Law Commons^™

Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

Articles

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology …

Biodiversity, Baking And Boiling, Endangered Species Act Turning Down The Heat, Anna T. Moritz, Kassie R. Siegel, Brendan R. Cummings, William H. Rodgers, Jr.

Articles

Today the Earth faces an extinction event on a scale second only to Earth's largest mass extinction, the Permian-Triassic event, which occurred 250 million years ago. Upwards of 70 percent of the Earth's species could be at risk of extinction with a 3.5°C (6.3°F) rise in temperature, which could occur by the end of this century.

The driver is global warming, caused by anthropogenic greenhouse gas emissions. As such, a rational climate policy is needed immediately to prevent the complete collapse of biodiversity. Yet, the United States—the world's largest cumulative contributor to emissions—is in a state of paralysis when it …

Useful Global-Change Scenarios: Current Issues And Challenges, Edward A. Parson

Articles

Scenarios are increasingly used to inform global-change debates, but their connection to decisions has been weak and indirect. This reflects the greater number and variety of potential users and scenario needs, relative to other decision domains where scenario use is more established. Global-change scenario needs include common elements, e.g., model-generated projections of emissions and climate change, needed by many users but in different ways and with different assumptions. For these common elements, the limited ability to engage diverse global-change users in scenario development requires extreme transparency in communicating underlying reasoning and assumptions, including probability judgments. Other scenario needs are specific …

Ossification’S Demise? An Empirical Analysis Of Epa Rulemaking From 2001-2005,, Stephen M. Johnson

Articles

For more than a decade, academics have suggested agencies are increasingly avoiding notice and comment rulemaking because the process has become “ossified” by procedures imposed by Congress, courts and the Executive Branch, and because the rules ultimately issued by agencies are frequently challenged. This article reviews the rules the United States Environmental Protection Agency (EPA) issued between 2001 and 2005 to determine the validity of those criticisms. With regard to judicial challenges, 75% of EPA’s most important (“economically significant”) rules issued between 2001 and 2005 were challenged in court. This is consistent with the anecdotal claims of former EPA Administrators …

Strange Bedfellows, David M. Uhlmann

Articles

Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …