Columbia Journal of Environmental Law

Green Funds in a Gray Area

Corey Shapiro — 2023-06-09

Environmental, Social, and Governance (ESG) funds face tremendous skepticism regarding their impact relative to investor perceptions. In fact, several figures, including media commentators and asset management leaders, have sounded the alarm on ESG investing. They believe investors, especially retail investors, are being misled by funds’ names and largely unhelpful disclosures, and that some fund managers are exaggerating their ESG practices in the name of attracting investors’ money. The Securities and Exchange Commission (SEC) has documented evidence of misleading statements regarding ESG investing processes and has brought enforcement actions against companies for making false claims in their disclosures. In an effort to address the lack of standardization and clarity in the ESG fund industry, the SEC proposed two rules in May 2022 that would change the naming and disclosure requirements for ESG funds.

To examine how ESG funds are naming themselves and disclosing key ESG information, this Note aggregates data collected from the twenty largest ESG mutual funds and exchange-traded funds (ETFs). Based on an analysis of this data—which simulates an investor’s experience attempting to identify which ESG funds best align with their objectives—this Note derives quantitative and qualitative takeaways. The main conclusion is that ESG fund names are often vague and misleading, and neither their names nor their accompanying disclosures describe the funds’ investment strategies in a manner retail investors can meaningfully understand and use to make fully informed investment decisions. This Note calls this phenomenon the “ESG fund labeling problem.”

In addition to analyzing the ESG fund labeling problem and its impact on retail investors, this Note considers whether the SEC’s two proposed rules from May 2022 will be successful in abating the ESG fund labeling problem. Ultimately, this Note concludes that the proposed rules fall short of meeting investors’ needs in key areas and proposes modifications the SEC can employ to further resolve the ESG fund labeling problem and reduce investor confusion.

Wood Pellet Production in the U.S. South and Exportation for ‘Renewable’ Energy in Europe

Emma Shumway — 2023-06-09

In recent years, European demand for wood pellets has surged due to a misconception of carbon neutrality. The current legal frameworks posit that simply replacing a harvested tree renders the burning of wood pellets for energy use renewable energy. This oversimplification does not consider a number of factors, including the difference in carbon sequestration capabilities between original, natural forests and replacement monoculture plantations, the cumulative impact of CO2 emissions in the atmosphere, and the years required for a replacement tree to sequester as much carbon as the harvested tree. The EU and U.K. can currently utilize emissions “reductions” due to burning wood pellets to reach domestic renewable energy goals along with commitments under the Paris Agreement. The corresponding increase in demand for wood pellets in Europe has resulted in a hotspot of wood pellet production in the U.S. South with several significant consequences. This Note presents the environmental justice and climate change impacts of the growing wood pellet industry in historically marginalized communities in the U.S. South, with a close look at the Enviva wood pellet plant in Hamlet, North Carolina. It provides an overview of the inadequacies of U.S., EU, U.K., and international environmental law in protecting both the global climate and local communities from the impacts of wood pellet production and combustion. This Note then builds on calls to change IPCC and EU carbon accounting rules for wood harvested for energy use to propose a solution to the environmental justice side of the wood pellet dilemma in international environmental law: namely, adding environmental justice safeguards to the UNFCCC Paris Agreement.

Ecoworship and Federal Environmental Law

Tracy Hester — 2023-06-09

As the growing land stewardship movement has joined with rising evangelical environmentalism, religious worship has intersected with ecological protection to spark the rise of a new variety of ecoworship. Given the U.S. Supreme Court’s recent willingness to expand constitu- tional protections for religious exercise and trim bulwarks against Establishment Clause challenges, religious claimants now have bolstered powers to assert exemptions from governmental mandates based on their free exercise of faith. The growing role of faith-based environmentalism and institutional religions in private environmental protection will likely lead to similar claims for religious exemptions for pro-environmental activism based on faith. Most legal scholarship so far has squarely focused on the general foundational question of how federal and state constitutional laws apply to protect religiously motivated actions both within and outside environmental law.

This Article takes a different tack. Federal environmental law is over- whelmingly statutory, and state environmental laws rely on a similar base. It is time to re-read these statutes through the newly expanded constitutional lens. This path yields two notable results. First, the increased accommodation for Free Exercise claims and revamped Establishment Clause parameters will inevitably shape the way that courts will interpret environmental statutes that impinge on religious activities. This interpretive tendency has a deep historical provenance in federal and state courts, although it is difficult to extract from the outsized historical shadow of Holy Trinity Church v. United States. Second, an altered interpretation of federal statutory terms through the new religious exercise lens could grant special status to proactive environmental initiatives impelled by religious beliefs, as essentially protected environmental worship. This reinterpreted statutory language could expand standing for certain claimants raising federal statutory claims, force the federal government to reassess the way it selects clean-up remedies or environmental permit limits in certain contexts, redefine the scope of environmental justice policies, and alter the degree of regulatory limitations on environmentally protective uses of land by religious actors.

Impact Fees in New York City? Legal Authority, Constraints, and Potential Options

Adalene Minelli — 2023-06-09

New York City, like many other cities, faces numerous practical, political, and legal challenges in raising the revenue it needs to support its growing population. Against this backdrop are ongoing concerns about how the City will finance the additional public services and infrastructure necessitated by new development, as well as the costs it incurs in mitigating adverse impacts on existing communities and the environment. In this context, some have called for the City to explore whether to adopt a local impact fee program.

Broadly defined, impact fees are one-time charges imposed on new development as a condition of approval to offset its impact on local infrastructure, services, and the environment. Employed widely in other major U.S. cities, New York City is a notable outlier in that it does not have an official impact fee policy. However, unlike many other cities, New York State law is unclear as to whether local governments have the requisite authority to adopt one.

This Article analyzes the question of whether New York City has the legal authority to impose impact fees on new development. It argues that, should the City wish to adopt impact fees, it could do so through either its constitutional home rule authority or through its mitigation authority under state environmental review laws. This Article also identifies a number of constitutional and statutory constraints that would likely restrict the design and scope of a local fee program, including limitations under the state’s doctrines on preemption and local taxation, and under the federal exactions jurisprudence.