Law Commons^™

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

Droughts, Floods, And Wildfires: Paleo Perspectives On Diaster Law In The Anthropocene, Ryan Stoa

Ryan B. Stoa

Humanity's impact on the earth has become so pronounced that momentum is building toward adopting a new term for the modem geological age-the "Anthropocene." The term signifies that human activity has reached a scale that it is now a planetary force capable of shaping ecosystems and natural processes. And yet, anthropocentric natural resources management and environmental lawmaking in the United States reveal a lack of control in managing natural systems and fostering resilience to extreme events. These systems do not easily conform to the whims of reactionary environmental policies. Droughts, floods, and wildfires, in particular are often conceptualized as unforeseeable …

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

Christine A. Klein

Climate change adaptation is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and its …

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

Thomas T Ankersen

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on …

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

Mary Jane Angelo

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

Anti-Waste, Michael Pappas

Michael Pappas

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2013 Edition, 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 Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law and. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property. …

Endangered Species Act Lessons Over 30 Years, And The Legacy Of The Snail Darter, A Small Fish In A Pork Barrel, Zygmunt J.B. Plater

Zygmunt J.B. Plater

Why is it – amidst the flood of environmental statutes that poured into the law books and national consciousness in the remarkable decade of the 1970s – that the Endangered Species Act of 1973 (ESA) stands out as quite uniquely different? This Essay briefly surveys the ESA’s differentness, its special political context, the citizen suit of great notoriety that fired up the ESA’s political hotseat back in 1975, and what has changed and what has not in the years since that first eco-legal outburst.

Reflected In A River: Agency Accountability And The Tva Tellico Dam Case, Zygmunt J.B. Plater

Zygmunt J.B. Plater

Legal history is usually written from one of two time perspectives: as a narrative of events and changing conditions over a span of years or as an extended exploration of one fertile moment in time. In examining the intriguing entity known as the Tennessee Valley Authority (TVA), this article draws upon that chronological history to some extent. To a greater extent, however, it focuses upon revealing moments in the last six years of the long-running battles over completion of the TVA’s Tellico dam, which finally flooded the last remaining stretch of the Little Tennessee River Valley in the spring of …

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The functional linkages between law and media have long been signficant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public interest …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), 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 …

In The Heat Of The Law, It's Not Just Steam: Geothermal Resources And The Impact On Thermophile Biodiversity, Donald J. Kochan, Tiffany Grant

Donald J. Kochan

Significant research has been conducted into the utilization of geothermal resources as a ‘green’ energy source. However, minimal research has been conducted into geothermal resource utilization and depletion impacts on thermophile biodiversity. Thermophiles are organisms which have adapted over millions of year to extreme temperature and chemical compositions and exist in hot springs and other geothermal resources. Their ability to withstand high temperatures makes them invaluable to scientific and medical research. Current federal and California case law classify geothermal resources as a mineral, not a water resource. Acquisition of rights to develop a geothermal resource owned or reserved by the …