Digital Commons Network^™

Agenda For A Sustainable America, John Dernbach

John C. Dernbach

No abstract provided.

Ending The Honeymoon: Deconstructing Emissions Trading Discourses, Sanja Bogojević

Sanja Bogojević

Emissions trading schemes are often portrayed as straightforward regulatory strategies. The aim of this article is to initiate a much needed environmental law debate on this subject and defy any claims about emissions trading being unproblematic from a legal viewpoint. In doing so, I deconstruct emissions trading discourses, or more precisely, I categorise different viewpoints, as presented in emissions trading literature, in the Economic Efficiency, Private Property Rights, and Command-and-Control models. These reflect ways in which emissions trading schemes are understood in the relevant scholarly discussions. More importantly, the models show that emissions trading can be viewed through different lenses, …

Cap And Trade Programs Under The Clean Air Act: Lessons From The Clean Air Interstate Rule And The Nox Sip Call, Patricia Ross Mccubbin

Patricia Ross McCubbin

The Clean Air Interstate Rule (CAIR), adopted in 2005, was well recognized as the most important rule to improve air quality adopted by the Bush Administration. To alleviate high levels of smog and soot east of the Mississippi, the rule capped harmful emissions in 28 states, but allowed regulated facilities to participate in an emissions trading program. Such cap and trade programs have become a favored tool for EPA and many other parties because they allow industries to meet environmental goals cost-effectively. CAIR received widespread support from many quarters. States and environmental organizations viewed the rule as a good step …

Not At All: Environmental Sustainability In The Supreme Court, James R. May

James R. May

The principle of “sustainability” is soon to mark its 40th anniversary. It is a concept that has experienced both evolution and stasis. It has shaken the legal foundation, often engaged, recited, and even revered by policymakers, lawmakers, and academics worldwide. This essay assesses the extent to which sustainability registers on the scales of the United States Supreme Court, particularly during the tenure of Chief Justice John Roberts. None of the environmental cases decided thus far during the tenure of Chief Justice Roberts engage sustainability. The word “sustainability” does not appear to exist before the Court. It does not appear in …

Should Owners And Developers Of Low-Performance Buildings Pay Impact Or Mitigation Fees To Finance Green Building Incentive Programs And Other Sustainable Development Initiatives?, Carl J. Circo

Carl J. Circo

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

Alice Kaswan

A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency …

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly

James R. May

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

Constitutional Law And The Future Of Natural Resource Protection, James R. May

James R. May

This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …

Climate Change Litigation: Opening The Door To The International Court Of Justice, Andrew L. Strauss

Andrew L. Strauss

This chapter examines the potential for the International Court of Justice to serve as a forum for climate change litigation. It begins by assessing the potential legal and political implications of an International Court of Justice decision on climate change. It then proceeds to evaluate various jurisdictional basis upon which the Court could agree to hear cases implicating climate change. Finally, the chapter provides an overview of the law the law applicable to climate change litigation before the Court.

Assessing The Impact Of The Nuclear Age On The Oceans And Its Legal Regime, David D. Caron, Harry N. Scheiber

David D. Caron

No abstract provided.

The Oceans In The Nuclear Age: Challenges, Questions And Possibilities, David D. Caron, Harry N. Scheiber

David D. Caron

No abstract provided.

The Rising Tide Of Climate Change: What America’S Flood Cities Can Teach Us About Energy Policy And Why We Should Be Worried, Joshua P. Fershee

Joshua P Fershee

To provide a model for assessing the current and likely responses to climate change risks, this Article considers two of America’s worst flood disasters—in Grand Forks, North Dakota, and New Orleans, Louisiana— and applies the same rationale to critical climate change issues facing the nation today. This Article, written by a current resident of Grand Forks and a former New Orleans resident, begins with a background on climate change and related policy initiatives. Next, it considers the flood of 1997 in Grand Forks, which caused more than 50,000 people to abandon their homes. The development of the flood preparations, the …

The Intersection Of Constitutional Law And Environmental Litigation, James R. May

James R. May

The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …

Emissions Reduction Tax Credit Policy Initiative: Leadership From A Round Table, Beau James Brock

Beau James Brock

A power point presentation of a pro-active solution to emissions reduction for our state. It is a result-oriented incentivized emission reduction program.

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …

The Status And Evolution Of Laws And Policies Regulating Privately Owned Tigers In The United States, Philip J. Nyhus, Michael Ambrogi, Caitlin Dufraine, Alan Shoemaker, Ronald L. Tilson

Philip J. Nyhus

No abstract provided.