Law Commons^™

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Rio 20 - An Analysis Of The Zero Draft And The Final Outcome Document "The Future We Want", Vicki-Ann Assevero, Sonali P. Chitre

Sonali P Chitre

Rio 20 the United Nations Conference on Sustainable Development (UNCSD) was held June 20-22, 2012 to allow world leaders as well as participants from governments, civil society, nongovernmental organizations (NGOs), and other groups to come together to draft a roadmap detailing how the world should promote sustainable development. The Final Outcome Document (FOD) of Rio 201 is more detailed and stronger than the initial Zero Draft. The Zero Draft of January 10, 2012 by the Secretariat was purposely general and left many areas to be filled in by specific country proposals. The FOD was finalized and agreed upon by 192 …

The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres

Jody M. Endres

Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …

Vietnam And The United States: Mining Pollution And The Tragedy Of The Commons, Heather Whitney

Heather Whitney

This paper will discuss Vietnam’s mining pollution problem, and its efforts to foster clean water create and an environmental protection framework within its Constitution, environmental laws and regulations. This paper will also juxtapose these issues with the United States’ regulatory mechanisms for mining and water quality protection, which in comparison are complex and well-rounded, but nonetheless still have regulatory and enforcement loopholes that prevent proper water quality protection. In Vietnam, like most developing countries, regulations and policy statements place socioeconomic growth above water quality protection that frustrates these efforts. Environmental and water quality laws and regulations in Vietnam have not …

Frayed Seams In The "Patchwork Quilt" Of American Federalism: An Empirical Analysis Of Invasive Plant Species Regulation, A. Bryan Endres, James S.N. Mccubbins, Lauren D. Quinn, Jacob N. Barney

A. Bryan Endres

Increased demand for biomass feedstocks to meet renewable energy mandates will require development of newer, bigger and better plant resources. Ideal biomass traits–fast growth and ability to outcompete local vegetation, prolific seed production, adaptability to a variety of soil and climatic conditions, and resistance to pests and diseases–also typify invasive flora. Next-generation biofuel feedstocks may be more productive and profitable at the individual farm level, but also may pose a greater risk of becoming invasive, thereby damaging the broader ecosystem and the economy. Accordingly, the agronomist’s search for yield maximizing biofuel crops for deployment into novel agricultural production systems and …

Climate Hawks And California's Carbon Offset Program, Ross Astoria

Ross Astoria

Abstract Two non-profit organizations composed of climate hawks are presently challenging the legality of the offset portions of California’s greenhouse gas cap-and-trade regulations. They claim that the offset protocols do not guarantee “additionality” as required by AB 32, the Global Warming Solutions Act. In this paper, I look at the general regulatory framework in which California offset projects are to be developed and argue that for the most part climate hawks ought to use the protocols to develop buy-in and disseminate expertise, two “incidental” yet indispensible aspects of successful GHG mitigation policy. The degree to which these two goals can …

Judicial Oversight In The Comparative Context: Biodiversity Protection In The Us, Australia, And Canada, Robert B. Shaffer

Robert B Shaffer

How effective are the courts as policymaking institutions? To investigate this issue, I examine two species – polar bears, and loggerhead sea turtles – as they navigate the conservation regimes in the US and Canada and the US and Australia, respectively. Generally speaking, courts play a far larger role in American biodiversity law than they do in comparable Australian and Canadian statutory programs. As a result, studying endangered species protection offers a useful way to identify and isolate the policy impacts of judicial intervention.

Based on this analysis, I argue that courts can be effective contributors to the policymaking process. …

We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White

Prentice L White

WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Raising Cane: Cuban Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

No abstract provided.

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux

Paul Boudreaux

The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of carrots …

Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux

Paul Boudreaux

ABSTRACT The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of …

Using Building Codes To Rewrite The Tailoring Rule And Mitigate Climate Change, Albert Monroe

Albert Monroe

In 2007, Mass. v. EPA effectively forced the EPA to regulate emissions of carbon dioxide and other greenhouse gases. The plain language of the Clean Air Act gave the EPA an impossible mandate of regulating millions of buildings on a case-by-case basis. The EPA, through the Tailoring Rule, decided to regulate fewer sources. This paper shows that the EPA’s approach is legally suspect. Instead, the EPA should regulate more sources using general permits that avoid the impossibility of case-by-case regulation of millions of sources. The EPA can regulate buildings under the Clean Air Act by mandating stricter building codes for …

When Can You Teach An Old Law New Tricks?, Philip A. Wallach

Philip A Wallach

This article considers the distinctive legal and institutional dynamics involved when agencies interpret existing statutes for novel purposes. It argues that courts take into account policy-specific institutional factors, such as legislative dysfunction, when they consider the propriety of such novel interpretations, rather than employing universal ideas about institutional competencies. Where Congress has shown an inability to legislate in a policy area, courts are more likely to sympathize with changes in interpretation as partial substitutes for new legislation, but relying on old statutory language creates problems of statutory mismatch. The article contends that many arguments over statutory meaning mask disagreements about …

Anachronistic Pollution Policy: The Case Of Wildfire Smoke Regulation, Kirsten H. Engel

Kirsten H. Engel

Wildfire is on the rise. The United States is witnessing a spectacular increase in acres lost to catastrophic wildfires, a phenomenon fed by the generally hotter and dryer conditions associated with climate change. In addition to losses in lives, property and natural resources, wildfires contribute thousands of tons of air pollution each year. Ironically, perhaps the most effective tool to reduce the incidence and severity of unplanned wildfires is fire. In the form of prescribed, or controlled, burning and wildfires that are allowed to burn for their resource benefits, “planned wildfire” reduces the buildup of vegetation resulting from years of …

Forging Towards Coexistence, Laurie J. Beyranevand

Laurie J Beyranevand

Abstract: For better or worse, the United States has demonstrated a long history of support for agricultural biotechnology. Justified as necessary to meet the growing demands of our nation’s food demand, federal policies addressing genetic engineering have attempted to balance of set of competing interests to ensure health and safety while also encouraging further innovation and development of technology. The unfortunate effects of these policies are suffered disproportionately by organic and non-GE farmers, as there has been little consideration of how the products of genetic engineering impact this sector. In the midst of regulating biotechnology, the federal government has lost …

Rationalizing Risks To Cultural Loss In Resource Development, Sari M. Graben

Sari M Graben

Abstract In this article, I consider the implications of culture for valuation of cultural loss in cost benefit analysis. I argue that rational choice models have a difficult time quantifying cultural values because they have yet to grapple with the way experts tasked with cost benefit analysis translate knowledge about cultural worldviews for the purposes of comparison. This translation can alter the valuation of the risk so as to undermine the representation of a loss, rather than identify it. However, instead of rejecting the consideration of cultural loss in cost-benefit analysis outright, I build on dialogical approaches to governance that …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances where agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

A Catch 22: The Price To Pay For Property Rights Under The Clean Water Act And Administrative Compliance Orders, Lindsey F. Brewer

Lindsey F. Brewer

Environmental conservationist groups often argue that private-property owners are alert to wetland designations -- especially in their own backyard -- and as a result no procedural due process is necessary for the EPA to issue an administrative compliance order (ACO). But as a practical matter it is very difficult to make a wetland determination, and individual private-property owners are building residential homes on potential wetlands without knowledge. The result is forced and costly compliance with the EPA. The environmental concerns are valid, but property and liberty interests are protected by the Constitution. How can the Court strike a balance between …

Standing As Channeling In The Administrative Age, Dru Stevenson, Sonny Eckhart

Dru Stevenson

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that …

What’S Blowin’ In The Wind? The Use Of Coal Ash In Landfills And The Power Of Local Governments To Stop It, Charlie Schmidt

Charlie Schmidt

This paper addresses the use of Coal Combustion By-product (AKA coal ash) as approved "fill" product for landfills. Specifically, it addresses the overlap of Federal, State, and Municipal land use laws as these apply to landfills abutting residential areas. Coal Ash has been approved by the Virginia Department of Environmental Quality (DEQ) to use as fill material in landfills. Recently, the Board of Zoning Appeals (BZA) for the County of Henrico, VA, just east of Richmond, VA, rejected a zoning permit to allow East End Resource Recovery (EERR) to import, collect, and store coal ash on site for use as …

The Waters Are Rising! Why Isn’T My Tax Basis Sinking?: Why Coastal Land Should Be A Depreciable Asset In Light Of Global Warming And The Rise In Sea Level, Jason P. Oppenheim

Jason P Oppenheim

Depreciation deductions are the Internal Revenue Code’s method of allowing taxpayers to take deductions on long-term investments. Unlike normal deductions, depreciation requires the taxpayer to apportion the expense over the life of the asset. While most assets used for the production of income may be depreciated, the Internal Revenue Service and courts have never allowed land to be depreciated. The treatment of land as a non-depreciable asset is deeply rooted in the idea that it does not have a useful life—it lasts forever. However, the rate of global warming has increased rapidly over the past fifty years and is expected …