Law Commons^™

The Environmentalist Attack On Environmental Law, John Copeland Nagle

John Copeland Nagle

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law …

The Idea Of Pollution, John C. Nagle

John Copeland Nagle

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it. But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …

Pope Francis, Environmental Anthropologist, John Copeland Nagle

John Copeland Nagle

In June 2015, after much anticipation and a few leaks, Pope Francis released his encyclical entitled “Laudato Si’: On Care for Our Common Home. “Laudato si’” means “praise be to you,” a phrase that appears repeatedly in Saint Francis’ Canticle of the Sun poem. The encyclical itself has been widely praised and widely reported, far more than one would expect from an explicitly religious document. The encyclical is breathtakingly ambitious. Much of it is addressed to “every person living on this planet,” while specific parts speak to Catholics and others to religious believers generally. It surveys a sweeping range of …

The Evangelical Debate Over Climate Change, John Copeland Nagle

John Copeland Nagle

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …

Cercla's Mistakes, John C. Nagle

John Copeland Nagle

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) confounds every theory of statutory interpretation. Congress hurriedly enacted CERCLA during the lame-duck period following the election of President Reagan and a Republican Senate majority in November 1980 but before they took office in January 1981. The resulting statute has been criticized for its apparently textual mistakes, sparse legislative history, conflicting purposes, and questionable public policy. Courts routinely complain about the difficulty of interpreting CERCLA under those circumstances. This article reviews several of the interpretive challenges presented by CERCLA, and suggests some broader implications for statutory interpretation more generally. CERCLA, hazardous …

The Hidden Rise Of Efficient (De)Listing, Zachary A. Bray

Zachary Bray

What is the value of the gray wolf, and what might be the costs of including a tiny desert lizard on the list of endangered species? For decades, Congress has formally excluded questions about the economic value of species and the costs of their protection from agency decisions about whether a species should be listed under the Endangered Species Act. Recently, however, a number of federal legislators have sought to incorporate their own ad hoc views about the value of individual species in peril, and the costs of protecting such species, into listing decisions. This goal has been accomplished through …

Appliance Efficiency, David R. Hodas

David R. Hodas

Surface Water In Indiana, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Environmental Protection As A Learning Experience, Daniel A. Farber

Daniel A Farber

No abstract provided.

Climate Justice, Daniel A. Farber

Daniel A Farber

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …

California Climate Law---Model Or Object Lesson?, Daniel A. Farber

Daniel A Farber

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes. At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening …

Water, Growth And The Endangered Species Act, Holly Doremus

Holly Doremus

24 pages.

Climate Change And The Evolution Of Property Rights, Holly Doremus

Holly Doremus

No abstract provided.

Water, Growth And The Endangered Species Act, Holly Doremus

Holly Doremus

24 pages.

Water, Growth And The Endangered Species Act, Holly Doremus

Holly Doremus

24 pages.

Adaptive Management And The Future Of Environmental Law, Eric Biber

Eric Biber

Adaptive management is the new paradigm in environmental law. It is omnipresent in scholarship and management documents and is even starting to appear in court opinions. There have been many calls for environmental law to adapt itself to adaptive management by becoming more flexible and dynamic. But does adaptive management really warrant a revolution in environmental law? Or is it adaptive management that might need to adapt to the world of environmental law? There has been an abundance of scholarship on the strengths of adaptive management, making the case for changing environmental law to embrace adaptive management. But answering the …

Bruce Huber Was A Guest On Npr's All Things Considered, "What The Keystone Xl Pipeline Decision Actually Means", Bruce R. Huber

Bruce R Huber

President Obama has rejected the application to complete the Keystone XL pipeline. Bruce Huber, professor of energy law at the University of Notre Dame, talks about the Keystone pipeline decision.

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

Patricia E. Salkin

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang

Christine A. Klein

As a metaphor for the interaction of law and culture, bottled water is striking in its simplicity and clarity. Bottled water consumers form a surprisingly loyal subculture of beverage drinkers, united by the water truths and water myths that they embrace. More recently, an equally fervent subculture of bottled water protestors has begun to coalesce. Notably, the cultural norms associated with both supporters and detractors extend beyond mere hydration and encompass such fundamental and varied notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast to the cultural story, the legal narrative is surprisingly sparse, overlooking an …

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein

Christine A. Klein

In 2007, the nation entered its greatest financial downturn since the Great Depression of the 1930s. What followed was a period of national introspection. Although prescriptions for financial rescue varied widely in the details, a surprisingly broad consensus emerged as to the underlying pathology of the crisis. This Article explores three principal contributing factors and the lessons associated with each that make up this pathology. These factors include: rejecting rules through deregulation, trivializing risk through overly optimistic analyses, and overconsumption supported by reckless borrowing and lending practices. The powerful lessons from this pathology, considered by a stunned nation in the …

The Dormant Commerce Clause And Water Export: Toward A New Analytical Paradigm, Christine A. Klein

Christine A. Klein

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska ex rel. Douglas. Determining that groundwater is an article of commerce, the Court held invalid under the dormant Commerce Clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas has challenged Oklahoma legislation limiting water exports, and as Wind River L.L C of …

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

Christine A. Klein

Climate change adaptation is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and its …

Billy Joel: The Chronicler Of The Suburbanization In New York, Patricia E. Salkin, Irene Crisci

Patricia E. Salkin

Artists often chronicle historical developments through their chosen medium. In the case of Billy Joel, some of his lyrics can be traced to the early sustainability movements as he wrote about the migration of people from the cities and the attendant problems with rapid suburbanization. Described by Tony Bennett as “a poet, a performer, a philosopher and today’s American songbook,” his lyrics address, among other topics, land use, community development, and environmental issues. Following World War II, there was a major shift in population settlement patterns in the United States. As war heroes returned home, not only did the country …

Carbon Sinks Science And The Preservation Of Old Growth Forests Under The Kyoto Protocol, Dayna Scott

Dayna N. Scott

The structure of the mechanisms in the Kyoto Protocol with respect to "carbon sinks," may be integrated so as to place incentives on national governments that counter recent progress made towards the preservation of old-growth forests. A focus on the element carbon fails to recognize values other than sequestration that standing forests can provide. For example, an approach that strictly seeks to increase the rate of fixation of atmospheric carbon will favour replacing old-growth forests with monocultural plantations of trees. The international community, in implementing these mechanisms, may frustrate other environmental initiatives such as the conservation of endangered species habitat …

Carbon Sinks Science And The Preservation Of Old Growth Forests Under The Kyoto Protocol, Dayna Scott

Dayna N. Scott

The structure of the mechanisms in the Kyoto Protocol with respect to "carbon sinks," may be integrated so as to place incentives on national governments that counter recent progress made towards the preservation of old-growth forests. A focus on the element carbon fails to recognize values other than sequestration that standing forests can provide. For example, an approach that strictly seeks to increase the rate of fixation of atmospheric carbon will favour replacing old-growth forests with monocultural plantations of trees. The international community, in implementing these mechanisms, may frustrate other environmental initiatives such as the conservation of endangered species habitat …

Situating Sarnia: Unimagined Communities In The National Energy Debate, Dayna Scott

Dayna N. Scott

No abstract provided.

Partnership Advocacy In World Bank Environmental Reform, David A. Wirth

David A. Wirth

No abstract provided.

Cracking The American Climate Negotiators’ Hidden Code: United States Law And The Paris Agreement, David A. Wirth

David A. Wirth

Short Presentations Followed By Facilitated Discussions, James Houck, David Titley, Michael Mann

James Houck

Retired Navy Vice Adm. James W. Houck is interim dean and Distinguished Scholar in Residence at Penn State Law and the School of International Affairs. Houck focuses his research and teaching on international law and national security law, with a particular emphasis on the law of the sea and the law of armed conflict. He joined Penn State in 2012 after retiring as the 41st judge advocate general of the U.S. Navy, during which time he was the principal military legal counsel to the secretary of the Navy and chief of naval operations. In this role, he led the 2,300 …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Jill M. Fraley

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …