Come hell or high water

There’s no escaping that we’re living amid a climate crisis. In the U.S., atmospheric rivers are pummeling the drought-ridden West Coast with rain. Meanwhile, parts of the East Coast haven’t seen a major snow in years but have been hit by multiple hurricanes that would have been considered once-in-a-lifetime. Globally, floods, fires, and record temperatures are common occurrences.

While these conditions seem to test the limits of humanity’s ability to adapt, they also open the door for legal experts to contribute to potential solutions.

“When I think about the development of environmental law, people have to be able to see feel, touch, and smell the problem,” says Danielle Stokes, ’13, assistant professor of law. “In the 1970s, when federal environmental laws came to be, it was because rivers were catching on fire and people were dying. You could see the harm. Today, it’s tangible, and I think that opens up the possibilities for us to engage.”

Stokes, Noah Sachs, and Joel Eisen — all professors at the University of Richmond School of Law — are conducting research intending to shape the future of climate regulations. Here, they talk about how they’re facing the challenges of this unprecedented moment and the possibilities for the future.

Reimagining

For more than a century, monopoly electric utilities have been the driving force behind generating electricity and delivering it to most homes around the country.

For more than two decades, Joel Eisen, a nationally recognized expert on energy law and policy, has been wondering if there’s a better way.

Eisen explains that utility companies are fundamentally different from any other business. Companies are paid for the costs they incur to provide electricity service, plus they receive a government-guaranteed rate of return on any capital investments they make.

“They have every incentive to build big transmission lines and power plants,” Eisen says. “There’s a disconnect between the utilities’ financial incentives and the incentives to bring virtual energy onto the power grid.”

Virtual energy — a term coined by Eisen and his co-authors Felix Mormann of Texas A&M University School of Law and Heather Payne of Seton Hall University School of Law — presents an alternative to traditional utility companies. Rather than rely on large-scale coal and natural gas-fired power plants, virtual energy resources (VERs) stitch together solar and wind power, battery storage, and electric vehicles which currently live at the edges of the grid. For instance, VERs might pull energy from one homeowner’s solar panel and another’s electric vehicle, as well as a larger-scale wind farm, into an aggregated system that can be distributed as needed. The result is a diversified electric grid that is safer, cleaner, and more resilient.

Such a system, however, would be complicated and expensive to assemble. And because it doesn’t require power companies to build anything, they’re unlikely to get that rate of return — meaning there’s little motivation to support the infrastructure needed for robust virtual energy networks.

But Eisen still thinks there’s a way to bring virtual energy to the forefront. In a recent article in Illinois Law Review, Eisen and his co-authors propose a separation of responsibilities through the creation of independent distribution system operators (IDSOs).

“Utilities have extreme conflicts of interest,” Eisen says. “At times they act like gatekeepers and adopt policies that make it more difficult for us to bring our resources together to form the equivalent of a power plant. But when they create their own programs, they have a natural interest in promoting their resources at the expense of those that are developed by their customers.”

In most areas of the U.S., utility companies hold a monopoly over both the creation and distribution of power. With IDSOs, control of distribution, including the wires and poles that transmit electricity to homes and offices, would be handed to an independent nonprofit organization. This third-party operator would have no stake in the electricity generation market, resulting in increased market access, transparency, and reliability and reduced barriers for entry for VERs.

“Someday, I could band together with 10,000 of my neighbors to offer my output from rooftop solar as a resource on the grid, and I might actually get paid for it,” Eisen says. “That creates an economic incentive for the owner of a VER to be part of the revolution. Or, if you have more power from your solar panel than you need, you could, in theory, trade with your neighbor.”

Eisen acknowledges it’s a hard sell. “Right now, incumbent utilities have no interest in making that possible.”

Eisen, Mormann, and Payne say that making that transition will require a “grand bargain” with substantial benefits for utilities that voluntarily hand over control of distribution. In their paper, they envision three key incentives: payments for assets stranded by regulatory changes, compensation for the use of the transmission wires that would remain under utility ownership, and removal of restrictions on entry into certain power generation businesses.

While Eisen believes these incentives could bring utilities to the table, he also believes larger forces are at play and could indicate the time is right for such a major overhaul of the nation’s energy grid.

First, renewable energy sources are far more commonplace and accessible, with homeowners installing solar panels and wind farms. And demand response systems, which pay people to use less energy, have become more sophisticated.

In addition, utility companies are facing climate risks that threaten their operations. It is increasingly in their interests to consider creative solutions to address climate change and reduce greenhouse gas emissions.

“Twelve years ago, [VERs] sounded like the stuff of fantasy,” Eisen says. “It’s much more possible today.”

Questioning

In 1972, the Southern California Law Review published an article by its law professor Christopher Stone that posed a groundbreaking question: Should trees have legal standing?

In the article “Should Trees Have Standing? — Toward Legal Rights for Natural Objects,” Stone argued that natural objects like trees and lakes should have legal personhood and the ability to sue for harm. Based on that theory, these natural entities had the potential to gain standing in cases that environmental organizations could not.

Nearly 30 years later, cultural historian Thomas Berry took this concept a step further when he founded the rights-of-nature movement. Among the movement’s 10 guiding principles, he asserted that “rights originate where existence originates” and that all living things have legal rights, even if they lack feeling or sentience.

The idea has gained substantial traction in recent years and is no longer just a legal theory. More than 50 communities and four tribal nations in the U.S. have enacted rights-of-nature ordinances that protect a natural community’s right to exist and flourish. Globally, Ecuador, Bolivia, India, New Zealand, and Panama have granted legal rights to nature.

“[The rights-of-nature movement] is calling attention to the intrinsic value of living things,” says Noah Sachs, director of Richmond Law’s Robert R. Merhige Jr. Center for Environmental Studies. “As an environmentalist, I believe that nature has intrinsic value — and not just in the situations where it is useful to us. Our laws and legislation should recognize that. We should go much further, in terms of ecological protections, than relying on nature reserves, national parks, and wilderness areas to preserve nature for now and for the future.

“But as I read more and more about the rights-of-nature movement, I became a critic.”

Sachs argues that the movement — and related legislation — is often vague. For instance, while legislation may grant rights to a plot of land, a lake, or a forest, it’s often not clear how those rights might limit human behavior.

“Does that mean humans can’t fish in the lake?” Sachs says. “Can we build near the lake? Can we build a quarter mile from the lake if it will result in sediment runoff? My argument is there are so many details that need to be worked out, and that’s better done through detailed legislation rather than a simple law that says the lake has legal rights.”

Sachs is also concerned that the ambiguity grants an outsized authority to judges — who may lack expertise in environmental science and policy — to interpret the laws and strike a balance between the new rights of nature and the existing rights of humans.

“That is handing tremendous, unaccountable power to judges,” he says. “It would judicialize most of environmental protection instead of having Congress and regulators in the driver’s seat.”

That dichotomy is currently playing out in the courts. Of the 50-plus localities with rights-of-nature laws, six have been challenged, usually by industry. The localities have lost all six cases because the ordinances are too vague, violate due process, or violate state and federal law.

Sachs, who has been approached by rights-of-nature organizations to advise them, says he would encourage groups to spell out exactly what they want to protect and what duties those new rights will impose on humans.

On climate change, Sachs argues that lawsuits between an injured natural entity and a corporate or human defendant would do little to address the problem. Instead, he believes the movement should focus on more tangible initiatives like incentives for energy efficiency, reducing the barriers to building renewable energy, strengthening 
regulatory limits on pollution, improving land use policies, and raising fuel economy standards for cars.

Sachs says he understands why people are frustrated with slow progress and want to start from scratch with a new framework. But Sachs believes the Clean Air Act of 1970 and the Clean Water Act of 1972 have been “remarkably effective” for environmental protection. He says that the states and the federal government can enact new legislation to address the current climate crisis.

“I’m not willing to jettison those older statutes in favor of this new rights-based approach,” he says.

In fact, Sachs was involved in a project to study the effects of sea level rise on chemical storage and industrial sites along the James River. Working with the Center for Progressive Reform, Sachs and his colleagues used mapping software and census data to pinpoint vulnerable sites.

In their report, “Toxic Floodwaters: The Threat of Climate-Driven Chemical Disaster in Virginia’s James River Watershed,” they identified 1,095 industrial facilities that are flood-exposed due to storm surge, heavy rainfall, or sea level rise. Of those, 91 would be flooded by just 1 foot of sea level rise, which climate scientists expect to occur by 2050.

“We’re among the first in the country to do that kind of detailed mapping of industrial sites versus sea level rise,” he says.

Since then, Sachs has been working with legislators to pass a bill that would protect these chemical storage areas. He also published an article in the Columbia Journal of Environmental Law outlining what state and federal governments could do to protect industrial sites from severe storms and sea level rise.

“Virginia is behind the curve on this,” Sachs says. “The Clean Water Act is the main law we use to protect the James River and the Chesapeake Bay, but it’s mainly about intentional discharges into Virginia waterways. I’m looking at accidental discharges, which are not currently regulated. We have over 1,000 storage tanks storing hazardous chemicals right next to our waterways. I’m trying to head off this potential future threat.”

Equalizing

It’s well-established that fossil fuels are the primary driver of climate change, accounting for more than 75 percent of global greenhouse gas emissions and nearly 90 percent of all carbon dioxide emissions. As these greenhouse gases are released into the air, they trap the sun’s heat and contribute to global warming.

But fossil fuels and the traditional power plants that burn them also have a dramatic effect on those living in neighboring communities, many of which are low-income. As the world makes the transition to renewable energy, however, we have an opportunity to ensure a more just distribution of the impacts — and the benefits — of new infrastructure.

Danielle Stokes, who focuses on sustainability and equity in land use planning, is part of an interdisciplinary team of geographers, legal scholars, and public policy experts exploring how to do just that. The team of researchers received a three-year grant of nearly $500,000 from the Alfred P. Sloan Foundation to support their work on the project, titled Just Energy Transitions and Place.

Land use is a critical element of the energy transition process. The Princeton Review’s “Net-Zero America” report suggests that the U.S. will need to allocate approximately 228,000 square miles — an area larger than Wyoming and Colorado combined — for solar and wind farms and other renewable energy infrastructure in order to achieve net-zero emissions by 2050.

Achieving this will require replacing fossil fuel plants with renewable energy production and repurposing forest, crop, and pasture lands where sun and wind are abundant. It will also depend upon convincing resistant communities. For instance, rural communities may not want to disrupt their pristine landscape with solar panels and wind turbines, while residents of coal towns may feel deep cultural ties to their mining history that are difficult to abandon.

When considering a project’s location, Stokes says it’s also important to take a comprehensive look at land use and siting decisions over time to more equitably distribute the impacts of energy production moving forward. To do so, it is essential to ask the right questions.

“Has a community historically been overburdened by harmful land uses?” she says. “Are we balancing new development with existing structures such that people are not overburdened? Who is going to bear the cost? Do homes receive the benefit of renewable energy from the project in their community, or are they still receiving electricity from fossil fuel-related sources?”

Stokes brings to her research a background in land use and real estate law as an attorney for McGuireWoods. She worked with developers and utility companies to site thousands of acres for solar and wind farms.

Along the way, she learned the importance of engaging with the community throughout the process — and why some community members are more receptive than others.

“Some would say their crops are underperforming or, ‘My family no longer utilizes the property for agricultural purposes,’ so I will gladly take this lease payment,” she says. “Conversely, others were resistant, inquiring why their property was being considered.

“Having that experience from the procedural and public engagement side, in addition to understanding the land rights and how to manage an issue that helps us combat or adapt to climate change — it all came together seamlessly as I transitioned into academia.”

In her 2022 Minnesota Law Review article “Renewable Energy Federalism,” Stokes recommends a centralized federal governance structure to streamline larger-scale development projects and ensure an equitable impact on local communities. The article was listed among the top 20 articles by the Environmental Law and Policy Annual Review, one of the highest honors in the field of environmental law.

She explains that some states have a standardized process, but most siting decisions are considered a local issue. If, for example, a developer wanted to tap into transmission lines that crossed the border between North and South Dakota, they would have to know the parameters for both states and several localities. With federal oversight, the government would be able to look at the country as a whole, make recommendations for best practices, and simplify the development process.

“Because of the urgency of climate change,” Stokes says, “this is the type of project where we want some federal involvement, recognizing that we still want to retain rights in local governments and states.”

Developers could also tap into federal resources like the Council on Environmental Quality’s Climate and Economic Justice Screening Tool. This interactive map gives insight into areas that have been overburdened by hazardous waste facilities and extreme air pollution; it can help guide decision making around new projects and investments.

“If a developer purchases or leases land [in those areas], there could be a new economic incentive for the population or a tax revenue that comes in,” Stokes says, “which allows the local government to make better decisions to help mitigate or adapt to climate change.”

Stokes says working in environmental law presents an opportunity to synthesize expertise from across disciplines and take that broader view of a problem.

“I tell my students, ‘You don’t have to be an expert in data, but you have to be able to understand why the scientists made a decision,’” she says. “[As lawyers,] we are trained to ask questions and get information. To identify areas where there has not been accountability. To invite in economic, scientific, technological, and health perspectives and not let one of those constantly dominate and silence another.

“Our job is to draw from all of these disciplines and bring them together to create the laws and policies.”