Law Commons^™

Restoring Tradition: The Inapplicability Of Tva V. Hill's Endangered Species Act Injunctive Relief Standard To Preliminary Injunctive Relief Of Non-Federal Actors, Brandon M. Middleton

Brandon M Middleton

While traditional equitable analysis requires the balancing of harms to affected parties and the assessment of the public interest when considering preliminary injunctive relief, courts have largely declined to do so in Endangered Species Act litigation. This unique approach stems from the Supreme Court’s landmark 1978 Endangered Species Act decision, TVA v. Hill. More recent Supreme Court decisions, however, suggest that TVA should not be read so broadly, and that the traditional approach to preliminary injunctions offers no exception. This article examines the development of the TVA preliminary injunctive relief approach in the lower courts. It then discusses why this …

Incompatibility Of Multilateral Treaty Reservations With International Environmental Law, Iain J. Macleod

Iain J MacLeod

This paper looks at how the idea of reservations has developed from a guiding principle, through its codification in the Vienna Convention on the Law of Treaties (VCLT), to its place in customary international law. A subsequent analysis of three selected international environmental treaties explores the reservation provisions to determine if those deposited contradict the object and purpose of their respective convention, with due regard given to Article 19 of the VCLT. Finally, I propose a number of reservation mechanisms that could be used or adapted in order to minimise the negative impact that any reservation to an international environment …

On The Ecological Issues In The Three Gorges Area And Its Countermeasures Of Law, Mingde Cao

Mingde Cao Dr.

This article indicates that the Three Gorges area once was an area with good ecology in the history, but there appeared ecological issues such as low forestry vegetation rate, severe soil erosion, the heavy extinction of the wildlife species, frequent geological disasters and serious water pollution from the modern times especially after the foundation of the people’s republic of China. This article discusses the great economic benefits and its ecological benefits from the fields of preventing the flood, generating the electricity and shipping. At the same time it also discusses the possible adverse effects caused by the Three Gorges project …

Sb 375: Smart Growth Savior Or Just The Beginning, Navjot Singh Athwal

Navjot Athwal

This Article analyzes and dissects what has been commonly referred to as California’s climate change smart growth bill: SB 375. This bill, which was the result of a unique compromise between environmentalists, local governments and the building industry, seeks to reduce greenhouse gas emissions by creating incentives and in some cases implicit mandates for smarter land use and development choices by local governments and developers thereby seeking to reduce vehicle miles traveled. Thus, in sum the bill strives to help Californians spend less time in their cars. SB 375 was signed into law in 2008, shortly after AB 32 passed …

The Winter Of Our Discontent: The Impact Of Copenhagen's Failure, Richard Faulk

Richard Faulk

Far from treating climate change as a “universal” problem that transcends national boundaries, the Copenhagen conference devolved into a frustrating exercise in nationalism, where individual nations, or groups of nations, tried to satisfy their particular needs, as opposed to redressing global climate problems. Now that Copenhagen’s uproar has faded, it is appropriate to evaluate the consequences of the conference’s failure for American industry.

The Public Trust Doctrine And Private Property: The Accommodation Principle, Michael C. Blumm

Michael Blumm

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, …

An Extinction Of Transparency: The Opaque Endangered Species List, Benjamin W. Cramer

Benjamin W. Cramer

This article reconstructs the Endangered Species Act (ESA) as an informational statute with unresolved problems of transparency and disclosure. The article introduces the informational requirements of modern American environmental legislation, including the ESA. The article then examines the conflict between the substantive goals of the ESA and the procedural focus of American administrative jurisprudence. This is followed by a case history of the informational requirements of the ESA in general and the official endangered species list in particular, with coverage of political manipulation of the list and whether or not it is a truly transparent item of government-held information. The …

Miccosukees And The Tamiami Trail Bridge: Examining The Tribe’S Attempts To Sink The Modified Waters Delivery Project, Jeffrey A. Hegewald

jeffrey a hegewald

In the fall of 2008, legal challenges to the Tamiami Trail Bridge project threatened to derail a critical component of the $7.3 billion Everglades restoration program. Indeed, only the Omnibus Spending Act of 2009 saved the project following a ruling from the Federal District Court for the Southern District of Florida. Prior to the events discussed in my note, failure appeared almost certain for years of research, development, and project adaptations performed by the Army Corps of Engineers in conjunction with the DOI/National Park Service.

My note, "Miccosukees and the Tamiami Trail Bridge: Examining the Tribe’s Attempts to Sink the …

Adding Insult To Injury: Regulatory And Litigant Slight To Environmental Injustice, Claudia Wald

Claudia Wald

Likewise, cases asserting a community’s environmental rights cannot succeed in conjunction with the system of environmental regulation… Likewise, the system of environmental regulation in place is both overly broad and underinclusive- thereby not amenable to a rights-based justification of environmental protection which indigent and people of color communities are raising… Likewise… many plaintiffs turned to Title VI of the Civil Rights Act of 1964 to pursue their claims in light of the difficulties of litigating under the Equal Protection Doctrine…. Likewise, the recent Sandoval decision ruled that no private cause of action existed under Title VI of the Civil Rights …

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Stepan Wood

This Article examines the history of Canadian environmental law to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic, and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced …

Decision On Bt-Brinjal: Issues Of Legal Certainty, Nupur Chowdhury, Nidhi Srivastava

Nupur Chowdhury

The recent decision of the government of India to impose a moratorium on the release of Bt-Brinjal has been hailed by civil society and scientists alike as a victory for transparency and has demonstrated that the government is responsive to societal demands. This decision is also important since it could set a precedent within environmental regulation with reference to technologies with significant environmental risks. However, the decision also reflects a clear departure from procedure and its legal basis is tenuous and therefore the risk of it being reversed remains. This establishes a clear case for ensuring legal certainty in environmental …

Cleaning Up The Muck: Clarifying The Scope Of Cercla's Potentially Responsible Parties, Matthew K. Telford

Matthew K Telford

Last term, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court clarified the scope of CERCLA’s arranger liability by holding that an arranger must intend to dispose, in order to be held liable as a Potentially Responsible Party (“PRP”). The case sheds light on the Supreme Court’s plain language construction of CERCLA, and its willingness to graft requirements for liability which some consider inconsistent with a strict liability statute. The Court’s decision focuses attention on other PRP disputes, specifically the extent to which a previous owner, one of the four categories of PRP, can be …

Abuse Of The Warranted But Precluded Designation: A Real Or Imagined Purgatory?, K. Mollie Smith

K. Mollie Smith

Despite a strong policy of protecting all seriously declining species, the Endangered Species Act (ESA) falls far short of its goal. Currently, it protects less than nineteen percent of plant and animal species at risk of extinction. While many factors contribute to this shortfall, critics allege that abuse of the warranted but precluded (WBP) designation plays an integral role. The WBP designation allows the listing agency to acknowledge that a species warrants protection under the ESA, but delay such protection if it only has the resources to address higher priority species. The purpose of the WBP designation is to give …

International Law, State Sovereignty And Transboundary Waters, Aguinaldo Alemar

Aguinaldo Alemar

The current status of transboundary water resources is to claim a more proactive posture by the sovereign states, mainly those having large reserves of fresh water shared. This new posture involves actions between the states as a key condition to the success of any enterprise that aims to protect the environment. It intends to prove that other actors - national and international - are already mobilizing themselves to consider water as a "common heritage of mankind" and, as such, water must be considered above the classical concepts of sovereignty and territory, excelling by the humanitarian interest that it arouses. At …

Framing Water Policy In A Carbon Affected And Carbon Constrained Environment, Noah D. Hall, Robert H. Abrams

Noah D Hall

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water …

Spineless Wonders: How Listing Marine Invertebrates And Their Larvae Challenges The Us Endangered Species Act, Ryan P. Kelly

Ryan P Kelly

The National Marine Fisheries Service (NMFS) recently determined that 82 species of corals may warrant protection under the Endangered Species Act (ESA). This decision highlights a disconnect between the ESA and the biology of many species to which it applies. In particular, marine invertebrates – ocean-dwelling species without a backbone – are an uneasy fit for the Act’s terms, largely as a result of their complex life cycles that can involve swimming larval stages. These species and their larvae challenge the federal agencies to fulfill the protective mandate of the ESA while minimizing disruption to the wide range of economic …

The Use Of Population Genetics In Endangered Species Act Listing Decisions, Ryan P. Kelly

Ryan P Kelly

In recent years the federal agencies that administer the Endangered Species Act have increasingly relied on genetic data to decide which species and populations merit protection. Because the analysis of genetic data is highly technical and unfamiliar to the majority of those concerned with the Act, agency decisions are in danger of becoming less transparent, insulated by the language of genetics and the seeming surety of its associated statistics. In this paper, I attempt to provide a resource for lawyers and other non-biologists faced with understanding the genetics that underlie many modern claims under the Endangered Species Act. I do …

Carbon Taxation In Theory And In Practice, David Duff, Shi-Ling Hsu

Shi-Ling Hsu

There are a number of regulatory approaches to addressing the problem of global climate change, but four stand out: (i) carbon taxation, (ii) cap-and-trade programs, (iii) government subsidies, and (iv) so-called command-and-control regulation. This paper sets out a list of economic, political, and legal reasons for favouring carbon taxation over all of the other options. We do not argue that carbon taxation is the only solution to climate change, but that it should serve as the centerpiece of national governmental responses to the problem of climate change. Indeed, one reason we favour carbon taxation is precisely because it leaves room …

Can The Law Facilitate A Finance Shift From Mitigation To Adaptation?, Kirk W. Junker

Kirk W Junker

No abstract provided.

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency-Fee Environmental Special Counselor Arrangement, Julie E. Steiner

Julie E. Steiner

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …

An Environmental Role For Energy Regulators, Jeremy Knee

Jeremy Knee

No abstract provided.

Green Building Contracts: Considering The Roles Of Consequential Damages & Limitation Of Liability Provisions, Darren Prum, Stephen Del Percio

Darren A. Prum

The green building market continues to grow, but so do the corresponding legal risks which are only now being explored by scholars and practitioners. Lurking in the shadows behind any green building risk management strategy is how consequential damages - damages which may flow from a party's breach of a design, construction, or consulting contract - should be allocated among project stakeholders. This allocation is particularly critical on green building projects, whose unique and novel nature can create an increased potential for consequential damages. For example, green building tax credits, premium rents, and even energy savings might fall within the …

Individualism Submerged: Climate Change And The Perils Of An Engineered Environment, Juliet P. Stumpf, Daniel J. Chepaitis, Andrea Panagakis

Juliet P Stumpf

Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit of adaptive strategies such as large-scale geoengineering projects to reduce solar radiation or ameliorate sea-water inundation. In place of returning greenhouse gas emissions to natural levels, these approaches put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. In other words, they privilege mechanisms that increase each individual=s dependence on a collective decisionmaker and decrease the individual=s capacity to …

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction” — statutory construction that ignores legislation underlying goals. It constructs a new democratic theory for purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals …