Law Commons^™

Of Solemn Oaths And Obligations: The Environmental Impact Of The Icj’S Decision In The Case Of The Gabcikovo-Nagymaros Project, Stephen Stec, Gabriel Eckstein

Faculty Scholarship

Chapter Extract:

The law of treaties often conjures up images of states as rotund gentlemen with whiskers, vests, and watch-chains proclaiming solemn and chivalric oaths upon their honour. Treaties are sacred in the same way that a man's word is his bond. This type of relationship among states is largely unquestioned since much of the way we live in the world depends upon the assumption of the inviolability of sovereign states and their treaties. Any challenge to these assumptions would surely evoke horror at the unmentionable void that would result-except in lawyers who make their livings shaving nuances. However, in …

The Tale Of A Tail, James F. Hogg

Faculty Scholarship

The commercial general liability insurance industry shifted, in 1986, from the use of an “occurrence-based” to a “claims-made” policy form. So-called “tail” or “long tail” claims have continued nevertheless, to be asserted under the older “occurrence” policies which required that injury occur during the term of the policy, but not that the claim for such injury be made or brought at any particular time. In seeking state approval to use the new “claims-made” form in 1985-86, the insurance industry represented that the new form would not affect coverage under the old “occurrence” form. Despite that representation, insurers are now asserting, …

Recommendations For An Environmentally Sound Federal Policy On Western Water, Reed D. Benson

Faculty Scholarship

The organizations and individuals who have produced this report have worked for years to promote environmentally sound federal policy and action with respect to water in the American West. The Western Water Policy Review Advisory Commission's (the "Commission") evaluation of these issues presents an excellent opportunity to address long-standing concerns. We believe the Commission can help advance federal policy to promote sustainable use, management and protection of western waters. We begin with a brief look at current water problems in the West from our perspective. We then identify four general priorities for the federal government: taking steps toward restoring more …

The Environmental Justice Misfit: Public Participation And The Paradigm Paradox, Eileen Gauna

Faculty Scholarship

This Article argues that current administrative processes fail to effectively incorporate an important form of public participation in decision-making -- the participation by communities bearing the greatest environmental risks. This Article advocates an "environmental justice style" public participation model as a more promising approach because it calls for a recasting of the role of community participation in environmental decision-making -- a recasting which transcends traditional, modern, and proposed decision-making paradigms.Part II of this Article provides a brief history of the environmental justice movement. Part III addresses the role of the public under three models of administrative policy and decision-making: the …

Reinventing Environmental Regulation Via The Government Performance And Results Act: Where's The Money?, Rena I. Steinzor, William F. Piermattei

Faculty Scholarship

No abstract provided.

Reinventing Environmental Regulation: Back To The Past By Way Of The Future, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

The Legislation Of Unintended Consequences, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

The Goals Of Environmental Enforcement And The Range Of Enforcement Methods In Israel And In The United States, Marcia R. Gelpe

Faculty Scholarship

The article examines enforcement of the environmental laws of Israel and of the United States. It concentrates on provisions for enforcement of the laws by government authorities--that is, either by administrative authorities or by the courts at the request of an administrative authority. Environmental laws in many jurisdictions may also be enforced by private actions. These private enforcement actions are not addressed specifically in this article, although much of what is said is also applicable to such actions.

Justice From The Ground Up: Distributive Inequities, Grassroots Resistance, And The Transformative Politics Of The Environmental Justice Movement, Sheila R. Foster

Faculty Scholarship

In this Article, Professor Foster examines the environmental justice movement from the "ground up"-from the perspective of the predominantly poor, African-American residents of Chester, Pennsylvania who attempted to stop the clustering of waste facilities in their community. From this perspective, Professor Foster evaluates the manner in which the phenomenon of environmental injustice is framed, the efficacy of reforms in environmental decision-making processes, and the strategies and possibilities of grass roots efforts in achieving environmental justice. She argues that the distributive paradigm that often frames discussions of environmental injustice obscures the mechanisms and processes underlying inequitable outcomes, thwarting a full understanding …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

Maintaining The Status Quo: Protecting Established Water Uses In The Pacific Northwest, Despite The Rules Of Prior Appropriation, Reed D. Benson

Faculty Scholarship

Water law in the Northwest states has long been based on the well-established rules of the Prior Appropriation Doctrine. In recent years, however, the four Northwest states often have not applied these rules against existing water users. State legislatures, courts, and water resource agencies have routinely changed the rules, or refused to implement them, if doing so might curtail current uses. This Article examines the ways in which the Northwest states have maintained the water use status quo despite the traditional rules. The Article then evaluates the economic and environmental implications of state efforts to protect existing water uses, and …

Emerging Statutory And Constitutional Tools For States To Resist Federal Environmental Regulation, Michael B. Gerrard

Faculty Scholarship

This is a time of high tensions between the federal government and the states over environmental regulation. The flashpoints include actions by the U.S. Environmental Protection Agency (EPA) against states that enact laws shielding environmental audit reports from discovery; the withdrawal of several states from certain regulatory reform programs and delegated programs; and EPA accusations that some states are ignoring many violations of the pollution control laws, and loud denials by state representatives.

The Supremacy Clause of the U.S. Constitution and the complex of federal environmental statutes enacted in the 1970s and 1980s still give Washington the upper hand in …

New York State's Brownfields Programs: More And Less Than Meets The Eye, Michael B. Gerrard

Faculty Scholarship

New York, as the nation's second most populous state, and one of its oldest and most urban, has an abundance of brownfields-slightly contaminated properties that were formerly used for industrial purposes, but that are now unused or underused, and ripe for redevelopment if they can be cleaned up. Thus, it may be surprising that New York is one of the few states without a comprehensive statute or regulation for the voluntary cleanup of brownfields.

There is, however, more here than meets the eye. New York has three important programs and several smaller ones that provide procedures, money, or incentives for …

Autonomy Through Separation?: Environmental Law And The Basic Law Of Hong Kong, Benjamin L. Liebman

Faculty Scholarship

One hundred days after taking office as Chief Executive of the Hong Kong Special Administrative Region (Hong Kong SAR) of the People's Republic of China, Tung Chee-hwa pledged both to take steps to improve Hong Kong's environment, and to increase coordination of environmental policy with officials in neighboring Guangdong Province. Tung's comments marked a rhetorical shift from environmental policy in British Hong Kong: eight years earlier, the Hong Kong government's first White Paper on environmental policy, Pollution in Hong Kong – A Time to Act, made only passing mention of China. Yet the White Paper was not alone in …

Judicial Review Of Discount Rates Used In Regulatory Cost-Benefit Analysis, Edward R. Morrison

Faculty Scholarship

Executive orders, statutes, and precedent increasingly require cost-benefit analysis of regulations. Presidential executive orders have long required executive agencies to submit regulatory impact analyses to the Office of Management and Budget ("OMB") before issuing regulations, and recent federal legislation exhibits a trend toward mandatory cost-benefit analysis. For example, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the recent Safe Drinking Water Act Amendments require the Environmental Protection Agency to balance costs and benefits in regulating chemicals and pesticides. In 1995, Congress passed the Unfunded Mandates Act, requiring cost-benefit analysis of all significant federal regulations that …

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …