Law Commons^™

Exploring The Bedrock For Earth Jurisprudence, Maria Antonia Tigre

Sabin Center for Climate Change Law

This article calls for a reassessment of our core beliefs on how we relate to the environment through a deep dive into the philosophical foundations of environmental protection. With this purpose, it shows how Earth-centered discourses have existed in human societies and civilizations for millennia. Different religious and philosophical underpinnings all share a view of humanity as an integral part of an organic whole, revering all living things. While recent developments in jurisprudence may appear novel, they are somewhat latent and emergent. Theories of land ethics, rights of nature, Earth-centered environmental ethics, wild law, and Earth jurisprudence all build on …

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Coping With E-Waste: Prospects Of E-Waste Circular Economy Within The Gcc: Analyzing The Legal Framework On Recycling Of E-Waste Within The Gcc, Ali Saeed Alrobayee

Dissertations & Theses

The GCC has experienced rapid population growth and urbanization in the last 40 years. The rise in population has caused a surge in e-waste within the GCC countries. Electronic waste poses severe health and environmental risks, calling for the adoption of a circular economy where e-wastes are converted into valuable products through recycling. However, achieving a circular economy requires a robust legal framework, technologies and policies as practiced globally. The Global E-waste Monitor has traced e-waste generation in the GCC countries since 2014. One critical finding is that the e-waste generation has surged with population growth, urbanization and the advancement …

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.

Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy

Publications

This article will first offer a functional synopsis relevant to its remit, of the concept of sustainable development (SD) embodied in international law and policy that reflects a tension between economic and social claims as contrasted with environmental protection. While the dominant place acquired by the economic and social dimensions of SD will be recognized, it will argue consistent with the predicate of justice discussed in the article, that the protection of the human environment encompasses the plight of the energy poor and their women and children. Second, the article will delineate the contours of one of the great developmental …

The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy

Publications

No abstract provided.

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …

Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark Nevitt, Robert V. Percival

All Faculty Scholarship

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet they differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System (ATS), a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in …

Foundations For Sustainable Development: Harmonizing Islam, Nature And Law, Norah Bin Hamad

Dissertations & Theses

Human society is weakening Earth’s environment, its only home. In 2015, nations agreed on a new set of Sustainable Development Goals (SDGs) to guide restoring and sustaining the wellbeing of peoples everywhere. If the SDGs are to succeed, all cultural and religious communities will need to urgently implement them. Islam offers a holistic view of God’s creation and the Qur’an clearly sets forth duties to care for the Earth. In the past, most people have ignored the world-wide trends of environmental degradation which scientist have reported. There is a pressing need to expand education and public awareness about the threats …

Recent Developments In Climate Justice, Randall S. Abate, Rachel Jean-Baptiste, Maria Antonia Tigre, Patricia Ferreira, Wil Burns

Journal Publications

Climate justice can be defined generally as addressing the disproportionate burden of climate change impacts on poor and marginalized communities. It seeks to promote more equitable allocation of these burdens at the local, national, and global levels through proactive regulatory initiatives and reactive judicial remedies that draw on international human rights and domestic environmental justice theories. Yet, efforts to define climate justice as a field of inquiry remain elusive and underinclusive; a recent book, Climate Justice: Case Studies in Global and Regional Governance Challenges (ELI Press 2016), seeks to fill that void by providing an overview of the landscape of …

Saving The Serengeti: Africa's New International Judicial Environmentalism, James T. Gathii

Faculty Publications & Other Works

This Article analyzes recent environmental law decisions of Africa's fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa's international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa's international courts are simultaneously pushing …

Promoting Sustainable Development Through Environmental Law: Prospects For Saudi Arabia, Faisal K. Alturki

Dissertations & Theses

The Kingdom of Saudi Arabia enjoys a rich cultural and natural heritage and has an advanced state of socio- economic development. It also suffers from a wide range of growing environmental problems such as securing its potable water supply, coping with solid and liquid waste, ensuring clean air or protecting the marine environment. It is the objective of sustainable development to ensure that further development in the Kingdom does not damage the public health of the people or the natural environment. The policies underlying sustainable development have developed internationally over the past four decades and are well explained in Agenda …

The Limits Of Judicial Mechanisms For Developing And Enforcing International Environmental Norms: Introductory Remarks, Nienke Grossman, Jacqueline Peel

All Faculty Scholarship

International courts and tribunals have played a key role in the development of principles and norms of international environmental law. Over the last two decades, such bodies have been asked to resolve a growing number of disputes that involve environmental issues. The types of issues considered by international courts and tribunals have also expanded in scope and complexity. For instance, disputes concerning environmental matters may involve claims of state responsibility, law of the sea questions, human rights issues, or trade and investment aspects.

Options For Adaption To Climate Change, Richard L. Ottinger, Pianpian Wang, Kristin M. Motel

Elisabeth Haub School of Law Faculty Publications

In order to tackle climate change, the Intergovernmental Panel on Climate Change (“IPCC”) provided a portfolio of measures: mitigation, adaptation and constant research. Although Article 10 of the Kyoto Protocol underlined the importance of adaptation, adaptation to climate change had been obtained limited attention in the early negotiations of climate talks. In 2010, Cancun Session of Conference of Parties (“COP”) of the United Nations Framework Convention on Climate Change (“UNFCCC”) highlighted the equal importance of adaptation just as mitigation. Since then, increasing attention has been drawn to adaptation practice by the international society. Typically, adaptation can be broken down into …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

Keynote: Sustaining Society In The Anthropocene Epoch, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy …

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

Global Environmental Law: Food Safety & China, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article makes the case for food security law and policy as a component of global environmental law in recognition of the global economy, trade liberalization, and concerns for food safety and environmental harm. It further describes rule of law as a significant force in mitigating food safety concerns and pollution in China. Part II explores global food safety concerns in the context of United States-China relations, while Part III discusses the U.S. Food & Drug Administration's on-the-ground presence in China as an example of the emergence of cooperative agreements in global environmental governance. Part IV shows how increased rule …

Introductory Remarks. Arctic Law: The Challenges Of Governance In The Changing Arctic, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Reflecting On Measured Deliberations, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

“Environmental law is essential for the protection of natural resources and ecosystems and reflects our best hope for the future of our planet”. This declaration, made by participants at the Rio+20 World Congress on Justice, Governance and Law for Environmental Sustainability, reflects the maturing of environmental law around the world. Usually implicitly, but often explicitly, the deliberations at Rio+20 in June 2012 addressed the dual needs for more effective implementation of existing environmental norms and enacting further laws to stem global degradation of the environment. Rio+20 recommended that, in the autumn of 2012, the United Nations General Assembly (UNGA) act …

The Curious Case Of Greening In Carbon Markets, William Boyd, James Salzman

Publications

Over the last several years, so-called carbon markets have emerged around the world to facilitate trading in greenhouse gas credits. This Article takes a close look at an unexpected and unprecedented development in some of these markets--premium "green" currencies have emerged and, in some cases, displaced standard compliance currencies. Past experiences with other environmental compliance markets, such as the sulfur dioxide and wetlands mitigation markets, suggest the exact opposite should be occurring. Indeed, buyers in such markets should only be interested in buying compliance, not in the underlying environmental integrity of the compliance unit. In some of the compliance carbon …

Three Obstacles To The Promotion Of Corporate Social Responsibility By Means Of The Alien Tort Claims Act: The Sosa Court's Incoherent Conception Of The Law Of Nations, The "Purposive" Action Requirement For Aiding And Abetting, And The State Action Requirement For Primary Liability, David A. Dana, Michael Barsa

Faculty Working Papers

The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court's ahistorical and incoherent formulation of the "law of nations" fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts' confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we …

Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd

Publications

The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little …

A Green Road To Development: Environmental Regulations And Developing Countries In The Wto, Jonathan Skinner

Publications

The WTO framework can accommodate enforceable environmentally protective measures.

Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd

Publications

Few areas of law are as deeply implicated with science and technology as environmental law, yet we have only a cursory understanding of how science and technology shape the field. Environmental law, it seems, has lost sight of the constitutive role that science and technology play in fashioning the problems that it targets for regulation. Too often, the study and practice of environmental law and governance take the object of governance--be it climate change, water pollution, biodiversity, or deforestation--as self-evident, natural, and fully-formed without recognizing the significant scientific and technological investments that go into making such objects and the manner …

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Valuing Foreign Lives And Civilizations In Cost-Benefit Analysis: The Case Of The United States And Climate Change Policy, David A. Dana

Faculty Working Papers

This Article explores the case for including losses of foreign (non-U.S.) lives and settlements in the estimated cost to the United States of unmitigated climate change in the future. The inclusion of losses of such foreign lives and settlements in cost benefit analysis (CBA) could have large implications not only for U.S. climate change policy but also for policies adopted by other nations and the practice of CBA generally. One difficult problem is how to assess U.S. residents' willingness to pay to prevent the losses of foreign lives and settlements. This Article discusses internet-based surveys that are a first step …

El Surgimiento Del Derecho Ambiental Global, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public land domestic/international distinctions. The result has been the emergence of a kind of “global environmental law” – law …

Climate Change: The China Problem, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process …

Agenda: The Climate Of Environmental Justice: Taking Stock, University Of Colorado Boulder. School Of Law

The Climate of Environmental Justice: Taking Stock (March 16-17)

On March 16-17, The Climate of Environmental Justice: Taking Stock conference gathered 125 academics and practitioners from around the country to consider the pressing issues facing low-income and/or communities of color that continue to be subjected to a disproportionate share of environmental maladies.

"Some people are more equal than others when it comes to bracing ourselves for the impacts of climate change," said conference organizer Professor Maxine Burkett. "Whether it's because poor folks lived in the lowest areas of New Orleans when Katrina floodwaters rushed in, or are less able to afford the cooling bill during increasingly frequent heat waves, …