Law Commons^™

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Seeking Higher Ground: Developing A Tribal Model Code For Disaster And Emergency Management In A Complex Jurisdictional Environment, Brian Candelaria

American Indian Law Journal

“The teepee is much better to live in;

always clean, warm in winter, cool in summer; easy to move. The white man builds his big house, cost much money, like big cage, shut out sun, can never move; always sick. Indians and animals know better how to live than white man; nobody can be in good health if does not have all the time fresh air, sunshine, and good water.”

- Chief Flying Hawk[1]

In 2019, I opened my submission for the Sovereignty Symposium’s Doolin Award with the statement above. The entry was accepted and reprinted in the American …

Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg

American Indian Law Journal

“In order for law to have an influence in the lives of ordinary people, it must have something to do with the emotional feelings of justice, it must speak to our basic humanity, and it must give us common sense directions as to what behavior and beliefs are right and wrong"

Should Environmental Protection Be Through Anthropocentric Rights?, Christen Maccone

Pace Environmental Law Review

Environmental constitutional rights are increasingly used as a strategy to protect the environment, with more than seventy countries acknowledging environmental rights in their constitutions. However, constitutions are inherently anthropocentric, making environmental rights created therein of- ten inseparable from human rights. This paper will examine how environ- mental constitutional rights are insufficient due to the anthropocentric nature of constitutions and argue for the need for a more biocentric approach.

The Constitutional Public Trust In A Warming World, Sean Lyness

Pace Environmental Law Review

The public trust doctrine—a state-specific doctrine that entrusts certain natural resources to the state to hold for the public—most often exists as a common law doctrine. But a handful of states have constitutionalized their version of the public trust. A growing body of jurisprudential evidence shows the constitutional public trust in action—or not—against climate change. This Article examines these cases brought by governmental plaintiffs—states and local governments—investigating whether constitutionalizing the public trust has made a difference. Although the results are nascent, early signs suggest that a constitutional public trust can result in more comprehensive and aggressive law- suits when wielded …

Reading Between The Lines Of The Ira + Iija Power Gaps, Steven Ferrey

Pace Environmental Law Review

Two major pieces of legislation enacted during the Biden Administration – the 2021 Infrastructure Investment and Jobs Act (IIJA) and the 2022 Inflation Reduction Act (IRA) – devote hundreds of billions of dollars over the next decade to rapidly increase electrification throughout the United States. While this legislation provides substantial investment in infrastructure, it also demands action from different legal regulators. Renewable energy occupies a much larger land footprint than traditional electric power production. And land-use under the Tenth Amendment is within local and state, rather than federal, jurisdiction. To date, U.S. local land use regulation frustrates such national legislation. …

The Green Amendment: Assessing The Latest Tool In The Environmental Tool Belt, Carolyn Drell, Mia Petrucci

Pace Environmental Law Review

In the new edition of Maya K. van Rossum’s book, The Green Amendment: The People’s Fight for a Clean, Safe, and Healthy Environment, she presents the case for adopting green amendments protecting environmental rights into state constitutions and the Federal Constitution. This book review examines van Rossum’s arguments and raises legal concerns that prevent green amendments from providing a silver bullet solution to environmental harms. Despite these concerns that will likely resonate with practitioners, van Rossum increases the accessibility to the topic of green amendments for a wider audience, which is ultimately a net win for environmental advocacy.

Introduction, Samantha Blend, Haleigh Catalano, Kaitlyn Cameron

Pace Environmental Law Review

Introduction

“I’Ll Have The Fish, Please” – Why Wild, Sustainable Fisheries In The United States Need Permanent Federal Protection, And Fast, Renee Larson

Seattle Journal of Technology, Environmental & Innovation Law

No abstract provided.

Regulation, Radiation, And Rationality: Calculating An Intersection Of Law And Economics To Enable Nuclear Power Innovation In The United States, Sandra Roettgering

Seattle Journal of Technology, Environmental & Innovation Law

No abstract provided.

Major Questions (And Answers): A Call To Quiet The Quartet, Michael Reaves

Journal of the National Association of Administrative Law Judiciary

This Comment calls for action to quiet the Quartet—encouraging executive agencies to mitigate the pernicious impact of MQD. In Part I, this Comment discusses the political landscape in the area of climate action. Part II wades through the nearly forty-year doctrinal shift of delegation—from humble beginnings in a law review article from then-Judge Breyer in 1986, to the application of major questions principles at various stages of agency-deference analyses. Part III discusses the Quartet and its role in MQD as a determinative legal canon. Recent scholarship calls into question if there are multiple iterations of MQD, and whether the most …

Tunnels As Temples Of 'New Green India': Dominant Narratives Of Himalayan Dam Building, Manshi Asher, Vivek Negi

National Law School Journal

The dramatic unfolding of the Joshimath crisis in Uttarakhand, India, has brought the world’s attention once again to the Himalaya. The contribution of a 520-megawatt hydropower dam to land subsidence is squarely in the spotlight. River valleys with bumper-to-bumper hydropower dam building, especially in the North Western Himalaya, in the past decade and a half or so, have witnessed frequent slope de-stabilisation, landslides and seepages. Unlike the visible dispossession of rural—often adivasi and dalit— populations in reservoir based dam affected areas, even establishing and ‘scientifically’ correlating cascading hazards with human impacts of the ‘invisible’ activity of run-of-the-river dams in the …

Putting The Brakes On California's Emissions Standards: An Analysis Of The Legal Challenges California's Advanced Clean Cars Ii Standards Will Face, Michael Maloof

Cleveland State Law Review

This Note discusses the legal implications of California’s Advanced Clean Cars II vehicle-emissions standards. These standards, which would affect vehicle model years 2026 through 2035, seek to eliminate the sale of new gasoline-powered vehicles in favor of only selling electric, zero-emission vehicles. In light of the Supreme Court’s recent decision in West Virginia v. EPA, this type of “generation-shifting” plan stands on broken ground due to the applicability of the Major Questions Doctrine. The agency action here—EPA approval of a Clean Air Act §7543 waiver—is exactly the type of “extraordinary case” that the Court must strike down in order …

Climate Change And The Death Of The Administrative State?: West Virginia V. Environmental Protection Agency, Davis P. Rosser

Journal of Law and Policy

In recent decades, climate change events have surged in both frequency and intensity. Paradoxically, the most vulnerable and economically disadvantaged states, despite contributing the least to global emissions, face the gravest consequences. Developed nations, despite their wealth of resources, have consistently failed to act in the face of this crisis. For example, the recent United States Supreme Court Decision, West Virginia v. Environmental Protection Agency, limited the administrative state’s rulemaking authority and thus, its ability to enact necessary climate policy. This decision, based in the infamous “major questions doctrine,” asserts that administrative agencies must have explicit authority from Congress when …

Debt-For-Climate Swaps And Illicit Financial Flows: A Call For Caution In Designing Climate Finance Infrastructures, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

Ahead of COP28, there have been widespread calls for the adoption of 'debt-for nature' and 'debt-for-climate' swaps as an alternative climate finance system to address funding gaps in developing countries. Typically, these swaps involve a debtor country repurchasing its debt securities at substantial discounts or converting official bilateral debt into environmental assets, which enables more fiscal savings to be redirected toward conservation objectives. Unlike most climate finance instruments, these debt swaps avoid burdening countries in the Global South with additional unsustainable debt, thus allowing for a more effective response to the climate crisis without sacrificing spending on other development projects. …

The Role And Relevance Of Investment Treaties In Promoting Renewable Energy Investments, Ladan Mehranvar, Lisa E. Sachs

Columbia Center on Sustainable Investment

Co-authors Ladan Mehranvar and Lisa Sachs discuss the effect of investment treaties as catalysts for critical investments in the energy transition, with a particular focus on the Spanish renewable energy cases. The book chapter, "The Role and Relevance of Investment Treaties in Promoting Renewable Energy Investments," is featured in Investment Arbitration and Climate Change, published by Kluwer Law International B.V.

Endangered Whales Still Get Tangled In Fishing Gear: Let’S Change The Way We Approach The Problem, Tora Johnson

Maine Policy Review

The Gulf of Maine lobster industry has been roiled by conflict over whale entanglement for decades. With fewer than 350 North Atlantic right whales remaining, federal regulators are again seeking to implement new measures to protect them from tangling in fishing gear, while the lobster industry faces myriad challenges. My 2005 book Entanglements examined the complex and fraught debate between whale advocates and fishermen. Each side believed the other was inherently evil, greedy, and unduly powerful. Of course, the truth lay somewhere between. Between them were the brave souls who went to sea to wrestle fishing gear off of entangled …

The Changing Tides Of Action To Address Ocean Acidification In Maine, Ivy L. Frignoca, Heather R. Kenyon

Maine Policy Review

As carbon dioxide emissions continue to rise worldwide, ocean acidification has become a consequence that threatens both human and natural processes. On a global scale, ocean acidification is relatively well understood. However, the complex ecosystem of the nearshore environment presents challenges for monitoring and addressing ocean acidification. In a state such as Maine, whose communities heavily depend on the health of the coastal environment, understanding this threat becomes critically important.

In 2014, Maine’s legislature established a six month study commission to investigate this problem and produce recommendations. The commission proposed a coast-wide monitoring network that could identify and use a …

Blunt Instruments, Glass Slippers, And Unicorns: Ocean Governance In A Climate-Changed Gulf Of Maine, Susan E. Farady

Maine Policy Review

Management and governance systems should ideally match the nature of the natural environment and the range of human uses. Today’s ocean and coastal governance system is made up of singular laws and government agencies, the product of years of evolution. This system was never intended to reflect the complexities of the marine ecosystem and varied human uses of marine resources. The resulting “silo-ed” management system has never worked particularly well, but as we face a rapidly changing Gulf of Maine, and accompanying changes in uses, this system’s limitations are increasingly obvious. An “ideal” ocean governance system would be comprehensive and …

Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023.

Disrupting Dominance, Cinnamon P. Carlarne, Keith H. Hirokawa

Connecticut Law Review

Climate change poses one of the greatest threats to human health and well-being. It also poses enormous challenges to the rule of law. As climate change progresses and climate impacts intensify, it becomes increasingly urgent to consider whether and how we are drawing upon the law as a tool to advance human adaptation to climate change. Equally, we must consider whether and how the evolving rule of law around climate change responds to existing patterns of social, political, and economic inequality. These are the questions this article engages.

As a starting point, this Article centers human vulnerability as a necessary …

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

National Legal Models To Regulate Scrubbers Washwater, Shams Al Din Al Hajjaji

Loyola of Los Angeles International and Comparative Law Review

According to the findings of this study, nations should adopt uniform regulations regarding the discharge of washwater from exhaust gas cleaning systems into their ports, territories, and Exclusive Economic Zones. Scrubbers are used by ships to reduce their emissions of greenhouse gases so they can adhere to the International Maritime Organization’s limit on the sulfur content of ship fuel. The global upper limit was 0.5% in January 2020. Scrubber washwater is discharged into the ocean by ships. Toxic substances are present in the washwater for the scrubbers. The level of washwater for the scrubbers is governed by the 2008 and …

Environmental Law & Policy Networking Happy Hour, Cardozo Environmental Law Society

Flyers 2023-2024

No abstract provided.

Environmental And Natural Resources Law Symposium: Assessing The August 2023 Amendments To The Waters Of The United States Rule In The Wake Of Sackett V. Epa, Ryan Day

Maurer Law Events

In 1982, the Army Corps of Engineers adopted the EPA definition of “waters of the United States.” This brought an end to a smoldering interagency conflict over the definitions under the Clean Water Act. This relationship was formalized with a 1989 Memorandum of Agreement between the EPA and the Corps; the Corps has largely ceded definitional decision making to the EPA, which develops guidance and supporting materials, while the Corps is responsible for most case-specific jurisdictional determinations under Section 404 of the Clean Water Act. In 2023, the agencies embarked on their latest round of rulemaking. In January, the Biden …

Congressional Briefing: Support America’S Circular Economy By Upcycling Bourbon & Brewing Wastes In Reauthorizing The Farm Bill, Samuel Kessler

Commonwealth Policy Papers

Following state level development of a new spent grain incentive system, leading to KY House Bill 627 in 2022, CPC’s Congressional Summit dialogue considered initial components and possibilities for designing an incentive to upcycle “keystone” organic wastes in regional economies across the US. For member offices, a set of general recommendations are provided for a national spent-grain upcycling incentive pilot program. It is suggested that staff of the Bourbon caucus consult with the references in this briefing and USDA Rural Development to consider further development of an incentive program in the reauthorization of the Farm Bill.

It is further urged …

Effective Shareholder Engagement To Address The Food Sector’S Sdg-Related Impacts In Mexico, Nora Mardirossian

Columbia Center on Sustainable Investment

While investor engagement on environmental and social issues have grown in recent years, they remain limited in Mexico and other emerging markets.

Investors have an opportunity to do more to help address critical SDG-related issues in these contexts through their active ownership efforts. By doing so, they can be more responsible in ensuring respect for human rights, protecting shared systems, and supporting their long-term financial interests. Importantly, they can also ensure they comply with – and support their portfolio companies in complying with – emerging legal frameworks requiring reporting and due diligence on the impacts of their global value chains. …