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Articles 1 - 30 of 55
Full-Text Articles in Law
New Directions In Environmental Justice, Randall S. Abate, Moderator, Robert Abrams, Moderator, Marcia Allen Owens, Moderator
New Directions In Environmental Justice, Randall S. Abate, Moderator, Robert Abrams, Moderator, Marcia Allen Owens, Moderator
Lectures and Presentations
The inaugural Environmental Law and Justice Symposium will feature an overview of the latest international, national, regional, state and local developments in environmental justice.
Brazil's Launch Of Lender Environmental Liability As A Tool To Manage Environmental Impacts, Bianca Zambão
Brazil's Launch Of Lender Environmental Liability As A Tool To Manage Environmental Impacts, Bianca Zambão
University of Miami International and Comparative Law Review
Due to an emerging Brazilian doctrine of environmental liability, lenders now face the prospect of lawsuits that seek remediation of, or compensation for, environmental damages resulting from their borrowers' activities. Unprecedented judicial decisions (based on a strict, joint and several environmental liability for lenders) broad standing, and ongoing initiatives of the government portray financial institutions as the best target to pursue environmental protection in the country. That scenario, however, may represent a detour from the imperative improving the functionality of the public administration. This article examines how legal actors are shaping Brazil's environmental law enforcement and the extent to which …
Developing An Ecological Social Justice Framework For Ocean Energy Technologies: Case Studies From The Phillipines, Jay Batongbacal
Developing An Ecological Social Justice Framework For Ocean Energy Technologies: Case Studies From The Phillipines, Jay Batongbacal
PhD Dissertations
Unless subjected to skeptical and conscious scrutiny, environmentally-friendly ocean energy technologies can become Trojan machines of social inequity due to the subtle re-organizing influences of technologies on culture and the society. Environmental laws that promote or regulate ocean energy technologies can act as Trojan legal regimes in the absence of a framework for assessing and anticipating their adverse impacts on social justice. Environmental justice is inadequate for this task, so an alternative framework is proposed: ecological social justice, drawn from the Third Worlds perspective of sustainable development as equitable sharing. Though overshadowed by the prevalent notion of sustainable development as …
Piecemeal Legislative Proposals: An Inappropriate Approach To Managing Offshore Oil Drilling, Lynn S. Sletto
Piecemeal Legislative Proposals: An Inappropriate Approach To Managing Offshore Oil Drilling, Lynn S. Sletto
Golden Gate University Law Review
The election of George W. Bush in 2000 as the forty-fourth President of the United States, a perceived pro offshore oil-drilling President), was followed by several legislative proposals aimed at limiting or ceasing oil drilling off the coast of most of the states. This comment discusses why these legislative proposals are unworkable in light of the nation's goals for managing offshore oil drilling. Nonetheless, many of these legislative proposals highlight the coastal state's specific concerns, as well as, improvements to the offshore oil leasing decision-making process to alleviate those concerns.
Erroneous And Unauthorized Revisions To The California Environmental Quality Act: 1998 Ceqa Revisions Violate Legislative Intent And Contradict Judicial Holdings, Kristin Henry
Golden Gate University Law Review
This Comment will summarize the CEQA review process to which California agencies must adhere. Next, Part III of this Comment will examine San Joaquin Raptor/Wildlife Rescue v. Stanislaus and Kings County Farm Bureau v. Hanford, two landmark California appellate court cases that have interpreted the CEQA review process prior to the amended regulations. Included in Part III A is an analysis of how lead agencies have treated cumulative impacts in the past during the CEQA review process and an explanation of the recent amendments purporting to codify that interpretation. In Part III B, this Comment will explain the recent amendments …
Environmental Justice Enforcement Requires Reassessment Under The Equal Protection Clause, Title Vi Of The Civil Rights Act, And Environmental Statutes, Kenneth Owen
Golden Gate University Law Review
This article will suggest what is required to prevail under the purposeful discrimination standard under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Interestingly, no equal protection environmental justice case or Title VI action has been presented to a jury charged with determining the factual issue of intent. The author will next explore the possibility of winning environmental justice cases under the citizen suit provisions that are part of most environmental statutes. Lastly, the author will suggest arguments to possible defenses that might be raised by defendants.
Environmental Law - Resource Investments, Inc. V. U.S. Army Corps Of Engineers, Marcelin E. Keever
Environmental Law - Resource Investments, Inc. V. U.S. Army Corps Of Engineers, Marcelin E. Keever
Golden Gate University Law Review
In Resource Investments Inc. v. United States Army Corps of Engineers, the United States Court of Appeals for the Ninth Circuit considered whether section 404 of the Clean Water Act (CWA) authorized the United States Army Corps of Engineers (Corps) to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfIll on a wetlands site. The Court held that when a proposed project affecting a wetlands area is a solid waste landfill, the Environmental Protection Agency (EPA), rather than the Corps, will have permit authority under the Resource Conservation and …
Environmental Law - Northcoast Environmental Center V. Glickman, Lisa Braly
Environmental Law - Northcoast Environmental Center V. Glickman, Lisa Braly
Golden Gate University Law Review
In Northcoast Environmental Center v. Glickman, the United States Court of Appeals for the Ninth Circuit held that a less deferential standard of "reasonableness" applied to its review of legal questions that determined the applicability of the National Environmental Policy Act (NEPA,). Thus, when no facts are in dispute, an agency's decision not to prepare an Environmental Impact Statement (EIS)"will be upheld unless it is unreasonable. When facts are in dispute, however, the Supreme Court decision of Marsh v. Oregon Natural Resources Council, which applied an "arbitrary and capricious" standard of review, controls. The Ninth Circuit also decided that district …
Environmental Law - City Of Auburn V. U.S. Government, Lisa Braly
Environmental Law - City Of Auburn V. U.S. Government, Lisa Braly
Golden Gate University Law Review
In City of Auburn v. U.S. Government; the United States Court of Appeals for the Ninth Circuit held that the plain language of the Interstate Commerce Commission Termination Act (lCCTA) preempts state and local permitting laws regarding railroad operations. The court reasoned that since the ICCTA gave the Surface Transportation Board (Board), a federal agency, exclusive jurisdiction over certain railroad matters, railroad companies were required to follow only federal permitting laws, not those of a state or city. Thus, Burlington Northern Railroad is not subject to the environmental permitting laws of the city of Auburn. The court also held that …
A Deeper Shade Of Green: The Evolution Of Cuban Environmental Law And Policy, Fredric Evenson
A Deeper Shade Of Green: The Evolution Of Cuban Environmental Law And Policy, Fredric Evenson
Golden Gate University Law Review
This article provides a brief history and general overview of Cuba's environmental legal system describing the contemporary framework of environmental laws, and the governmental and non-governmental institutions responsible for its creation, implementation, and enforcement. To illustrate how Cuba's environmental regulatory scheme is designed 'to operate, focus is directed on environmental requirements of foreign investment projects and the related fields of environmental licensing, environmental impact assessment, state environmental inspection, and civil responsibility. This article concludes that Cuba's new framework environmental law and revised institutional structure are significant expressions of the government's desire to protect the environment. The recent changes in these …
Too Late In The Game: How Ballot Measures Undercut Ceqa, Jon Rainwater, Susan Stephenson
Too Late In The Game: How Ballot Measures Undercut Ceqa, Jon Rainwater, Susan Stephenson
Golden Gate University Law Review
Because the regulatory guidelines for the California Environmental Quality Act ("CEQA") contain an exemption for "the submittal of proposals to a vote of the people," both projects avoided environmental analysis after the board of supervisors and the electorate had given a green light for the projects. In this article, we will examine the possibility that the ballot measure exemption functions as a loophole that weakens the goal of early meaningful, analysis that is at the heart of CEQA. To. put the exemption in a specific environmental and political context, we will look at some of the environmental impacts of the …
Environmental Law - Mccarthy V. Thomas: Are States Bound When Approval Of An Sip Is Merely Conditional?, Edward P. Murphy
Environmental Law - Mccarthy V. Thomas: Are States Bound When Approval Of An Sip Is Merely Conditional?, Edward P. Murphy
Golden Gate University Law Review
In McCarthy v. Thomas, the Ninth Circuit held that the Clean Air Act (hereinafter "CAA") authorizes the Environmental Protection Agency (hereinafter "EPA") to conditionally approve a State Implementation Plan (hereinafter "SIP"), thereby binding the states even if later EPA actions do not specifically reference the earlier conditionally approved provisions. In McCarthy, the SIP which included transportation measures for Pima and Maricopa Counties in Arizona, had never been fully approved by the EPA, but had received a conditional approval. Since Arizona had difficulty complying with the CAA, the SIP was revised several times before the EPA granted full approval. The final …
Environmental Law, M. Lynn Haggerty, Cherie P. Shanteau
Environmental Law, M. Lynn Haggerty, Cherie P. Shanteau
Golden Gate University Law Review
No abstract provided.
The Development Of Environmental Governance Regimes: A Chinese-Inspired Reconstruction, Roda Mushkat
The Development Of Environmental Governance Regimes: A Chinese-Inspired Reconstruction, Roda Mushkat
Washington and Lee Journal of Energy, Climate, and the Environment
The challenge of protecting the biosphere has both salient academic and policy dimensions. On the academic side, persistent efforts have been made in the field of socio-legal studies to enhance the understanding of the complex processes involved, in the domestic arena and on the international front, in the formation and transformation of the elaborate institutional arrangements designed to contribute to this goal. The scholars engaged in those efforts have pursued divergent paths, but one school of thought has moved decisively to the forefront. China’s experience does not cast doubt on its relevance, or even prominence, yet it suggests that multi-pronged …
A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn
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 …
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power
Garrett Power
This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …
Re-Examining Acts Of God, Jill M. Fraley
Re-Examining Acts Of God, Jill M. Fraley
Scholarly Articles
For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …
Brief Of Amici Curiae Dinah Bear, Robert Glicksman, Oliver Houck, Daniel Mandelker, Thomas Mcgarity, Robert Percival, Zygmunt Plater, Nicholas Robinson, And Gary Widman In Support Of Respondents, Monsanto Co. V. Geertson Seed Farms, No. 09-475 (U.S. Apr. 5, 2010), Hope M. Babcock
U.S. Supreme Court Briefs
No abstract provided.
The Conflicting Concerns Of The Automatic Stay And Environmental Laws, Brett T. Bradford
The Conflicting Concerns Of The Automatic Stay And Environmental Laws, Brett T. Bradford
Brett T. Bradford
This paper explores the conflict between the automatic stay in bankruptcy law and environmental laws regarding cleaning up pollution. It is shown that the two areas of law have fundamentally different purposes that work to disrupt the bankruptcy process. The purpose of the automatic stay is seriously disrupted by the government imposing clean up costs on the debtor while in bankruptcy. This paper shows the affects of the two conflicting areas of law and possible solutions to the problem.
Enabling Investments In Environmental Sustainability, Heather Hughes
Enabling Investments In Environmental Sustainability, Heather Hughes
Indiana Law Journal
No abstract provided.
Corn, Carbon, And Conservation: Rethinking U.S. Agricultural Policy In A Changing Global Environment, Mary Jane Angelo
Corn, Carbon, And Conservation: Rethinking U.S. Agricultural Policy In A Changing Global Environment, Mary Jane Angelo
UF Law Faculty Publications
This Article explores a range of issues related to both the regulatory and incentive-based federal programs that affect the crops we grow, the manner in which they are grown, and the human and environmental impacts of such programs. The Article evaluates the 2008 Farm Bill and describes how the policies contained in it influence virtually every aspect of agriculture, from the decision to grow certain crops, the amount of crops grown, the industrial manner. This Article focuses on one particular commodity, corn, which while ubiquitous and seemingly pedestrian, is perhaps one of the major environmental offenders, and for which the …
Cases And Materials On Environmental Law 2nd Edition, Oscar Gray
Cases And Materials On Environmental Law 2nd Edition, Oscar Gray
Oscar S. Gray
No abstract provided.
Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano
Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano
Law Student Publications
This comment explores the Cape Wind project with an emphasis on its role as the first United States offshore wind energy project. Part II of this comment explains the potential energy resource that offshore wind provides and examines some of the economic, technological, and regulatory challenges facing the development of offshore wind projects in United States waters. Part III of this comment introduces the Cape Wind project as a case study by briefly describing the particular political struggles and permitting challenges faced by its developers. Part IV of this comment analyzes how DOI approval and the eventual construction of Cape …
Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank
Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank
Faculty Articles and Other Publications
In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by …
An Environmental Competition Statute, David M. Driesen
An Environmental Competition Statute, David M. Driesen
San Diego Journal of Climate & Energy Law
The next generation of environmental law should use economic incentives to creatively stimulate innovation in environmental technology. This Article proposes an environmental competition statute as a means of stimulating movement toward a more sustainable future. Such a statute would authorize those who achieve low emissions to collect the cost of achieving low emissions plus a premium from competitors with higher emissions.
This Article briefly explains the value of using this mechanism. It then canvasses the problems with the first and second generation of environmental law that an environmental competition statute can help us overcome. A detailed description of an environmental …
The Effects Of Brazilian Agricultural Property Policies And International Pressures On The Soybean Industry: Incentives For Amazon Deforestation And How It May Be Reduced, Tyler E. Hazen
San Diego Journal of Climate & Energy Law
This Article begins in Part II with an overview of the Amazonian environment and the rise of soybeans as a lucrative export product. Part III discusses how Brazilian property law and land use culture has facilitated transformation of land for cultivation and ultimately, deforestation. Part IV discusses international reaction to Brazil’s sovereignty over the Amazon, including European import practices such as protectionism, desire for hormone-free products, as well as market incentives for soy raised on land that was not deforested. Finally, Part V offers solutions for working within the current system, aggressively supporting the policies against deforestation while respecting the …
Looking Back To Move Forward: Revisiting The Btu In Evaluating Current Policy Alternatives, Walter Wang
Looking Back To Move Forward: Revisiting The Btu In Evaluating Current Policy Alternatives, Walter Wang
San Diego Journal of Climate & Energy Law
To evaluate the current policy alternatives, it is necessary to take a step back and revisit the Btu tax proposed by the Clinton Administration. Although seventeen years have passed since the Btu tax was proposed, and the U.S. is at war in theaters that are much different from those in which it was involved during the Clinton Administration, the landscape of the climate change debate has not changed dramatically. The lessons learned from the policies espoused by the Btu tax proposal may be critical in determining how to best approach climate change legislation today.
Enforcing Cap-And-Trade: A Tale Of Two Programs, Lesley K. Mcallister
Enforcing Cap-And-Trade: A Tale Of Two Programs, Lesley K. Mcallister
San Diego Journal of Climate & Energy Law
This Article uses the histories of the ARP and RECLAIM to show that even when monitoring and enforcement provisions for cap-and-trade programs are designed in a similar way, the resulting enforcement systems and enforcement outcomes may be very different. Part I of the Article tells the enforcement story of the ARP. It appears to be a story of regulatory efficiency and success. Part II tells the enforcement story of RECLAIM. While not a failure, RECLAIM enforcement seems to have been full of difficulties that necessitated large amounts of administrative time and resources. This part presents the results of an empirical …
Climate Change Law In And Over Time, Richard J. Lazarus
Climate Change Law In And Over Time, Richard J. Lazarus
San Diego Journal of Climate & Energy Law
The critical lesson for climate change legislation is that the pending lawmaking moment must include the enactment of provisions specifically designed to maintain the legislation’s ability to achieve its long-term objectives over the longer term. For climate change legislation to be successful, the new legal framework must simultaneously be flexible in certain respects and steadfast in others. Flexibility is necessary to allow for the modification of legal requirements over time in light of new information. Steadfastness or “stickiness” is important to maintain the stability of a law’s requirements over time. The need for both is particularly great for climate change …
Adapting To Climate Change With Law That Bends Without Breaking, Holly Doremus
Adapting To Climate Change With Law That Bends Without Breaking, Holly Doremus
San Diego Journal of Climate & Energy Law
Climate change, the key environmental challenge of this century, is a tough problem for law in many ways. The topic of this panel, instrument choice, highlights a particularly difficult, important, and under-recognized aspect of the climate change challenge: the difficulty of devising a system of environmental law that combines the flexibility necessary to deal with a changing world with the rigidity and accountability essential to hold us to the difficult task of environmental protection.