Law Commons^™

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Rena I. Steinzor

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Corrective Lenses For Iris: Additional Reforms To Improve Epa's Integrated Risk Information System, Rena I. Steinzor, Wendy E. Wagner, Lena Pons, Matthew Shudtz

Rena I. Steinzor

The Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) is the most important toxicological database in the world. Not only is it the single most comprehensive database of human health information about toxic substances, it also serves as a gateway to regulation, as well as to a range of public and private sector efforts to protect against toxic substances. IRIS “profiles” of individual substances include a number of scientific assessments of the substance’s toxicity to humans by various means of exposure – by inhalation, contact with the skin, and so on. Federal regulators rely on the assessments to do …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Alyson Flournoy, William Andreen, Rebecca Bratspies, Holly Doremus, Victor Flatt, Robert Glicksman, Joel Mintz, Daniel Rohlf, Amy Sinden, Rena I. Steinzor, Joseph Tomain, Sandra Zellmer, James Goodwin

Rena I. Steinzor

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

Liability For Environmental Harm And Emerging Global Environmental Law, Robert V. Percival

Robert Percival

Environmental law and policy are undergoing rapid change at the global, national, and even local levels. The nations of the world continue to struggle to develop an effective global response to climate change. Transboundary pollution and resource management problems command regional attention even as nations work to upgrade their own environmental standards and their energy, transportation, and land use policies. Surprising environmental initiatives are emerging even from state and local governments. In my previous work I have argued that globalization is affecting law and legal systems throughout the world in profound new ways. See Robert V. Percival, The Globalization of …

Some Back-Ended Legal And Political Issues In United States Fisheries Management, Chad J. Mcguire, Bradley P. Harris

Chad J McGuire

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn

Lea B Vaughn

Abstract: Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self aggrandizing manipulators of various social and environmental causes. A more nuanced examination of “cause lawyering” reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of “cause lawyering” limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that …

Moving Power Forward: Creating A Forward-Looking Energy Policy Based On A National Rps, Joshua P. Fershee

Joshua P Fershee

In Power Forward: The Argument for a National RPS, Professor Lincoln L. Davies provides a comprehensive and compelling argument for a national renewable portfolio standard (“RPS”). This Commentary Article reviews Professor Davies’ assumptions and conclusions and places his RPS analysis in context within the broader energy and environmental debate.

Beyond expanding renewable energy generation and shifting away from fossil fuels, RPS legislation is often motivated by additional goals: addressing climate change, improving national security, and promoting economic development. This Commentary Article argues that, if these loftier goals are to be achieved, a better articulation of RPS objectives is necessary. Furthermore, …

Climate Adaptation And The Fifth Amendment To The United States Constitution: How Do Adaptation Strategies Impact Regulatory Takings Claims?, Chad J. Mcguire

Chad J McGuire

The Moral Limits Of Jurisdiction, Beau James Brock, Harold Leggett

Beau James Brock

As the states and the public face new rules on emissions under the Clean Air Act, the authors find that environmental policy devoid of economic feasibility equals ethical bankruptcy by policymakers to the detriment of all citizens and their economic liberty

Hanousek V. United States: Social Engineering Encroaching On Individual Liberty, Beau James Brock

Beau James Brock

A legal decision that unexpectedly judicially “extended the reach environmental criminal law” was Hanousek v. United States, wherein the United States Court of Appeals for the Ninth Circuit held the legal standard for criminal negligence under the Clean Water Act (CWA) was ordinary negligence.

One Year's Environmental Litigation: 1977-78, Oscar S. Gray

Oscar S. Gray

No abstract provided.

Renaissance Of Environmental Criminal Investigation In Louisiana: A Model For The Nation, Beau James Brock, Michael Daniels

Beau James Brock

In Louisiana, perpetrators of knowing criminal violations of the Louisiana Environmental Quality Act, Title 30 subject themselves to felony conduct. Now, that is not just idle words on a page. This law enforcement arm built to preserve the quality of life for every citizen of Louisiana is no longer a paper tiger, but a fightin’ tiger, capable of and willing to investigate in any situation. In the spring of 2008, sustainable programmatic changes in CID were immediately put into place. Some of these included the following: 1) comprehensive overhaul of the then current policies and procedures; 2) the replacement of …

Section 4(F) Of The Department Of Transportation Act, Oscar S. Gray

Oscar S. Gray

No abstract provided.

Workers At Risk: Regulatory Dysfunction At Osha, Thomas Mcgarity, Rena I. Steinzor, Sidney A. Shapiro, Matthew Shudtz

Rena I. Steinzor

The Occupational Safety and Health Administration was born with a heavy load to bear – the obligation of ensuring that every worker in America has a safe and healthful workplace for his or her entire working life. In its early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a …

Mitigating The Distributional Impacts Of Climate Change Policy, Tracey M. Roberts

Tracey M Roberts

Under both a cap-and-trade system and a greenhouse gas tax, the government will regulate energy suppliers and distributors, utility companies, and large manufacturers. These parties will bear the statutory incidence of the regulation. However, the financial impacts of regulating greenhouse gas emissions will be borne primarily by consumers. Consumers will bear the economic incidence of the regulation in the form of increased costs of gasoline, electricity, and home heating fuels and in increased consumer prices for all goods manufactured or distributed using fossil fuels. Greenhouse gas regulation will also generate significant revenue. This Article addresses the question of what should …

Stopping Nuclear Power Plants: A Memoir, Louis J. Sirico Jr.

Working Paper Series

A memoir of the author's involvement in the anti-nuclear power movement.

The Political Consequences Of Legal Victories: Ballast Regulation And The Clean Water Act, Zdravka Tzankova

Zdravka Tzankova

Federal conservation policy has seen a new development recently: the use of the Clean Water Act (CWA) as a tool for regulating ballast water discharges from ships and, thereby, for preventing biological invasions caused by the discharge of nonindigenous organisms in ballast. Some outcomes of this new method for regulating ballast water discharge are obvious, others are much less so. Superimposing CWA regulatory authority on an already existing system of U.S. ballast law and regulation is likely to change the politics of ballast regulation. What do such changes in regulatory politics spell for the future of regulatory protections against biological …

Miccosukees And The Tamiami Trail Bridge: Examining The Tribe’S Attempts To Sink The Modified Waters Delivery Project, Jeffrey A. Hegewald

jeffrey a hegewald

In the fall of 2008, legal challenges to the Tamiami Trail Bridge project threatened to derail a critical component of the $7.3 billion Everglades restoration program. Indeed, only the Omnibus Spending Act of 2009 saved the project following a ruling from the Federal District Court for the Southern District of Florida. Prior to the events discussed in my note, failure appeared almost certain for years of research, development, and project adaptations performed by the Army Corps of Engineers in conjunction with the DOI/National Park Service.

My note, "Miccosukees and the Tamiami Trail Bridge: Examining the Tribe’s Attempts to Sink the …

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Stepan Wood

This Article examines the history of Canadian environmental law to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic, and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced …

Decision On Bt-Brinjal: Issues Of Legal Certainty, Nupur Chowdhury, Nidhi Srivastava

Nupur Chowdhury

The recent decision of the government of India to impose a moratorium on the release of Bt-Brinjal has been hailed by civil society and scientists alike as a victory for transparency and has demonstrated that the government is responsive to societal demands. This decision is also important since it could set a precedent within environmental regulation with reference to technologies with significant environmental risks. However, the decision also reflects a clear departure from procedure and its legal basis is tenuous and therefore the risk of it being reversed remains. This establishes a clear case for ensuring legal certainty in environmental …

Cleaning Up The Muck: Clarifying The Scope Of Cercla's Potentially Responsible Parties, Matthew K. Telford

Matthew K Telford

Last term, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court clarified the scope of CERCLA’s arranger liability by holding that an arranger must intend to dispose, in order to be held liable as a Potentially Responsible Party (“PRP”). The case sheds light on the Supreme Court’s plain language construction of CERCLA, and its willingness to graft requirements for liability which some consider inconsistent with a strict liability statute. The Court’s decision focuses attention on other PRP disputes, specifically the extent to which a previous owner, one of the four categories of PRP, can be …

Can The Law Facilitate A Finance Shift From Mitigation To Adaptation?, Kirk W. Junker

Kirk W Junker

No abstract provided.

Green Building Contracts: Considering The Roles Of Consequential Damages & Limitation Of Liability Provisions, Darren Prum, Stephen Del Percio

Darren A. Prum

The green building market continues to grow, but so do the corresponding legal risks which are only now being explored by scholars and practitioners. Lurking in the shadows behind any green building risk management strategy is how consequential damages - damages which may flow from a party's breach of a design, construction, or consulting contract - should be allocated among project stakeholders. This allocation is particularly critical on green building projects, whose unique and novel nature can create an increased potential for consequential damages. For example, green building tax credits, premium rents, and even energy savings might fall within the …

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction” — statutory construction that ignores legislation underlying goals. It constructs a new democratic theory for purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals …

Implications Of The Copenhagen Accord For Global Climate Governance, David B. Hunter

Sustainable Development Law & Policy

Climate advocates are increasingly raising specific climate change concerns before domestic courts, human rights tribunals, international commissions and other national and international decisionmaking bodies. Win or lose, these litigation strategies are significantly changing and enhancing the public dialogue around climate change. This article discusses the awareness-building impacts of climate litigation as well as related impacts such strategies may have on the development of climate law and policy. The article argues that litigation's focus on specific victims facing immediate threats from climate change has increased the political will to address climate change both internationally and nationally. It has also shifted the …

Moving Global Health Law Upstream: A Critical Appraisal Of Global Health Law As A Tool For Health Adaptation To Climate Change, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

The relatively new discipline of global health law is a potentially powerful tool for promoting health adaptation to climate change. Unfortunately, global climate change will intensify exactly those health threats that have not been adequately addressed by multilateral cooperation with respect to health in the past, which has been dominated by security-based and treatment-focused approaches. Recent focus on biosecurity concerns such as the global spread of emerging infectious diseases and biological terrorism has further entrenched a security-based approach to global health law and policy that has origins in the earliest attempts at international health cooperation and is currently embodied in …

Environmental Law, Travis M. Trimble

Scholarly Works

In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency’s adoption of the “unitary waters” definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency’s rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh

Circuit upheld …

Navigating Tricky Ethical Shoals In Environmental Law: Parameters Of Counseling And Managing Clients, Kim Diana Connolly

Journal Articles

This article explores some of the ethical situations that environmental and natural resource lawyers can encounter when counseling clients. It begins by exploring the Model Rule of Professional Conduct (MRPC) 2.1, regarding counsel’s role as “advisor,” which provides that appropriate client counseling refers not only to law, but also to moral, economic, social, and political factors, when making decisions. It also explores the environmental lawyer’s ability to withdraw from representation pursuant to MRPC 1.16. It places the obligations and options under these rules and other mandates in the environmental and natural resource context, and encourages attorneys practicing in the area …