Columbia Journal of Environmental Law

Choosing Words Wisely

Samantha Daisy — 2022-12-29

Climate finance has become a progressively indispensable consideration in the fight against climate change. Global agreements on climate mitigation and adaptation have changed over time to focus increasingly on the need for climate finance. Many commentators have considered whether climate agreements have been successful in allocating the necessary finance to mitigation and adaptation efforts. What changes can be made to the language of climate agreements to promote an efficient flow of funding to climate goals? This Note argues that we can use pre-existing legal frameworks to analyze and assess the progression of climate finance over the years. By analyzing the progression of climate finance provisions in global climate agreements based on legal frameworks grounded in principal-agent theories, governance principles, and contract law, this paper will show how adherence to these pre-existing legal frameworks may have enhanced the success (or lack thereof) in global climate finance.

Regulation of the Voluntary Carbon Offset Market

Nicole Franki — 2022-12-29

Carbon offsets are often emphasized as effective and easily accessible tools in the effort to mitigate the looming threat of climate change. Offsets can be a useful bridge mechanism to allow industries with processes that are emission-heavy to purchase carbon reductions elsewhere as cleaner technologies develop. But the current use of offsets as a primary tool for corporations to meet their emissions reductions goals, or for consumers to reduce their individual carbon footprints, will not be sufficient to meet climate change mitigation goals. This Note will examine two major issues with the voluntary offset system. First, there is no centralized regulatory system for carbon offsets. Second, set within the larger neoliberal framework of market-based climate solutions, carbon offsets do not promote the more aggressive policies that are needed to mitigate the disastrous effects of the climate emergency. Carbon offsets are a mechanism that place responsibility on individuals and the market, when there must be unified state and private action. This article will also explore some of the proposed legal and regulatory strategies to strengthen government regulation of the voluntary offset market.

Rate Base the Charge Space

Adam Orford — 2022-12-29

To fight climate change and support the transition to a zero- emissions transportation sector, the United States is setting out to build a huge fleet of electric vehicle (EV) charging stations. But EV charging infrastructure—often called EV supply equipment (EVSE)—is expensive, and how to pay for it is not straightforward. This Article explores the emerging law and policy of using the bill payments of millions of electric utility customers to solve the problem. State utility regulators, in obscure technical proceedings, have begun directing billions of ratepayer dollars toward EVSE. Is this an unfair and risky social spending experiment, as its opponents argue? Or is it a sensible economic investment that will save ratepayers money, even while responding strategically to shifting market conditions, supporting domestic manufacturing, and achieving environmental goals, as its proponents contend? State regulators, one by one, have been reaching the same conclusion: The environmental, energy, and economic policy considerations are aligned, and the ratepayer funding approach makes sense, provided appropriate ratepayer protections are in place. To shine a light on these developments, this Article presents the findings of a fifty-state (plus D.C. and Puerto Rico) review of regulatory proceedings, revealing the full extent of authorized utility spending, the wide variety of EVSE investment program elements, the broad range of reasoning that regulators have found persuasive, and the protections that regulators have put in place to ensure ratepayer benefit. The Article demonstrates that support for utility EV infrastructure spending is not the sole province of states with progressive climate politics; that new federal funding is augmenting, but not displacing, utility investment; and that public utilities commissions have concluded that utility EV infrastructure investment can provide benefits that may not be provided by the private or public sectors.

A Bottom-Up Dilemma

Ying Zhu — 2022-12-29

Global environmental governance reflects a bottom-up trend of polycentric, adaptive, and participatory decision-making processes. The legal regime for international investment, by contrast, has a top- down structure that requires consistent, stable, and predictable governance of foreign investment in host states. This difference in structure results in an emerging “bottom-up” dilemma where states face conflicting obligations regarding the distribution of governing authorities, the frequency of norm evolution, and the inclusiveness of decision-making. This paper analyzes three aspects of the bottom-up dilemma—governing actors, scales of governance, and modes of governance—as reflected in the investment arbitration case law. It then conducts an analysis of investment treaties to assess their effectiveness in solving the dilemma and makes proposals for future treaty reform and arbitration practice. In conclusion, the paper proposes to strike a balance between, on the one hand, the protection of foreign investors’ interests in a dynamic and complex governing process, and, on the other hand, the preservation of host states’ policy space to adopt a polycentric and bottom-up governance structure.