Law Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …

The Public Trust Doctrine, Outer Space, And The Global Commons: Time To Call Home Et, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Space exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy. Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer …

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

A Risky Business: Generation Of Nuclear Power And Deepwater Drilling For Offshore Oil And Gas, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Government regulation and licensing of industrial activities that create the possibility of catastrophic risk reflect “a political value judgment that these activities provide a social benefit that is greater than the social cost of the risks that they cause.” However, when a catastrophic accident occurs, the cost-benefit evaluations underlying the value judgment that authorized the activity may need to be rethought. Social rethinking is especially warranted when the accident could have been prevented had either the industry or the government more seriously assessed the risk of a catastrophic event and implemented precautionary steps to avoid it. This was the conclusion …

The Public Trust Doctrine: What A Tall Tale They Tell, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Despite continuing hostility towards the public trust doctrine because of its potential to defeat private property rights and the will of elected representatives, the doctrine refuses to die. It continues to assure public access to and protection of certain natural resources of communal value; in fact, the doctrine's geographic reach and the activities it protects have expanded beyond its original conception. It is this doctrinal accretion that has drawn the attention of Professor James Huffman, who in a recent article criticizes the "ambitions" of public trust scholars who see in "an expansive public trust doctrine . . . a powerful …

Dual Regulation, Collaborative Management, Or Layered Federalism: Can Cooperative Federalism Models From Other Laws Save Our Public Lands?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

To realize the goals of conservation biology and ecosystem management, the institutions that govern these systems must be able to work together harmoniously, across political boundary lines and into a biologically uncertain future. The rigidity of the current public lands model creates substantial barriers to the achievement of these goals.

This article's working premise is that unless the current governance structure for the management of public lands changes, the political conflicts over their use and management will continue to blight their future, just as it has marred their past. Further, failing to adapt the management of public lands to our …

Crystals And Mud In Nature, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Professor James Salzman has written a wonderful article, which promises an equally wonderful book. His article intelligently and thoughtfully examines the forces that compete, conflict, and combine in the creation of laws relating to drinking water. These include, of course, the physical characteristics of the resource itself and how the resource relates to essential biological needs of humankind. But as Professor Salzman demonstrates, the biological role is only one of several perspectives on drinking water relevant to the kind of legal rules that apply to it. The article describes drinking water as a cultural resource, a social resource, and an …

Dual Regulation, Collaborative Management Or Layered Federalism: Can Cooperative Federalism Models From Other Laws Save Our Public Lands?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Few would assert that the current governance model for managing the nation's public lands, which grants exclusive authority to the federal government, has protected the natural resource values of those lands or provided a framework for the harmonious resolution of conflicts over their use. Dissatisfaction is apparent from recurrent proposals to privatize public lands or to devolve their ownership to the states. The emergence of the "wise use" and "county supremacy" movements directly challenges the authority of the federal government to manage its land. While this new state and local assertiveness is not without historical basis nor completely without merit, …

Changing Conceptions Of Property And Sovereignty In Natural Resources Law: Questioning The Public Trust Doctrine, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

This Article considers and evaluates the 'public trust doctrine," one of the most remarkable legal bases upon which natural resources law has relied in this ongoing transformation. The public trust doctrine is based on an amorphous notion that has been with us since the days of Justinian - the notion that the public possesses inviolable rights in certain natural resources. Commentators first hailed the doctrine in 1970 as offering the most promising legal basis upon which individual members of the public could maintain a lawsuit to protect natural resources from needless degradation and destruction. In the seminal article on the …