Course Info
This course examines the growing environmental control provided by the private sector in reaction to social pressure and how that is shaped by laws around information disclosure. To set the stage the course will also examine the market bases of environmental regulation and how the private sector also has governance structures of its own. Students will examine 1) the economic and theoretical bases for environmental laws; 2) emerging corporate and private sector behavior in response to these laws, financial disclosure laws, and public opinion; and 3) private environmental governance.
Instructor
Prof. Victor Flatt is a Professor of Law, the Coleman P. Burke Chair in Environmental Law, and Associate Director of the Burke Environmental Law Center. He is a nationally recognized expert on environmental law, climate law, and energy law, and the intersection of these areas.
Syllabus
The syllabus for your course is available on Canvas.
Textbook
** No Text Required **
Readings & Research Resources
This section includes links to the full text of your assignments (not the Flatt edits, which are on Canvas), as well as relevant research resources organized according to your syllabus.
Business and Ecology Databases
Current news:
- E&E News
- The Environmental Law Reporter (Case only database)
- Environmental, Social & Governance, Bloomberg News (password needed)
- ESG (Environmental, Social, Governance), Blog, Yale Center for Environmental Law & Policy
- ESG and Green Business, CNBC
- GreenBiz
- Federal Register (get daily email of table of contents with links)
- Working Papers on ESG, Harvard Business School
I. Introduction
These links are to the full text of reading assignments:
Garrett Hardin, Tragedy of the Commons, 162 Science, New series 1243 (No. 3859, Dec. 13, 1968)
Carol M. Rose, Management Strategies for Commons Resources," 1991 Duke Law Journal 1
Key Issues
Grant Harrison, 'Lawyer up': Republican rhetoric over ESG escalates" GreenBiz (Nov. 16, 2022).
Research Note: Title of news stories may differ depending on source - if you are searching by a title and cannot find a story, try using the first sentence of the story as your search.
More information (links from the above article make that easier):
Letter from Senators:
- "The Letter" to Law Firms
- A rebuttal to "The Letter" [Robert G. Eccles, An Open Letter To Five Republican Senators (Which I Hope Will Be Helpful), Forbes, Nov. 8, 2022, 3:30pm EST
ESG ratings
- Chelsey Cox, Senate Republicans press S&P and other credit firms for methodology on corporate ESG ratings, CNBC Sept. 21, 2022 1:38 PN EST.
SEC rules concerning ESG
Investment Company Names (Conformed to Federal Register version)
Other Release Nos: 34-94981, IC-34593
File No: S7-16-22
Comments Due: Aug. 16, 2022
Comments received are available for this proposal.
See Also: Press Release No. 2022-91; Fact Sheet
The Enhancement and Standardization of Climate-Related Disclosures for Investors
Other Release No: 34-94867
File No: S7-10-22
Comments Due: June 17, 2022
Comments received are available for this proposal.
Federal Register version (87 FR 21334 )
See Also: Press Release No. 2022-82
II. Private Environmental Governance and Legal Practice
These links are to the full text of reading assignments:
Michael Vandenbergh, Private Environmental Governance Introduction, 99 Cornell Law Review 129 (2013)
Sarah Light, The Law of the Corporations As Environmental Law, 71 Stanford Law Review 137 (2019)
Virginia Ho article, Modernizing ESG Disclosure, 2022 University of Illinois Law Review 277
Jean Haggerty, Greenbiz: The Coming EGS Explosion, Greenfin
Carla Parson, Paul Watchman, and Vanessa Wood, The Rise of ESG Law Firms Part I, responsible investor, October 26, 2020
More about ESG
ESG (Environmental, Social, Governance)
- Introduction to EGS, Posted by Mark S. Bergman, Ariel J. Deckelbaum, and Brad S. Karp, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Saturday, August 1, 2020
- ESG - Bloomberg Law (password)
Law Firm EGS Practices
Natalie Runyon, Law Firms' ESG Practice Continues to Drive Economic Growth and Better Alignment with Clients, Reuters, Dec. 14, 2022 12:26 PM EST>
Some examples of Law Firm's marketing of ESG practice:
- Paul Weiss - Sustainability & Environmental, Social and Governance (ESG) Advisory Practice
- Baker Botts - Environmental, Social, Governance (ESG)
- Gibson Dunn - Environmental, Social and Governance (ESG)
III. Using the Private Sector and Private Economic Behavior - Are Markets Moral
These links are to the full text of reading assignments:
The Epic Journey of a Modest Proposal, CLIMATEWIRE, E&E News May 2016.
A Journal on Topic
Journal
Journal of Markets & Morality (published by Acton Institute for the Study of Religion & Liberty)
IV. Commodity Trading Primer
These links are to the full text of reading assignments:
Victor B. Flatt, Decisions About Emissions Trading Design in Decision Making in Environmental Law (LeRoy C. Paddock, Robert L. Glickman, & Nicholas S. Bryner eds. (2016) Law Library ( Chapter on SSRN)
V. Problems with Environmental Markets
These links are to the full text of reading assignments:
Michael Pappas and Victor B. Flatt. “The Costs of Creating Environmental Markets: A Commodification Primer” 9 U.C. Irvine Law Review 731 (2019)
Organizations Involved
Government
USDA's Office of Environmental Markets
Private
Duke, Nicholas Institute from Energy, Environment & Sustainability, Environmental Markets
VI. The Demand for Corporate Disclosure
These links are to the full text of reading assignments:
Raul Rissman and Diana Kearny, Rise of the Shadow ESG Regulators, 49 Envtl. L. Rep. News & Analysis 10155 (2019)
Selling Stocks
ESG investing, Vanguard
An Integrated Approach to ESG, Blackstone
VII.The Elements of a Corporate Sustainability Plan
These links are to the full text of reading assignments:
A. Bertels and B. Toews, Next Generation Governance: Developing Position Statements on Sustainability Issues, (2018), Embedding Project
International Sustainable Account Standards Board (Home page) (see menu items about the Sustainability Accounting Standards Board)
SASB Standards Board Meeting - March 2, 2022 - YouTuble
Organizations Involved
VIII. The Sustainability Ratings Agencies
Assignment link:
Organizations Involved
More About ESG Ratings
ESG Ratings
- ESG Ratings, Research Guide on Diversity & Sustainability in Business, University of Minnesota Library
X. Additional Legal Liability Potential with ESG and Sustainability
These links are to the full text of reading assignments:
Latham and Watkins. ESG Litigation Roadmap, (2020)
Law Firm - General Legal Information
Additional Disclosures
Reporting Corporate Climate Risks and Opportunities, EPA Center for Corporate Climate Leadership
Conference of the Parties (COP) - United Nations Climate Change
Olivia Rosane, The COP Process: What You Need to Know, EcoWatch, Nov. 8, 2022.
XI. Private sector as Primary Environmental Regulatory Body
These links are to the full text of reading assignments:
Latham and Watkins. ESG Litigation Roadmap, (2020)
Michael Vandenbergh, Private Environmental Governance, 99 Cornell L. Rev. 129 (2013)
Sarah Light, The Law of Corporation as Environmental Law, 71 Stan. L. Rev. 137 (2019)
XII. Conflicting Government Policy (The Politics of Anti-ESG)
These links are to the full text of reading assignments:
Victor Byers Flatt & Yee Huang, Climate Change Adaptation: The Impact of Law in the Private Sector (white paper from the Center for Law Environment Adaptation and Resources, and the Center for Progressive Reform, August 2012)