Law Commons^™

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Faculty Scholarship

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …

The Tale Of A Tail, James F. Hogg

Faculty Scholarship

The commercial general liability insurance industry shifted, in 1986, from the use of an “occurrence-based” to a “claims-made” policy form. So-called “tail” or “long tail” claims have continued nevertheless, to be asserted under the older “occurrence” policies which required that injury occur during the term of the policy, but not that the claim for such injury be made or brought at any particular time. In seeking state approval to use the new “claims-made” form in 1985-86, the insurance industry represented that the new form would not affect coverage under the old “occurrence” form. Despite that representation, insurers are now asserting, …

The Goals Of Environmental Enforcement And The Range Of Enforcement Methods In Israel And In The United States, Marcia R. Gelpe

Faculty Scholarship

The article examines enforcement of the environmental laws of Israel and of the United States. It concentrates on provisions for enforcement of the laws by government authorities--that is, either by administrative authorities or by the courts at the request of an administrative authority. Environmental laws in many jurisdictions may also be enforced by private actions. These private enforcement actions are not addressed specifically in this article, although much of what is said is also applicable to such actions.

Organizing Themes Of Environmental Law, Marcia R. Gelpe

Faculty Scholarship

This article is designed to assist students and lawyers in their work in the field of Environmental Law; specifically, in the area of preventing and mitigating the effects of pollution. The article begins with the origins of modern environmental law. It briefly summarizes the reasons we have environmental problems and describes the inadequacies of the common law responses. This is key to understanding modern environmental statutes, which are designed to remedy the shortcomings of the common law. The main part of the article sets out the various approaches to remedying those shortcomings and gives examples of environmental statutes which take …

Penalties In Settlements Of Citizen Suit Enforcement Actions Under The Clean Water Act, Marcia R. Gelpe

Faculty Scholarship

This article critiques the feminist view Ute Gerhard offers in “Debating Women's Equality: Toward a Feminist Theory of Law from a European Perspective”. Throughout Debating Women's Equality, Gerhard appears to have three ambitious objectives in mind: (1) to decry the paucity of research into women's legal history while beginning to do the needed work, focusing primarily on Germany but also broadly exploring European trends, (2) to demonstrate that German/European women's legal history ultimately vindicates reliance on “equal rights” as a political strategy for women, and (3) to develop an understanding of legal equality that can serve as a meaningful tool …

Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe

Faculty Scholarship

Federal and state laws limiting environmental emissions reflect three approaches to deciding how much money to spend on improving environmental quality. The balancing approach estimates the benefits of limiting emissions and the costs of meeting various limits, then sets limits at levels where benefits justify costs. The cost ignoring approach sets emissions limits at levels necessary to prevent environmental harm, without considering the costs of meeting those limits. Technology-based standards limit emissions to levels attainable using the best pollution control technology, as long as no significant environmental effects are known to occur at those levels. In this article, the author …

Exhaustion Of Administrative Remedies: The Lesson From Environmental Cases, Marcia R. Gelpe

Faculty Scholarship

The law governing exhaustion of administrative remedies is complex and confusing and fosters needless litigation: litigation that is burdensome to the courts and costly to defendants, that adversely affects agency decision making and that by its very existence, wrongly influences courts to dispense with the exhaustion requirement. Exhaustion remains troublesome to the courts; many of the decisions are confusing and poorly reasoned. A reexamination of the exhaustion doctrine is called for, not only to indicate how the cases should be decided, but also to clarify the issues sufficiently to guide parties' behavior so that they may avoid litigation over exhaustion's …

Compensation For Victims Of Hazardous Substance Exposure, J. David Prince

Faculty Scholarship

Hazardous wastes, threatening environmental and human safety, are being generated at an alarming rate. In this Article, J. David Prince discusses the threats posed by hazardous wastes and the remedies that are available in Minnesota for dealing with those threats. Professor Prince analyzes a proposed compensation scheme for victims of hazardous waste exposure in Minnesota and suggests that a modification of that scheme be adopted by the Minnesota Legislature.

Animal Feedlot Regulation In Minnesota, Marcia R. Gelpe

Faculty Scholarship

Animal feedlots frequently are the subject of dispute between operators and surrounding landowners. In this Article, Professor Gelpe identifies the environmental problems created by animal feedlots and discusses the common-law remedies. In addition, Professor Gelpe provides valuable insights into the application and Interpretation of feedlot regulations recently enacted by Minnesota.

Annual Report Of The Electric Power Committee, J. David Prince

Faculty Scholarship

This is the annual report of the Electric Power Committee for 1980. It reports on legislative and judicial developments, and issues relevant to the Electric Power Committee.

Annual Report Of The Electric Power Committee, J. David Prince

Faculty Scholarship

This is the annual report of the Electric Power Committee for 1979. It reports on legislative and judicial developments, and issues relevant to the Electric Power Committee. This report is in four parts. Part I reviews the extensive developments during 1978 under the federal air and water pollution laws. Part II briefly considers other federal developments of significance to the electric power industry. Part III is an update of last year's review of developments concerning solar energy. Part IV consists of the 1978 reports from selected states.

The Uses Of Scientific Information In Environmental Decision Making, Marcia R. Gelpe

Faculty Scholarship

This Article explores the response of the legal system to the uncertainty which is inherent in the scientific analysis of environmental impact. The first principle of due process is that the assignment of responsibility correspond with the actor who did in fact cause the injury. We argue that existing concepts of cause-in-fact, the foundation of liability, place potentially severe constraints on the ability of the legal system to respond to the need to minimize the risks of future environmental injury. Further, these constraints exist to some degree regardless of whether the prohibitions or restrictions take the form of adjudication, administrative …