Law Commons^™

Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival

Robert Percival

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the …

Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth

David A. Wirth

The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they …

A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater

Zygmunt J.B. Plater

From the introduction: For most if not all public interest issues in contemporary governance debates, there are in effect four branches of government, not three. For better or worse, the modern media constitute the essential public information source playing a determinative role in the intensely political internal processes of modern government at every level. To ignore the fundamental reality of this Fourth Estate 1 is not to fully understand modern civics and is to risk repeated shortfalls for citizen initiatives attempting to advance public welfare. In no other field is this proposition more evident than in the realm of governmental …

Cjeu, Can You Hear Me? Access To Justice In Environmental Matters, Sanja Bogojevic

Sanja Bogojević

Over the years, much ink has been spilled in the debate on standing of NGOs before the EU courts. This issue has been the object of particular consideration following the ruling in the Greenpeace case where the General Court denied the NGO in question standing on the basis that it did not ‘adduce any special circumstances to demonstrate the individual interest of their members’. Considering that environmental NGOs tend to represent the interests of society as a whole, or that of the environment in particular, imposing this kind of conditioning seems unreasonable. Indeed, this judgment, coupled with the more general …

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Robert Percival

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …

Costa Rica And Nicaragua Before The International Court Of Justice – Trying To Work Out The Complicated Relationship Between Law And The Environment, Britta Sjöstedt

Britta Sjöstedt

Nicaragua and Costa Rica have twice turned to the International Court of Justice (ICJ) to resolve disputes related to environmental damage occurring in a transboundary context. In these two cases the Court has to consider at least two issues. The first issue concerns the territorial status of a disputed border area. The disagreement is triggered by natural variations of the San Juan River at the border between the two countries, which causes confusion as to where the State line lies. The second issue concerns environmental damage; more specifically, it involves adversely affected wetlands protected under the Ramsar Convention. The obligations …

Introducing The ‘Reconciliatory Approach’ – Harmonizing International Environmental Law With Other Specialised Areas Of International Law, Britta Sjöstedt

Britta Sjöstedt

In this paper, I argue that international environmental treaties can interact with other specialised areas of law applicable to the same subject matter in the same context by using the ‘reconciliatory approach’ (RA). This approach entails that the institutions established under the environmental treaties are empowered to develop the treaty provisions in a manner that may also take other legal areas into account and thereby be able to reconcile obligations of other specialised legal areas. The RA functions on the premise that international law is one system with the inherent ambition to coherently systematize its norms. By looking at the …

What We Can Predict And Affect, Jill Fraley

Jill M. Fraley

No abstract provided.

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell

Mary Ellen O'Connell

Professor O'Connell discusses the traditional methods used for international law "enforcement," and she argues that international law is generally obeyed. Its enforcement is based primarily on compliance, not enforcement. Accordingly, the author argues against using international enforcement mechanisms to enforce international environmental law. Instead, she posits that domestic courts should be used for international environmental law enforcement; however, certain obstacles, such as sovereign immunity, the doctrine of standing, and the principle of forum non conveniens, must be overcome. Professor O'Connell argues that it may be possible to overcome many of these court-made obstacles to enforcing international law through domestic courts. …

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …

How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber

Bruce R Huber

Among the major emissions trading schemes in operation around the world, the Regional Greenhouse Gas Initiative (RGGI) stands alone: this CO₂ cap-and-trade program among nine northeastern states is the only such scheme to rely primarily on auctions to distribute emissions allowances. The standard practice - distributing allowances for free on the basis of historical emissions - elicits begrudging but politically crucial support from some regulated emitters. Like carbon taxation, allowance auctioning has long been considered economically superior to its alternatives but politically infeasible.

How did the RGGI states manage to defy conventional wisdom and institute a program so reliant …

Transition Policy In Environmental Law, Bruce R. Huber

Bruce R Huber

Embedded within the structure of much American environmental regulation is a distinction between the new and the existing. This distinction reflects a recurrent political challenge for environmental policymakers: whether and how to mitigate regulatory burdens when policy change upsets settled expectations and investment commitments. Environmental law often grandfathers existing products and pollution sources or provides them with other kinds of transition relief. This paper presents a survey of transition policies in environmental regulation, which is followed by a pair of short case studies drawn from the trucking and pesticide industries. These examples demonstrate that the form and extent of transition …

Human Rights And Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin

Gabriel Eckstein

No abstract provided.

International Law In A Time Of Scarcity, Ertharin Cousin, Rebecca H. White, C. Donald Johnson, Lincoln Davies, José Cuesta, Barbara Deutsch Lynch, Harlan G. Cohen, Gabriel Eckstein, Lillian Aponte Miranda, Kristen E. Boon, Peter A. Appel, Anastasia Telesetsky, Aparna Polavarapu, Felix Mormann, Diane Marie Amann, Katie Croghan

Gabriel Eckstein

On February 5th, 2013 the Dean Rusk Center and the Georgia Journal for International and Comparative Law hosted a daylong conference on “International Law in a Time of Scarcity.” The scarcity of resources, whether food, water, fuel sources, or clean air, may be a defining reality for global policy in the years to come. By bringing together leading policy makers and legal scholars, conference organizers created a forum to serve as a foundation for future scholarship on the role of international law in scarcity issues. The keynote speaker was Ertharin Cousin, United Nations World Food Programme executive director and 1982 …

Why Chinese Wildlife Disappears As Cites Spreads, John C. Nagle

John Copeland Nagle

No abstract provided.

Endangered Species Wannabees, John Copeland Nagle

John Copeland Nagle

No abstract provided.

See The Mojave!, John C. Nagle

John Copeland Nagle

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

Green Harms Of Green Projects, John C. Nagle

John Copeland Nagle

This article describes the recent development of renewable energy to examine environmental law’s three contrasting approaches to the green harms of green projects. Sometimes the law allows the green benefit regardless of the green harm. Sometimes the law prohibits the green harm regardless of the green benefit. And sometimes the law allows a balancing of all of the harms and benefits, green or not. Given these options, I argue that the law should not ignore or understate green harms even if they are caused by green projects. There are some types of green harms that no benefit can justify. But …

The Evangelical Debate Over Climate Change, John Copeland Nagle

John Copeland Nagle

No abstract provided.

Cercla, Causation, And Responsibility, John C. Nagle

John Copeland Nagle

No abstract provided.

The Spiritual Values Of Wilderness, John C. Nagle

John Copeland Nagle

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the …

The Missing Chinese Environmental Law Statutory Interpretation Cases, John C. Nagle

John Copeland Nagle

No abstract provided.

How Much Should China Pollute?, John C. Nagle

John Copeland Nagle

The debate concerning how much China should pollute is at the heart of international negotiations regarding climate change and environmental protection more generally. China is the world’s leading polluter and leading emitter of greenhouse gases. It insists that it has a right to emit as much as it wants in the future. China interprets the principle of “common but differentiated responsibilities” to mean that China has a responsibility to help avoid the harmful consequences associated with climate change, but that its responsibility is different from that imposed on the United States and the rest of the developed world. In fact, …

The Effectiveness Of Biodiversity Law, John C. Nagle

John Copeland Nagle

The Endangered Species Act (ESA) has generated a heated debate between those who believe that the law has succeeded and those who believe that the law has failed. The resolution to that debate depends upon whether the law’s stated purposes or some other criteria provide the basis for judging a law’s effectiveness. Meanwhile, since the enactment of the ESA in 1973, biodiversity protection has received growing attention in the nations of southeastern Asia. So far, the law has been much less effective in protecting Asian biodiversity from habitat loss, commercial exploitation, and other threats, yet southeastern Asia’s biodiversity law has …

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John C. Nagle

John Copeland Nagle

Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital …

An Economic Approach To Collective Rights And Their Means Of Supply: The Case Of Right To "The Enjoyment Of A Healthy Environment" And The Right To "Rational Management And Use Of Natural Resources" [En Español], Daniel A. Monroy

Daniel A Monroy C

This paper has two main objectives (i) Demonstrate that the defining characteristic of collective rights related to non-excludable of the benefits derived from the "means" of supply and the material "objects" of rights, is consistent with the microeconomic defining characteristic of so-called "public goods" and "commons " (together we call these as non-excludable resources). On the other hand, (ii) Demonstrate that when we analyze the collective rights as non-excludable resources this aims important omitted challenges by traditional legal doctrine related with the adequate supply of collective rights, this happens because the problems of the -Olsonian- logic of collective action. For …

Lead Poisoning In Children: A Proposed Legislative Solution To Municipal Liability For Furnishing Lead-Contaminated Water, Anthony J. Bellia

Anthony J. Bellia

Lead poisoning has become one of the most widespread and serious environmental diseases facing children in the United States. In response to the problem of childhood lead exposure, the Environmental Protection Agency (EPA) has promulgated expansive regulations to reduce drinking water lead levels. However, the regulations are not without significant gaps and shortfalls. Many improvements that the EPA requires need not be in place for years, and some households at risk of unsafe lead exposure receive no regulatory protection at all. One question that arises amidst these regulatory gaps is whether a plaintiff can hold a public water system liable …

Economic Thought And Climate Disruption: Neoclassical And Economic Dynamic Approaches In The Usa And The Eu, Sanja Bogojevic, David Driesen

Sanja Bogojević

In this article we consider the economic ideas that have influenced climate disruption law both in the USA and the EU. Although economic thought has led to the adoption of ‘market-based’ mechanisms in both places, its impact has been different: it created regulatory inertia in the USA, and green leadership in the EU—at least with respect to responding to climate disruption. We argue that different culture-specific economic conceptions about appropriate policy and policy analysis may help explain this divergence, thereby illustrating both various economic ideas and their distinct impact on climate law, as well as the need for environmental lawyers …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.