lawsuit threatens to increase those inequities and costs to the state, if successful.

The second weakness is counterintuitive: cap and trade programs do not induce technological innovation, yet California requires significant technological innovation to achieve emissions reductions goals. Section III.C. discusses the market failures in cap and trade, which preclude serious inducement of technological innovation. That section goes on to specify what California must do to correct these failures in pursuit of that innovation. When used in combination with the cap and trade program, these strategies will increase the effectiveness of California’s overall climate change mitigation plans.

The Obsolescence of Environmental Common Law

by R. Trent Taylor*

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Obsolescence, the process of becoming obsolete, is a staple of our lives in the twenty-first century. As new and better technologies develop at a faster and faster pace, our existing technologies—smartphones, televisions, computers—become obsolete almost as soon as they are released to the public. Entire technologies, like the fax machine, emerge rapidly and then disappear just as quickly with the advent of a faster and easier alternative. With respect to technology, we have come to expect, even welcome, obsolescence, as it carries with it better alternatives.

Photo credit to umjanedoan.

The law, however, is another matter. By its very design, it is meant to change slowly. Justice Benjamin N. Cardozo once said, “the encroachments [to the established common law] are so gradual that their significance is at first obscured.”[1] As a result, obsolescence is rare in the law. Once the law incorporates a particular doctrine, it is slow to discard it. Indeed, legal treatises of tort law published recently and those published hundreds of years ago show many similarities.

Surprisingly, one of the oldest and most utilized areas of our legal system, environmental common law, is currently on the verge of obsolescence. Environmental common law dates back to the seventeenth century.[2] It survived the passage of seemingly comprehensive environmental statutes four decades ago.[3] Now, however, a series of court decisions from the past three years hold that environmental common law actions, regardless of whether they are seeking injunctive relief or monetary damages, are preempted and displaced by federal statutes and regulations.