Law Commons^™

The Oberlin Saga: Integrating North America’S Pipeline System And Potential Impacts On Hydrogen, Samuel Stephens

University of Miami Inter-American Law Review

This Article explores how the D.C. Circuit’s decision in City of Oberlin, Ohio v. FERC (2022) (Oberlin II) will impact future natural gas pipelines and potentially even future hydrogen infrastructure. While the decision reinforced support for integrating North American natural gas infrastructure, given uncertainties in how the United States will regulate the emerging hydrogen industry, there is a chance that the decision could be more expansive than what initially meets the eye. By continuing down the path of supporting North American energy integration, Congress, federal courts, and administrative agencies will help prepare the United States for an uncertain energy future. …

There Is No More New Frontier: Analyzing Wildfire Management Efforts In The United States, Morgan D. Gafford

Journal of Legislation

Congress needs to address the major wildfire problem by enacting more legislation that works alongside state governments and their own fire management goals. It is time for Congress to take wildfire suppression legislation more seriously and move it beyond the introductory phase. It is time for Congress and the other branches of the federal government to work together. It is time for everyone—but especially Congress—to fully comprehend the detrimental effects the most severe fires have on the environment, society, and the economy.

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Corporate Climate Litigation And Environmental Justice: How Green Amendments Can Be Used To Advance Accountability And Equity, Noah Hines

Indiana Journal of Law and Social Equality

The term “Green Amendment” was first coined by author Maya van Rossum in her 2017 book The Green Amendment: Securing Our Right to a Healthy Environment, in which she argues that modern environmental protection laws are fundamentally failing the most vulnerable people in society and proposes the creation of new constitutional rights as a solution. The provisions van Rossum argues ought to be added to state constitutions as “Green Amendments” are also sometimes called “Environmental Rights Amendments,” and generally enumerate the right of all citizens to a clean or healthy environment. Green Amendments currently exist in Pennsylvania, Montana, Illinois, Hawaii, …

"Common But Differentiated Responsibilities” In The Paris Agreement, Henrique Schneider

FIU Law Review

The Paris Agreement, adopted in 2015, epitomizes a political approach to climate action, devoid of scientific oversight at its inception. This political nature underscores its essence, emphasizing action over guaranteed results. With a foundation in "common but differentiated responsibilities" (CBDR), nations set diverse climate goals based on unique circumstances. However, this diversity complicates policy alignment and raises challenging questions, such as the feasibility of carbon border adjustments and intellectual property dilution. Analyzing CBDR within the Paris Agreement framework unveils its evolution, shaped by political negotiations and national actions. This study delves into the intricate interplay between politics, policy, and international …

Law And Literature In Pennsylvania: A Changing Landscape, Juliette Gaggini

Honors Theses

This thesis examines themes of American national identity perpetuated in Pennsylvania surrounding private property through historical, literary and legal analysis. Ideals of private property and land ownership are broken into three transitions throughout Pennsylvania history: the American frontier and initial land claiming by settlers, mass-deforestation and the introduction of widespread agriculture, and finally industrialization and the introduction of mining and fracking. Each of these transitions highlights the physical changes to the region and how they were influenced by American ideals of private property, productivity, and profitability.

Throughout this thesis, I analyze both literary and legal texts to examine societal beliefs …

Volo Foundation Lecture: Science, Free Speech, And Public Choice, Bret Stephens

FIU Law Review

In an era where science, free speech, and public choice clash, the historical unity between these pillars, as envisioned by America's founding fathers, is obscured. Examining Thomas Jefferson's reverence for Bacon, Locke, and Newton, reveals a past where reason and freedom intertwined. However, contemporary challenges, epitomized by the pandemic response, illustrate a divergence. Amidst censorship and expert dominance, the vital role of public scrutiny emerges. Acknowledging the fallibility of experts and embracing free speech as essential for reasoned discourse becomes imperative. To restore the balance, humility from scientific institutions, a renewed appreciation for free speech, and public courage are necessary …

Five Considerations For Twenty-First Century Climate Policy, Matthew G. Burgess

FIU Law Review

As the twenty-first century advances, society is entering a new phase regarding climate change. Impacts of climate change are becoming more salient in the present, rather than being only far-off in the future. Progress on flattening—and in many affluent countries, reducing—greenhouse gas emissions is also becoming salient, though the progress underperforms international targets. Slowing economic growth and major technological and geopolitical disruptions are creating new challenges and uncertainties. One of these challenges is a political climate of deep divisions and rising distrust in fact-finding institutions—a climate that is ripe for demagoguery. In the United States and some other countries, the …

Let The Sun Shine: Methods For Expansion Of Small-Scale Solar Electricity To Reduce Fossil Fuel Dependence, Ease Financial Energy Burdens, And Enhance Community Resiliency, Kara Consalo

Journal Publications

With so many benefits to solar electricity generation, it behooves state and local governments across America to explore laws and policies which encourage small-scale solar deployment. To help guide development of such laws and policies, Part I of this Article will explain the mechanics and the financing involved with the installation, operation, and maintenance of an on-site solar system. Part II explores the unique benefits and challenges of small-scale solar usage in low-income and weather vulnerable communities. Part III explains the legal and financial governance of American electric companies and how existing frameworks may lead utilities to erect hurdles to …

California And Europe Require Scope 3 Climate Disclosures Despite Sec Retreat, Michael B. Gerrard

Faculty Scholarship

In March 2022, the U.S. Securities and Exchange Commission (SEC) issued proposed regulations on disclosure of climate-related information by public companies, including their material Scope 3 greenhouse gas (GHG) emissions. This created a firestorm, drawing more than 24,000 comment letters.On March 6, 2024, the SEC issued its final rule, significantly narrowing the requirements and, notably, eliminating the Scope 3 disclosures. Companies that do not want to make Scope 3 disclosures should not rejoice and environmental advocates and others who do want to see such disclosures should not despair, because new requirements from both California and Europe do mandate this information …

Marine Protected And Conserved Areas: Beneficial Uses Of Artificial Intelligence, Kyla Lucey

Catholic University Journal of Law and Technology

The ocean is an invaluable tool to the survival of humankind and “produces half of the world’s oxygen, absorbs and sequesters one third of the carbon dioxide human activities emit, provides protection from extreme weather events, and provides a source of food and livelihoods.” Without it, communities would suffer, animals would die off, industries would disappear, and the world would be much worse off. The recommendations made here reflect the growing concern the world has adopted regarding the climate crisis. This concern is warranted as many animals have already disappeared, plants are dwindling, and the once wild areas of the …

New York Environmental Legislation In 2023, Michael B. Gerrard

Faculty Scholarship

In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article.

New York City Relaxing Environmental Review Rules For Housing Construction, Michael B. Gerrard

Faculty Scholarship

Faced with a severe housing shortage, New York City is exempting the construction of much new housing from the environmental review processes and taking many other steps to encourage such construction throughout the city. Several of these moves will also help the transition away from fossil fuels to renewable energy.

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 …

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 …

Major Questions (And Answers): A Call To Quiet The Quartet, Michael Reaves

Journal of the National Association of Administrative Law Judiciary

This Comment calls for action to quiet the Quartet—encouraging executive agencies to mitigate the pernicious impact of MQD. In Part I, this Comment discusses the political landscape in the area of climate action. Part II wades through the nearly forty-year doctrinal shift of delegation—from humble beginnings in a law review article from then-Judge Breyer in 1986, to the application of major questions principles at various stages of agency-deference analyses. Part III discusses the Quartet and its role in MQD as a determinative legal canon. Recent scholarship calls into question if there are multiple iterations of MQD, and whether the most …

Attaining The Right To Environment Through Environmental Impact Assessment, Umair Saleem

Dissertations & Theses

The thesis discusses the interconnection between the right to environment and environmental impact assessment (EIA), elaborating their depth and collective potential to effectively address most – if not all – of the complex and interconnected environmental challenges.

Firstly, the thesis explores the evolution of the environmental laws from the year 1900 and provides a unifying synthesis of the diverse environmental components, obligations, rights, and principles within international, regional, and national environmental laws. Secondly, it identifies the right to environment as a unifying and holistic right that integrates these environmental concepts and encapsulates comprehensive environmental protection. Thirdly, it provides a comparison …

Free, Prior Informed Consent And Extractive Industry: Indigenous Action Is The Past, Present, And Future Of Global Environmental Justice, Paige Bellamy

Environmental and Earth Law Journal (EELJ)

Free, Prior Informed Consent ("FPIC") from the UN Declaration on the Rights of Indigenous Peoples has been central to global Indigenous action against extractive industries’ harmful practices. Yet, it is often not fully recognized as a sovereign right, which hinders Indigenous peoples’ ability to use it to its full potential. Historically, FPIC has been deemed a consultation right, not a right to “veto” industry action on Indigenous land. Countries that have interpreted FPIC as a mere consultation right have allowed further exploitation of Indigenous peoples, usually leading to environmental and humanitarian disasters. However, when courts have respected the right to …

Nuclear Powered International Commercial Shipping: A Note On The Greenest Solution And The Challenges Of International Regulation, Rebecca Mcreynolds

Environmental and Earth Law Journal (EELJ)

To meet the environmental demands imposed by the International Maritime Organization, the commercial shipping industry’s use of predominantly marine diesel fuel will need to change drastically. Current answers to these environmental concerns include the use of biofuels, battery packs, and liquified natural gas, but these are short-term solutions that will not fully meet environmental demands in the long run. Nuclear propulsion, however, is a tried-and-true resolution. The use of nuclear energy results in virtually no environmental impact and has successfully been used by the US Navy for the past 75 years. Unfortunately, the commercial use of nuclear propulsion is stalled …

Lone Star Crime: The Criminal Enforcement Of Environmental Law In The State Of Texas, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy

St. Mary's Law Journal

Most transgressions of environmental law in the United States are remedied with civil or administrative tools. When crimes involve significant harm or culpable conduct, criminal enforcement tools may be applied. With the importance of environmental criminal enforcement for punishing offenders and deterring future offenses, we still have little empirical understanding of this phenomenon in Texas. We use content analysis of 2,588 federal environmental criminal prosecutions that result from EPA criminal investigations from 1983 to 2019 and select all prosecutions occurring in Texas. Our approach allows us to explore prosecution patterns over time, examine charging and sentencing trends, and draw out …

Fostering Resilience Within Ecological Civilization: Contributions Of Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

My presentation will examine water, to illustrate the questions that Ecological Civilization presents. I shall address five points: (1) Often proposals for attaining Ecological Civilization raise issues relevant to environmental law, but do not examine the roles that environmental law can serve; (2) environmental law is essential to resolving unsustainable water management issues; (3) scientific studies indicate that trends in global environmental degradation limit the time available for implementing reforms to attain Ecological Civilization; (4) environmental legal systems for environmental impact assessment (EIA) can accelerate efforts to attain Ecological Civilization; and (5) For Ecological Civilization to ensure a firm foundation …

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

Toward A Tribal Role In Groundwater Management, Alexandra Fay

American Indian Law Journal

This Article considers the Agua Caliente groundwater litigation a decade since its inception. It recounts the most recent developments in the case, notably the move to mediation and the strategic work that brought the water districts to the table. The Article places this monumental case in context: in the history of colonization and tribal-state relations, the present climate crisis, and the State of California’s groundwater management regime. The Article ultimately outlines the present opportunity to reimagine the role of tribes in groundwater management.

Private Environmental Nudges, Anthony Moffa

Dickinson Law Review (2017-Present)

A few years ago, before the onset of a global pandemic, I noticed that my preferred Portland, ME coffee shop—Tandem Coffee Roasters—implemented a new policy. Upon ordering a beverage, the barista asked if I brought my own mug. They informed me that, if had I not, I could purchase a paper, disposable vessel from the shop for twenty-five cents. Some might (understandably) ask, “Does coffee not come in a cup anymore?” The shop implemented what this paper dubs a “private environmental nudge,” a subset of policies that define private environmental governance (PEG)—the actions taken by nongovernmental entities to achieve traditional …

Untethering Umvs From Vessels: Why The United States Should Construct A New Environmental Legal Scheme For Unmanned Maritime Vehicles, Lindsay I. Mccarl

Dickinson Law Review (2017-Present)

International and domestic laws and regulations, and in particular those addressing environmental protections related to the world’s oceans, have no clear application to unmanned maritime vehicles (UMVs). Instead, legal scholars have attempted to fit UMVs into current legal schemes in a piecemeal manner that UMVs practically and realistically cannot comply with. UMVs are inherently different than their manned counterparts and therefore require a unique legal framework separate and apart from manned vessels. Without its own legal scheme, the United States Navy and other organizations will not be able to realize the full potential of UMVs—not only for their military operational …

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 …

Sea Level Rise And Maritime Delimitation In The Eastern Caribbean: A Comparative Approach, Rosemarie Cadogan

American University Law Review

Thank you, Mr. Moderator. Let me just start by thanking the organizers today for having me on the program, and I want to extend to everyone my gratitude for having me here today. I am going to look at, as the title suggests, sea level rise and maritime delimitation in the Eastern Caribbean, and I am going to take a comparative approach as I compare it with the Pacific–South Pacific region. I am going to take it that all protocols have been observed, and, in the interest of time, I will go straight through to my presentation with the one …

Algunas Reflexiones Sobre La Condicion De Estado En Relacion Con La Elevacion Del Nivel Del Mar, Juan Jose Ruda Santolaria

American University Law Review

Estimados amigos y amigas:

Deseo, en primer lugar, agradecer a los promotores de esta iniciativa por su amable invitación y compromiso con el tratamiento de la importante temática que nos convoca. Al mismo tiempo, quiero destacar mi satisfacción por participar en esta actividad y hacerlo además con personas muy valiosas, por quienes siento especial aprecio, así como recalcar que voy a compartir con ustedes algunas reflexiones sobre la condición de estado en relación con la elevación del nivel del mar de carácter personal, es decir, que no comprometen a la Comisión de Derecho Internacional de las Naciones Unidas y son …

Climate Chauvinism: Rethinking Loss & Damage, Nadia B. Ahmad, Victoria Beatty

Faculty Scholarship

No abstract provided.

India’S Use Of Public/Private Partnerships To Promote Rapid Expansion Of Solar Electricity Facilities, Kara Consalo

Journal Publications

This Article will explore the use of PPPs to encourage the flow of private capital and expertise toward development of low-carbon, low pollution, sustainable energy generation in India to achieve the country's ambitious goal of creating 175 gigawatts of renewably sourced electricity by 2022. The lessons in India's extensive use of PPPs to achieve such ambitious electricity goals should serve as a model for other governments to engage the private sector to successfully develop solar and other renewable energy projects with limited risk but with significant benefits for their citizens.