Columbia Journal of Environmental Law

The ESG Paradox Revisited: Integration of Environmental Justice Criteria

Barbara Ballan — Wed, 01 Jul 2026 00:00:00 +0000

In the age of information and climate disruption, businesses must navigate the perils of environmental degradation and deregulation and the unfolding of an informational and technological revolution. Under this context, companies can utilize innovative reporting frameworks to measure, assess, and disclose their environmental and social impacts, particularly on communities that have been historically and disproportionately affected by corporate decision-making.

This Article explores the paradox that lies at the intersection of two trending acronyms: Environmental, Social, and Governance (ESG) reporting, defined as a metric-driven approach to achieve corporate accountability and which can be imposed mandatorily by public law or voluntarily through Private Environmental Governance (PEG); and Environmental Justice (EJ), a social movement that denounces the unfair distribution of environmental impacts on vulnerable communities, and which has evolved into policies and sophisticated metrics and frameworks to assess inequalities in environmental harms caused by private and public decision-making.

Due to the current political attacks on environmental policies, mandatory ESG remains improbable. Thus, this Article analyzes how businesses are voluntarily disclosing environmental and social impacts. There are compelling reasons that justify the integration of EJ risks into sustainability reporting, including material climate-related risks, investor and consumer preferences, and achieving long-term corporate value. Corporate governance, related to corporate design, fiduciary duties, and the role of management, can adapt to integrate EJ considerations, redefining the rules and practices that shape shareholder-management relationships.

This Article argues that EJ risks and opportunities should be material for businesses to disclose. ESG reporting that integrates environmental justice objectives can also promote the long-term viability of a business. In the absence of public regulation, the integration of EJ into voluntary ESG frameworks offers an innovative interim solution for advancing environmental stewardship and responding to the urgent challenges of our time.

FERC: Energy Policy Today and the Story of an Independent Agency

Sam Kalen — Wed, 01 Jul 2026 00:00:00 +0000

This article not only offers the first comprehensive treatment of the Federal Energy Regulatory Commission’s (FERC) history, but it further examines how FERC as an independent regulatory body might fare under a constitutional shift that would allow the President to remove without cause commissioners from an independent commission such as FERC. FERC, after all, is an apt agency for exploring the status and function of independent agencies and what such a constitutional shift might foster. Energy and climate are areas of intense political discourse, and as a policy arena, FERC offers a unique window into whether and how Presidential removal power could shape energy or climate policy moving forward. The article, consequently, offers insights into FERC’s historic role, if any, in establishing energy policy. It then situates FERC within the broader context of conversations surrounding the efficacy of independent agencies, with an eye toward examining whether or how these dialogues could be informed by critical inquiries into the operations of specific independent agencies—in this case, FERC. And when that occurs, at least for FERC, the conclusion might suggest that our assumptions about independent agencies in the modern era require further exploration.

Taking It Personally: When Energy Policy Becomes a Spite Taking

Gina S. Warren, Anneka L. Harralson — Wed, 01 Jul 2026 00:00:00 +0000

In January 2025, the White House issued a presidential memorandum directing federal agencies to immediately suspend all offshore wind development, including projects operating under existing leases and permits, pending a review of “national energy priorities.” The memorandum instructed the Department of the Interior and related agencies to halt regulatory approvals and freeze federal funding. A subsequent executive order expanded the moratorium by revoking renewable energy subsidies and prohibiting the issuance of new offshore wind permits. Acting pursuant to these directives, the Bureau of Ocean Energy Management (“BOEM”) issued Stop Work Orders to multiple offshore wind projects, including Revolution Wind, LLC, halting billions of dollars in ongoing development and effectively stranding investments made in reliance on vested property rights. This Article introduces the concept of Fifth Amendment “spite takings” to expose a doctrinal vulnerability in takings jurisprudence that threatens the stability of large-scale infrastructure investment and warrants closer attention to governmental motive within the public purpose inquiry. When the government exercises its power not to advance a legitimate public purpose, as required by the Fifth Amendment, but instead to target a disfavored owner or industry out of animus or retaliation, the resulting taking becomes what this Article terms a “spite taking.” This Article first provides background on takings doctrine and the nature of property interests in energy development. It then applies the Penn Central factors to BOEM’s Revolution Wind Stop Work Order, framing the agency action as giving rise to inverse condemnation. The shortcomings of a purely regulatory takings analysis motivate the Article’s central argument: that the presidential directives operate as a functional condemnation subject to the Fifth Amendment’s public purpose requirement. This Article therefore recommends a spite takings balancing test to identify when impermissible motive drives presidential action. Drawing on equal protection and administrative law where courts already assess official statements, procedural irregularities, and patterns of disruption to uncover pretext, this Article argues that similar evidentiary tools should inform takings analysis where animus is alleged.

Duty to Serve: Sovereign Immunity in Municipal Water Utility Suits

Sree Yeluri — Wed, 01 Jul 2026 00:00:00 +0000

This Note examines the competing federal, state, and local interests in the regulation of drinking water utilities in rural areas. Focusing on the U.S. Department of Agriculture’s Water and Waste Disposal Loan and Grant Program (7 U.S.C. § 1926) as a case study, this Note explores legal challenges arising from the statute’s anti-curtailment provision. Suits under this provision are typically brought by state-created water utility districts against state public utility commissions and involve novel questions about the scope of municipal immunity and the likelihood of injunctive relief. These suits reveal a link between regulatory fragmentation and affordability. This Note then proposes two structural changes: first, state utility commissions must clarify that utilities’ public interest obligations include affordability; and second, state and federal agencies involved in regulating water utilities must prioritize regionalization to advance both safety and affordability. Strengthening public control over water utilities can help avoid Section 1926 litigation and facilitate increased access to affordable water for rural communities.