Law Commons^™

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Bolstering Juliana: Enforceability Of Environmental Claims Through International Treaty Obligations In U.S. Courts, Lindsey Laielli

St. Mary's Law Journal

Abstract forthcoming.

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

When Fast-Tracking Slows You Down: Reconsidering Nationwide Permit 12 Use For Large-Scale Oil Pipelines, Megan Rulli

Dickinson Law Review (2017-Present)

The consumption of oil pervades everyday life in America. The network of pipelines transporting oil from field to consumer is largely invisible. Until a major news event bursts pipelines onto headlines, this indispensable and invisible system fuels the country without fanfare. At the same time, concern over global climate change has made new large-scale projects for fossil fuel extraction and consumption highly controversial. The Keystone XL (“KXL”) pipeline was originally designed to transport crude oil extracted from oil sands in Canada to the Gulf of Mexico for international export. After more than a decade of false starts, the project currently …

The United States Climate Change Policies And Covid-19: Poisoning The Cure, Carolina Arlota

Pace Law Review

Climate change is complex during the best of times. It is commonly conceptualized as the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such measures. This conceptualization illustrates the high transaction costs involved in domestic policies as well as in international agreements addressing climate change, and it is of academic and practical interest. As such, this Article discusses the current challenges that climate change policies face, focusing on the linkages between the climate change policies of the Trump administration …

Vecinos Para El Bienestar De La Comunidad Costera V. Ferc, Malcolm M. Gilbert

Public Land & Resources Law Review

The D.C. Circuit Court remanded three Brownsville, TX LNG approval orders to FERC for failing to adequately explain conclusions around environmental justice and climate concerns. The Court ordered FERC to reevaluate whether the projects are in the public interest. The LNG terminals and pipeline will disproportionately impact low-income, minority communities, and substantial greenhouse gas emissions from production and export will contribute to anthropogenic climate change. This case note explores the role that environmental justice and climate change play in federal agency decision-making processes, analyzes the legal framework for the Court's decision, and discusses how the outcome of this litigation could …

Gimme A Break: The Patent Term Restoration Act Should Give Environmental Innovators A Chance To Catch A (Cleaner) Breath, Gabrielle Gravel

Journal of Intellectual Property Law

There is an abundance of frightening data painting a grim picture of Earth’s future. Humans have undoubtedly left a carbon footprint so deep, it will take drastic measures to undo our damage. To continue enjoying life as we know it, we humans must shift our focus to the powerful minds of creators and engineers to find ways to untangle our manmade webs. To generate interest and attract the best and brightest to do the challenging and time-consuming work of environmental inventions, the first step is to provide a greater incentive. This note calls upon the U.S. Patent and Trademark Office …

Cows V. Capitalists: Visions Of A Post-Carbon Economy, Alison Peck

Journal of Food Law & Policy

I was tempted to entitle this book review something like, "Why the Farm Bill Is the Key to Our Energy Future (Hint: It's Not About Ethanol, Methane Emissions, or Carbon Sinks)." But in addition to being too long to fit across the header of a law review page, such a title would have been slightly misleading. Actually, in Simon Fairlie's view, our future is about ethanol, methane emissions, and carbon sinks - but not in the way our current agricultural policies understand and deal with these subjects.

Global Food Security: In Our National Interest, David P. Lambert

Journal of Food Law & Policy

All Americans have a direct stake in the problem of global hunger, which has many dimensions. For most of us it is a profound moral issue, and we are guided by our faith to respond.

The Future Of The Safe Rule And Achieving More Climate-Friendly Cafe Regulations, Maximo Lacerca-Desrosiers

Golden Gate University Environmental Law Journal

On April 30, 2020, the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) issued a final rule called the “Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger and Light Trucks” (“SAFE Rule”) to amend the Corporate Average Fuel Economy (“CAFE”) ratings. CAFE standards are regulations first enacted nearly fifty years ago to promote greater fuel efficiency in car manufacturing through a system of incentives and penalties. While the CAFE standards have been revised many times over the years, the SAFE Rule rolled back the more stringent 2012 CAFE standards that sought to align fuel …

Trade And Environment In Nafta’S Replacement: An Old Gas Guzzler Gets A Paint Job, Geoffrey Garver

Golden Gate University Environmental Law Journal

The North American Free Trade Agreement (NAFTA)2 is now history, and, depending on where you are, as of July 1, 2020, the Canada- United States-Mexico Agreement (CUSMA) in Canada, the United- States-Mexico-Canada (USMCA) in the United States, or the Tratado entre M´exico, Estados Unidos y Canad´a (T-MEC) is in force. The renegotiation of NAFTA fulfilled candidate Donald Trump’s promise to scrap or renegotiate NAFTA in order to protect and restore United States jobs and industrial capacity and increase economic growth, themes that consistently helped define his trade agenda politically as President. But what about the environment? When NAFTA was finalized …

Ancestral Comprehensions For A Policy For The Future Of The Earth: The Narrative Of The South American Andes In The Face Of The Global Climate Crisis, Erick Pajares G., Eduardo Calvo B., Jorge Iván Palacio P., Juan José Munar M., Carlos Loret De Mola, Darío Espinoza M., Yuri Godoy P., Gustavo Mora R.

Pace Environmental Law Review

No abstract provided.

Addressing Correlations Between Gender-Based Violence And Climate Change: An Expanded Role For International Climate Change Law And Education For Sustainable Development, Achinthi C. Vithanage

Pace Environmental Law Review

No abstract provided.

The Carbon Storage Future Of Public Lands, Tara Righetti, Jesse Richardson, Kris Koski, Sam Taylor

Pace Environmental Law Review

To meet the climate and energy goals set forth by the Biden Administration and the Paris Agreement, the United States must dramatically reduce carbon emissions. Use of public lands for carbon dioxide removal activities, including carbon capture, utilization, and storage (CCUS), has the potential to advance carbon reduction goals and concurrently provide economic revitalization opportunities to communities dependent on fossil industries. Current federal law presents numerous challenges and opportunities associated with utilization of federal pore space for CCUS. Although federal grant programs and tax incentives encourage deployment of CCUS technologies, legal and land-management issues related to public lands have received …

"All I Do Is Win": The No-Lose Strategy Of Cafo Regulation Under The Caa, Karl J. Worsham

Journal of Food Law & Policy

Corporate farms, often known as concentrated animial feeding operations ("CAFO'), provide inexpensive animal products but do so by externalizing the cost of their operation in the form of environmental harms and risks to human health. This article explores one possible approach to mitigating CAFO-caused harms. It argues that CAFO regulation under any one of three Clean Air Act ("CAA ") programs will result in net benefits, not just for air quality, but also for other CAFO-caused harms and thus, that CAA regulation of CAFOs is a no-lose strategy. The article then goes further to conclude that, while regulation under any …

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

Reimagining Exceptional Events: Regulating Wildfires Through The Clean Air Act, Emily Williams

Washington Law Review

Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property.

The Clean Air Act (CAA) is designed to regulate air pollution to protect public health, yet it exempts wildfire smoke through the exceptional events designation while imposing strict regulations on prescribed burns. Congress and the Environmental Protection …

Is Climate Change A Threat To International Peace And Security?, Mark Nevitt

Michigan Journal of International Law

The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.

Impact Assessment, Sustainability, And Climate Change: Lessons From Lower Churchill, Adebayo Majekolagbe

Dalhousie Law Journal

The attainment of sustainability is the overarching objective of impact assessment (IA). Over the years, IA has evolved from being a predominantly biophysical- environment assessment venture to a multicentric undertaking including hundreds of IA modes. IA’s proliferation has been attributed to the inadequacy of previously dominant modes (e.g. Environmental Impact Assessment and Social Impact Assessment) to cater to other areas of humanity’s concerns or recent phenomena. Climate change is one of such phenomena and the conceptualization of climate change impact assessment has been the response of the IA movement. Drawing lessons from the Lower Churchill project in Newfoundland and Labrador …

Deforestation Of The Brazilian Amazon Under Jair Bolsonaro’S Reign: A Growing Ecological Disaster And How It May Be Reduced, Richard Perez

University of Miami Inter-American Law Review

No abstract provided.

The Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …

The History And Future Of Genetically Modified Crops: Frankenfoods, Superweeds, And The Developing World, Brooke Glass-O'Shea

Journal of Food Law & Policy

In a 1992 letter to the New York Times, a man named Paul Lewis referred to genetically modified (GM) crops as "Frankenfood," and wryly suggested it might be "time to gather the villagers, light some torches and head to the castle." Little did Lewis know that his neologism would become the rallying cry for activists around the world protesting the dangers of genetic engineering. The environmental activist group Greenpeace made great use of the "Frankenfood" epithet in their anti-GM campaigns of the 1990s, though they have since backed away from the word and the hardline stance it represents. But genetically …

How A Universal Definition May Shape The Looming Climate Refugee Crisis, Alexandra Haris

Human Rights Brief

No abstract provided.

Central Banks And Climate Change, Christina P. Skinner

Vanderbilt Law Review

Central banks are increasingly called upon to address climate change. Proposals for central bank action on climate change range from programs of “green” quantitative easing to increases in risk-based capital requirements meant to deter banks from lending to climate-unfriendly business. Politicians and academics alike have urged climate risk as both macroeconomic and financial stability risk. Relative to counterparts abroad, the U.S. central bank—-the Federal Reserve—-has been more measured in its response.

This Article offers a legal explanation why. It urges that, despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

Let The Earth Teach You Torah: Sustainability In Jewish Law, Itzchak E. Kornfeld

Touro Law Review

No abstract provided.

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Dickinson Law Review (2017-Present)

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a onedimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …