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Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival Dec 2013

Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival

Robert Percival

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the …


Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth Dec 2013

Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth

David A. Wirth

The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they …


A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater Dec 2013

A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater

Zygmunt J.B. Plater

From the introduction: For most if not all public interest issues in contemporary governance debates, there are in effect four branches of government, not three. For better or worse, the modern media constitute the essential public information source playing a determinative role in the intensely political internal processes of modern government at every level. To ignore the fundamental reality of this Fourth Estate 1 is not to fully understand modern civics and is to risk repeated shortfalls for citizen initiatives attempting to advance public welfare. In no other field is this proposition more evident than in the realm of governmental …


Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival Nov 2013

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Robert Percival

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …


Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell Nov 2013

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.


Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell Nov 2013

Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell

Mary Ellen O'Connell

Professor O'Connell discusses the traditional methods used for international law "enforcement," and she argues that international law is generally obeyed. Its enforcement is based primarily on compliance, not enforcement. Accordingly, the author argues against using international enforcement mechanisms to enforce international environmental law. Instead, she posits that domestic courts should be used for international environmental law enforcement; however, certain obstacles, such as sovereign immunity, the doctrine of standing, and the principle of forum non conveniens, must be overcome. Professor O'Connell argues that it may be possible to overcome many of these court-made obstacles to enforcing international law through domestic courts. …


The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria Nov 2013

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …


How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber Nov 2013

How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber

Bruce R Huber

Among the major emissions trading schemes in operation around the world, the Regional Greenhouse Gas Initiative (RGGI) stands alone: this CO2 cap-and-trade program among nine northeastern states is the only such scheme to rely primarily on auctions to distribute emissions allowances. The standard practice - distributing allowances for free on the basis of historical emissions - elicits begrudging but politically crucial support from some regulated emitters. Like carbon taxation, allowance auctioning has long been considered economically superior to its alternatives but politically infeasible.

How did the RGGI states manage to defy conventional wisdom and institute a program so reliant …


Transition Policy In Environmental Law, Bruce R. Huber Nov 2013

Transition Policy In Environmental Law, Bruce R. Huber

Bruce R Huber

Embedded within the structure of much American environmental regulation is a distinction between the new and the existing. This distinction reflects a recurrent political challenge for environmental policymakers: whether and how to mitigate regulatory burdens when policy change upsets settled expectations and investment commitments. Environmental law often grandfathers existing products and pollution sources or provides them with other kinds of transition relief. This paper presents a survey of transition policies in environmental regulation, which is followed by a pair of short case studies drawn from the trucking and pesticide industries. These examples demonstrate that the form and extent of transition …


Human Rights And Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin Nov 2013

Human Rights And Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin

Gabriel Eckstein

No abstract provided.


International Law In A Time Of Scarcity, Ertharin Cousin, Rebecca H. White, C. Donald Johnson, Lincoln Davies, José Cuesta, Barbara Deutsch Lynch, Harlan G. Cohen, Gabriel Eckstein, Lillian Aponte Miranda, Kristen E. Boon, Peter A. Appel, Anastasia Telesetsky, Aparna Polavarapu, Felix Mormann, Diane Marie Amann, Katie Croghan Nov 2013

International Law In A Time Of Scarcity, Ertharin Cousin, Rebecca H. White, C. Donald Johnson, Lincoln Davies, José Cuesta, Barbara Deutsch Lynch, Harlan G. Cohen, Gabriel Eckstein, Lillian Aponte Miranda, Kristen E. Boon, Peter A. Appel, Anastasia Telesetsky, Aparna Polavarapu, Felix Mormann, Diane Marie Amann, Katie Croghan

Gabriel Eckstein

On February 5th, 2013 the Dean Rusk Center and the Georgia Journal for International and Comparative Law hosted a daylong conference on “International Law in a Time of Scarcity.” The scarcity of resources, whether food, water, fuel sources, or clean air, may be a defining reality for global policy in the years to come. By bringing together leading policy makers and legal scholars, conference organizers created a forum to serve as a foundation for future scholarship on the role of international law in scarcity issues. The keynote speaker was Ertharin Cousin, United Nations World Food Programme executive director and 1982 …


Why Chinese Wildlife Disappears As Cites Spreads, John C. Nagle Nov 2013

Why Chinese Wildlife Disappears As Cites Spreads, John C. Nagle

John Copeland Nagle

No abstract provided.


Endangered Species Wannabees, John Copeland Nagle Nov 2013

Endangered Species Wannabees, John Copeland Nagle

John Copeland Nagle

No abstract provided.


See The Mojave!, John C. Nagle Nov 2013

See The Mojave!, John C. Nagle

John Copeland Nagle

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …


Green Harms Of Green Projects, John C. Nagle Nov 2013

Green Harms Of Green Projects, John C. Nagle

John Copeland Nagle

This article describes the recent development of renewable energy to examine environmental law’s three contrasting approaches to the green harms of green projects. Sometimes the law allows the green benefit regardless of the green harm. Sometimes the law prohibits the green harm regardless of the green benefit. And sometimes the law allows a balancing of all of the harms and benefits, green or not. Given these options, I argue that the law should not ignore or understate green harms even if they are caused by green projects. There are some types of green harms that no benefit can justify. But …


The Evangelical Debate Over Climate Change, John Copeland Nagle Nov 2013

The Evangelical Debate Over Climate Change, John Copeland Nagle

John Copeland Nagle

No abstract provided.


Cercla, Causation, And Responsibility, John C. Nagle Nov 2013

Cercla, Causation, And Responsibility, John C. Nagle

John Copeland Nagle

No abstract provided.


The Spiritual Values Of Wilderness, John C. Nagle Nov 2013

The Spiritual Values Of Wilderness, John C. Nagle

John Copeland Nagle

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the …


The Missing Chinese Environmental Law Statutory Interpretation Cases, John C. Nagle Nov 2013

The Missing Chinese Environmental Law Statutory Interpretation Cases, John C. Nagle

John Copeland Nagle

No abstract provided.


How Much Should China Pollute?, John C. Nagle Nov 2013

How Much Should China Pollute?, John C. Nagle

John Copeland Nagle

The debate concerning how much China should pollute is at the heart of international negotiations regarding climate change and environmental protection more generally. China is the world’s leading polluter and leading emitter of greenhouse gases. It insists that it has a right to emit as much as it wants in the future. China interprets the principle of “common but differentiated responsibilities” to mean that China has a responsibility to help avoid the harmful consequences associated with climate change, but that its responsibility is different from that imposed on the United States and the rest of the developed world. In fact, …


The Effectiveness Of Biodiversity Law, John C. Nagle Nov 2013

The Effectiveness Of Biodiversity Law, John C. Nagle

John Copeland Nagle

The Endangered Species Act (ESA) has generated a heated debate between those who believe that the law has succeeded and those who believe that the law has failed. The resolution to that debate depends upon whether the law’s stated purposes or some other criteria provide the basis for judging a law’s effectiveness. Meanwhile, since the enactment of the ESA in 1973, biodiversity protection has received growing attention in the nations of southeastern Asia. So far, the law has been much less effective in protecting Asian biodiversity from habitat loss, commercial exploitation, and other threats, yet southeastern Asia’s biodiversity law has …


The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John C. Nagle Nov 2013

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John C. Nagle

John Copeland Nagle

Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital …


Lead Poisoning In Children: A Proposed Legislative Solution To Municipal Liability For Furnishing Lead-Contaminated Water, Anthony J. Bellia Oct 2013

Lead Poisoning In Children: A Proposed Legislative Solution To Municipal Liability For Furnishing Lead-Contaminated Water, Anthony J. Bellia

Anthony J. Bellia

Lead poisoning has become one of the most widespread and serious environmental diseases facing children in the United States. In response to the problem of childhood lead exposure, the Environmental Protection Agency (EPA) has promulgated expansive regulations to reduce drinking water lead levels. However, the regulations are not without significant gaps and shortfalls. Many improvements that the EPA requires need not be in place for years, and some households at risk of unsafe lead exposure receive no regulatory protection at all. One question that arises amidst these regulatory gaps is whether a plaintiff can hold a public water system liable …


The Viability Of Citizens’ Suits Under The Clean Water Act After Gwaltney Of Smithfield V. Chesapeake Bay Foundation, Bevery Mcqueary Smith Oct 2013

The Viability Of Citizens’ Suits Under The Clean Water Act After Gwaltney Of Smithfield V. Chesapeake Bay Foundation, Bevery Mcqueary Smith

Beverly McQueary Smith

No abstract provided.


Introduction: Connecting The Dots Between Two Parallel Worlds, Rena Steinzor Sep 2013

Introduction: Connecting The Dots Between Two Parallel Worlds, Rena Steinzor

Rena I. Steinzor

No abstract provided.


Is The Supreme Court Irrelevant--Reflections On The Judicial Role In Environmental Law, Daniel A. Farber Sep 2013

Is The Supreme Court Irrelevant--Reflections On The Judicial Role In Environmental Law, Daniel A. Farber

Daniel A Farber

No abstract provided.


Taking Slippage Seriously: Noncompliance And Creative Compliance In Environmental Law, Daniel A. Farber Sep 2013

Taking Slippage Seriously: Noncompliance And Creative Compliance In Environmental Law, Daniel A. Farber

Daniel A Farber

Environmental law is examined in light of the slippage between regulatory standards and the actual conduct of regulated parties. Two forms of slippage are identified: negative, which describes the situation where something that is legally mandated to happen fails to happen; and affirmative, which describes the situation where required standards are renegotiated rather than ignored. This concept of slippage is explored in terms of how it might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. Slippage is good in the context that it can ameliorate the sometimes impractical demands found in statues, and bad in the context that …


Saving Overton Park: A Comment On Environmental Values, Daniel A. Farber Sep 2013

Saving Overton Park: A Comment On Environmental Values, Daniel A. Farber

Daniel A Farber

Presents comments on an article about environmental goods. Background of incommensurability and federal environmental law; What the environmental law seems to incorporate; Overview of the incommensurability and individual choice.


Stretching The Margins: The Geographic Nexus In Environmental Law, Daniel A. Farber Sep 2013

Stretching The Margins: The Geographic Nexus In Environmental Law, Daniel A. Farber

Daniel A Farber

No abstract provided.


Politics And Procedure In Environmental Law, Daniel A. Farber Sep 2013

Politics And Procedure In Environmental Law, Daniel A. Farber

Daniel A Farber

Deals with a study which applied interest-group theories on environmental laws. Relationship between legislators and environmental groups; Sources of environmental legislation; Role of environmental groups in the passage of environmental legislation.