Climate Deregulation Under Trump 2: Will It Have Any Durable Impact?
John D. Graham
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Following through on his 2024 campaign pledges, President Donald Trump is dismantling President Biden’s aggressive climate policies, including federal regulatory controls on the major sectors of the economy that account for most greenhouse gas emissions in the US. Although it is too early to make a definitive assessment of what Trump will accomplish, I present evidence that Trump is taking a more creative, radical, and legally sophisticated approach to climate deregulation in his second administration than was attempted in his first administration. I evaluate how durable climate deregulation may be. A major weakness in Trump’s agenda is the lack of adequate attention to scientific and benefit-cost considerations, as federal climate regulations have significant benefits as well as costs. I conclude by addressing the hard lessons that proponents of aggressive climate policy should take from the second Trump administration and what steps should be taken in the future to make meaningful, durable progress on federal climate policy.
Privately Negotiated Withdrawals: How Shareholders
Can Shape a Company’s Carbon Emissions Reduction
Gabriella M. Chioffi
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Governed by the U.S. Securities and Exchange Commission’s Rule 14a-8, shareholder proposals are a fundamental and longstanding mechanism that investors use to express their opinions and preferences on how a corporation is operating. Over the last decade, there has been a marked shift in the subject matter of the proposals that shareholders are submitting, as concerns relating to the environment have become an increasingly key issue. However, shareholder support for these climate-related proposals reached its highest point in 2021 and has declined slightly in subsequent years. The conditions that made shareholder proposals a successful tool in 2021 have since changed, due in part to new guidance from the U.S. Securities and Exchange Commission (“SEC”) on the application of Rule 14a-8 and fluctuating support from the most influential asset managers. In response to the limited success climate-related shareholder proposals have experienced, this Note explores the viability of an alternative approach to shareholder proposals: privately negotiated withdrawals. This mechanism operates by having a shareholder withdraw his proposal after reaching a privately negotiated agreement with the board to implement climate commitments. This Note ultimately argues that this currently underutilized tool of privately negotiated withdrawals will enable shareholders to convince boards to reduce their company’s total carbon emissions by 2050.
The Civil Liability Gap for Oil Spills Caused by Non-State Armed Groups: The Case of the MV Sounion Tanker in the Red Sea
Emery Hansell
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On August 21, 2024, the Greek-flagged oil tanker MV SOUNION (“Sounion”) was attacked by Houthis as it passed through the Red Sea. The Houthis, a rebel group that controls large swaths of Yemen, then set the ship ablaze, threatening to spill roughly 1 million barrels of crude oil into the water. The cleanup was anticipated to cost $20 billion. The question thus arises: who would—and who should—pay for that cleanup? At the moment, there is no effective solution.
As an initial matter, current international law focuses on State liability and is therefore unlikely to require the Houthis—as a non-State actor—to pay. Furthermore, even if the Houthis were deemed liable under existing treaties and customary international law, the Houthis, who regularly and flagrantly disregard international law by attacking civilian vessels, are unlikely to pay even in the event of a judgment against them. With the ability of the international community to hold the Houthis responsible under existing law in question, and the minute likelihood of successfully extracting a payment from the Houthis even in the event of a judgment against the group, the cost of an oil spill will likely be borne by private parties.
Second, under the current maritime civil liability regime, the burden may fall to shipowners and their insurers, but that regime currently is also inadequate. The 1992 Civil Liability Convention requires shipowners to purchase standard liability insurance, which does not cover damage resulting from war or terrorism. Shipowners may also purchase specialized war risk insurance, but that policy is not required, may have exceptions for terrorism, and often covers only damage to the ship itself. While shipowners can also purchase additional insurance that would cover damage affecting third parties, as would be the case with an oil spill, this policy only offers coverage up to a maximum of $1 billion—a grossly inadequate amount given the gargantuan costs of cleaning up a spill.
Third, the 1971 International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage requires oil companies to contribute to a fund that is available for oil spill cleanups around the world. However, the Fund has an exception for armed attacks and is therefore unavailable to address oil spills caused by belligerent activity. Ultimately, under the current system, international and regional groups likely will have to shoulder the bulk of the costs associated with cleaning up an oil spill in the Red Sea.
This Article examines the civil liability regime governing responsibility for environmental disasters in the Red Sea intentionally caused by non-State actors and proposes changes to create a system more capable of addressing the threat posed by such actors. This Article recommends rerouting oil tankers away from the Red Sea; advises in favor of imposing a requirement on oil tankers to obtain war risk protection and indemnity insurance (which covers damage to third parties); advocates for the creation of an international, regional, or joint task force prepared to address oil spills; and suggests utilizing security forces such as Aspides to provide protection for tankers traveling through the Red Sea.
Phasing Out a Way of Life: How Decarbonization Affects
Coal Dependent Communities
Alex Loeb
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As member states seek to comply with European Union industry rationalization directives that will force mines that cannot compete with free-market prices without subsidies to close, domestic governments across Europe will face competing pressure from civil society. Many traditional European mining communities are dependent on the coal industry and will resist the phase out of its position in the European energy mix. In Asturias, Spain, the phase out of non-competitive coal mines has had devastating impacts on former mining towns, as they struggle to transition to a coal-free economy. After phasing out coal, Asturias has struggled with unemployment and significant depopulation.
Many blame the politically powerful Spanish unions, contending that they use their influence in the policy process to effectuate short-term gains for the former mine workers at the expense of transitioning the regional economy. However, an analysis of their role in the policy creation process and the rationale behind the resulting framework reveals that the unions are likely not the cause of the faltering economic transition. Instead, it is proposed, transition policy depends on the local population developing a reconstructed collective identity. So long as the community continues to see itself as a mining community, it will be difficult to maintain necessary participation and confidence in the transition for policy to succeed.
