Law Commons^™

Feasibility Assessment Of Special Management Areas To Enhance Recreational Fisheries And Habitat, Savanna Barry, Thomas T. Ankersen, Edward Camp, Mark Clark, Lauren Griffiths, Micheal Allen

UF Law Faculty Publications

Nearshore recreational fisheries provide tremendous value to the Florida economy. These fisheries are dependent on the availability of high-quality habitat, and sound fisheries management. Habitat can be degraded by several factors, including damage to seagrass flats by propellers of power boats operating in shallow waters (prop scarring). The current fisheries management framework employs regulations limiting harvest by season, fish length, and bag limit (number of fish harvestable per angler per day). Regulations often vary due to regional differences in fishery stocks and population dynamics.

Our team’s overall goal in undertaking this work was to assess the feasibility of creating special …

Information As Power: Democratizing Environmental Data, Annie Brett

UF Law Faculty Publications

Environmental data systems have largely escaped scrutiny in the past decades. But these systems are the foundations for evaluating environmental priorities, making management decisions, and deciding which perspectives to value. Information is the foundation of effective regulation. The decisions regulators make about gathering, assimilating, and sharing information are, in many cases, determinative of the outcomes they reach. This is certainly true in the case of the environment.

This paper looks at how current environmental regulation has created data systems that undermine scientific legitimacy and systematically prevent stakeholder participation in environmental decision-making. These data systems concentrate power within federal and state …

Groundwater Exceptionalism: The Disconnect Between Law And Science, Christine A. Klein

UF Law Faculty Publications

Most judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and …

Example Ordinance For Compost Amending Soil In Urban Landscaping, Jovana Radovanovic, James D. Mcguire, Jana Caracciolo

UF Law Faculty Publications

Urban landscapes are commonly installed on a final grade consisting of fill material brought on-site during construction to elevate the land surface. This material is typically inert, lacking organic matter and nutrients, and becomes compacted during the construction process. UF/IFAS research and other studies have shown that incorporating compost into these soil conditions can increase water retention in the root zone and decrease the need for supplemental irrigation for turfgrass. As a result of this benefit, local governments may consider requiring amending of new landscapes. This publication describes an example ordinance that can be used by local governments as a …

Integrated Estuary Governance, Mary Jane Angelo, J.W. Glass

UF Law Faculty Publications

Estuaries are complex, dynamic ecosystems that play a critical role in supporting crucial economic industries, such as commercial fishing and tourism, and providing the resources necessary to sustain coastal communities. A range of anthropogenic environmental stressors are threatening the health of estuaries throughout the world. Traditional top-down single resource focused environmental regulatory approaches have proved inadequate to protect and restore estuarine systems. In recent years, scientific and legal academics, as well as policymakers, have called for more holistic participatory approaches to addressing environmental challenges. Drawing on the literature on ecosystem management, integrated water resources management, collaborative governance, and adaptive management, …

Check State: Avoiding Preemption By Using Incentives, Michael Allan Wolf

UF Law Faculty Publications

No abstract provided.

Integrative Environmental Law: A Prescription For Law In The Time Of Climate Change, Alyson C. Flournoy

UF Law Faculty Publications

As the magnitude of the threat posed by climate change has become increasingly apparent, scholars and practitioners have begun a dialogue about how to reform environmental law to meet the challenge. Concepts like adaptive management, sustainability, and resilience have emerged in succession, as policy makers and scholars search for new moorings for our ethical and legal framework. While useful, these concepts have failed to provide a vision, goal, or solid ethical grounding for environmental law in the era of climate change. This project takes a new approach by exploring what we can learn from the field of Integrative Medicine. The …

Transboundary Waters, Annie Brett

UF Law Faculty Publications

In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of …

Artificial Intelligence And Climate Change, Amy L. Stein

UF Law Faculty Publications

As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and likelihoods. In short, its most promising applications may come, not from uses affecting civil liberties and the social fabric of our society, but from those particularly complex technical problems lying beyond our ready human capacity. Climate change is one such complex problem, requiring fundamental changes …

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein

UF Law Faculty Publications

The National Flood Insurance Program (“NFIP”) of 1968 marked its fiftieth anniversary in 2018. Despite the program’s long history, few appreciate that the NFIP was never intended as a permanent federal subsidy for flood-prone properties along rivers and coastlines abandoned as commercially unviable by the private insurance industry. Instead, Congress provided flood insurance at below-cost rates as only an interim solution until state and local governments enacted permanent self-help land-use regulations that would restrict development in risky areas. By encouraging local governments to enact floodplain regulations, Congress intended to shift the costs of development in known flood areas back to …

Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo

UF Law Faculty Publications

The current morass of federal environmental laws has led to significant conflicts among statutes and the manner in which agencies implement them. In recent years, this quagmire of environmental laws has hindered the progress of a number of high-profile environmental regulatory programs and restoration projects. Neither the Courts nor legal scholars have developed approaches to resolving conflicts in a manner that harmonizes environmental statutes while at the same time protecting the most critical environmental resources. A standard methodology that optimizes the multiple objectives of environmental statutes and their implementing programs would greatly enhance decision-making and ensure that the most salient …

Relative Administrability, Conservatives, And Environmental Regulatory Reform, Blake Hudson

Florida Law Review

No abstract provided.

Policing Federal Supremacy: Preemption And Common Law Damage Claims As A Ceiling Regulatory Floor, Sam Kalen

Florida Law Review

This Article challenges conventional accounts of whether those who drafted the 1970 Clean Air Act intended to preempt state common law claims for nuisance. Neither those who advance robustly deploying the common law to arrest air emissions nor, conversely, those who claim that common law suits would disrupt the air regulatory program appreciate the dynamic that occurred when Congress confronted the Nation’s air pollution problem and crafted the first modern U.S. environmental laws. Yet that dynamic is essential to understanding the Clean Air Act’s “citizen suit” provision and Congress’s decision to preserve certain state common law claims. This Article explains …

Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee

UF Law Faculty Publications

Reducing the United States’ greenhouse gas emissions by at least 80% from 1990 levels by 2050 will require multiple legal pathways for changing its transportation fuel sources. The Deep Decarbonization Pathways Project (DDPP) authors characterize transforming the transportation system as part of a third pillar of fundamental changes required in the U.S. energy system: “fuel switching of end uses to electricity and other low-carbon supplies.” The goal is to shift 80%-95% of the miles driven from gasoline to energy sources like electricity and hydrogen. Relying upon the DDPP analysis, this Article, excerpted from Michael B. Gerrard & John C. Dernbach, …

Beach Law Cleanup: How Sea-Level Rise Has Eroded The Ambulatory Boundaries Legal Framework, Alyson C. Flournoy

UF Law Faculty Publications

As the sea level rises, the boundaries between privately owned coastal property and sovereign submerged lands held in public trust are becoming increasingly contested. The common law doctrines that determine these boundaries under conditions of change—primarily accretion, erosion, reliction, and avulsion—have important implications for all those involved in adaptation planning along our coasts. This includes private owners of coastal property, local government officials seeking to develop and implement adaptation strategies, beachgoers seeking to use shrinking beaches, beach-tourism-dependent businesses, and courts facing cases involving boundary disputes at the water’s moving edge. This paper raises the questions of whether and how the …

Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen

UF Law Faculty Publications

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. …

Ecosystem Services Valuation For Estuarine And Coastal Restoration In Florida, Susanna Blair, Carrie Adams, Thomas T. Ankersen, Maia Mcguire, David Kaplan

UF Law Faculty Publications

This study reviews the available ecosystem-service valuation literature for a number of Florida's coastal natural communities including oyster reefs, beach dunes, mangrove forests, seagrass beds, and salt marshes. We summarize the services provided by these five commonly restored natural communities in Florida and provide an analysis intended to support two main objectives: 1) to enumerate the range of ecosystem services provided by coastal natural communities as a way to educate stakeholders and support prioritization of habitat restoration; and 2) to inventory ecosystem measurements from the literature for each of the five natural communities and provide specific metrics for their measurement. …

A Dangerous Servant And A Fearful Master: Why Florida’S Prescribed Fire Statute Should Be Amended, Stephen Mccullers

Florida Law Review

Fire will not be denied its opportunity to burn through Florida’s forests. The citizens of Florida, however, can accept the responsibility of deciding how the forest will burn. Fire can be purposefully ignited under exact weather conditions, acting as a controlled but dangerous servant with a slim chance of escape or harm. Or, if Floridians refuse to accept any responsibility in proactively managing forest fire, nature will determine when the forest will burn. The fire will be a fearful master, raging through the forest with the potential to cause great harm to people, property, and the environment.

In recognition of …

Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown

UF Law Faculty Publications

This Article proposes a novel approach to addressing global climate change's impacts on agricultural production and food security. The climate change crisis is the most significant environmental issue facing our planet. The changes predicted to occur as the earth's climate warms include significant impacts to agriculture. At the same time that the planet is undergoing dramatic climatic changes, the global population is increasing, and economic development in many parts of the world is exerting increased demand for a greater and more diverse supply of food.

The relationship between climate change and agriculture is a close and complex one, as the …

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

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

UF Law Faculty Publications

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 …

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson C. Flournoy, Allison Fischman

UF Law Faculty Publications

This Article raises the question of how we should assess the potential threat to wetlands posed by the impacts of a changing climate and considers the role that section 404 of the Clean Water Act can play both in assessing and responding to that threat. Our inquiry is two-fold. First, should we be concerned about climate impacts on wetlands? And if so, how can section 404 help us to assess and respond to this threat?

Part I surveys the scientific literature on the projected impacts of climate change of particular relevance to wetlands and the impacts anticipated for particular types …

Strategies For Making Sea-Level Rise Adaptation Tools 'Takings-Proof', Michael Allan Wolf

UF Law Faculty Publications

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

UF Law Faculty Publications

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

Water Bankruptcy, Christine A. Klein

UF Law Faculty Publications

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as …

The Tipping Point Of Federalism, Amy L. Stein

UF Law Faculty Publications

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate the …

Preserving Legal Avenues For Climate Justice In Florida Post-American Electric Power, Allison Fishman

Florida Law Review

No abstract provided.

Adapting Laws For A Changing World: A Systemic Approach To Climate Change Adaptation, Victor B. Flatt

Florida Law Review

This Essay suggests that policy responses in climate change adaptation must be addressed and that focusing on adapting laws may be a good way to undertake this work. Following a review of existing scholarship and normative theories concerning law generally, environmental law, climate change, and adaptation, this Essay then proposes a template for approaching the adaptation of laws. This template would (1) examine where climate change puts pressure on the operation of laws; (2) seek to alter the implementation of that law or to alter the law itself to hew closely to the law’s original purposes; and (3) make these …

Critical Habitat And The Challenge Of Regulating Small Harms, Dave Owen

Florida Law Review

This Article investigates how the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, this Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification …