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 …

Book Review, Environmental Law And Sustainability After Rio, David Wirth

David A. Wirth

Review of an accessible collection of essays from around the world, offering insights into legal and political issues surrounding environmental law and sustainability.

Peak Coordinating Bodies And Invasive Alien Species: Is The Whole Worth More Than The Sum Of Its Parts?, Sophie Riley

Sophie Riley

The development of regimes to regulate invasive alien species (IAS) has historically progressed in a fragmented and ad hoc manner. To remedy this situation the United States of America and Great Britain have introduced peak coordination bodies to draw their regimes together. However, in Australia, the Senate has expressed concern at the consequences of establishing such bodies, concluding that they merely duplicate regulation at the various levels of government; and, additionally, have the potential to destabilize Australia’s constitutional balance of powers. Using a comparative methodology based on the ‘functionalist’ approach, this paper undertakes a comparative study of IAS regulation in …

Legalising Environmental Leadership: A Comment On The Cjeu's Ruling In C-366/10 On The Inclusion Of Aviation In The Eu Emissions Trading Scheme, Sanja Bogojevic

Sanja Bogojević

This article examines the recent judgment in case C-366/10 in which the CJEU upheld the widened scope of the EU Emissions Trading Scheme, to include aviation, against a challenge by US airlines. At the core of this case stands the question of the extent to which, if at all, the EU is allowed to unilaterally control greenhouse gas emissions from aviation given that to date these are unregulated at an international level. As such, this is a case concerning the legitimacy of regional regulatory responses to global institutional failings. What the court does is to legitimise EU’s leading role in …

Evaluating Rules And How We Measure Their Effects, Rena I. Steinzor, Michael Patoka

Rena I. Steinzor

The Center for Progres­sive Reform undertook an empirical study of the Office of Information of Regulatory Affairs, the White House office that reviews every significant regulation issue by Executive Branch agencies. The study assembled an unprecedented portrait of its behav­ior during the decade from October 16, 2001, when notices of meetings with outside parties were first available on the Internet, until June 1, 2011. OIRA conducted 6,194 separate reviews of regulatory submissions, holding 1,080 meetings that involved 5,759 ap­pearances by outside par­ticipants. Both the final report and the database we assembled are available on the CPR website, at pro­gressivereform.org. OIRA …

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Michael Pappas

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

Protecting Coastal And Estuarine Resources- Confronting The Gulf Between The Promise And Product Of Environmental Regulation , Robert V. Percival

Robert Percival

No abstract provided.

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Robert Percival

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

The Unfinished Story Of The Rio Plus 20 Conference, John Dernbach

John C. Dernbach

Reporting on the 2012 U.N. Conference on Sustainable Development (or Rio+20 conference) has generally followed two lines: the conference was essentially a failure because of its tepid official response to the enormous and related problems of global environmental degradation and global poverty; and the conference successfully managed to mobilize hundreds of voluntary commitments and at least $513 billion for specific sustainability goals. A third story line has received little attention, however, and may redeem the account of official failure. This article addresses that story line, reviewing a series of processes set in motion by the parties to the conference that …

Review Of "Wild Ideas" By David Rothenberg, David N. Cassuto

David N Cassuto

No abstract provided.

The Law Of Words: Standing, Environment, And Other Contested Terms, David Cassuto

David N Cassuto

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective …

Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto

David N Cassuto

This Article examines the evolution of EPA's audit policy, explores the reasons for states' dissatisfaction with it, and then discusses whether the federal policy should have been issued as a rule under the Administrative Procedure Act (APA). Part I examines the evolution of the federal audit policy and then analyzes the strengths and weaknesses of the policy in its current form. Part II explores various types of evidentiary privilege and looks at the arguments for and against extending the privilege to audit reports. It then offers a similar analysis of the case for limited immunity, concluding that neither an expanded …

Get Smart To Go Green?, Alfred R. Light

Alfred Light

This article critiques the LEED Neighborhood Development rating system. As presently constituted, LEED-ND is unlikely to succeed in the way other LEED rating systems have. The rating system ignores important aspects of the quality of life in modern American suburbia such as security and privacy. If the proponents of smart growth and the new urbanism are to attract ordinary Americans to their quest for traditional neighborhoods, they must incorporate standards that recognize such missing dimensions. The aesthetics of a traditional neighborhood may not be completely congruent with factors which encourage environmental sustainability. LEED-ND ignores technological innovation, such as the implications …

It Takes A Global Sustainability Movement, John C. Dernbach

John C. Dernbach

No abstract provided.

Fairness In The Bay: Environmental Justice And Nutrient Trading, Rena I. Steinzor, Robert R.M. Verchick, Nicholas W. Vidargas, Yee Huang

Rena I. Steinzor

Maryland, Virginia, Pennsylvania and other states in the Chesapeake Bay region, with support from the Environmental Protection Agency, are working toward developing water quality trading programs intended to help meet federal pollution limits for the Bay. This white paper from the Center for Progressive Reform warns that even if a trading system succeeds in reducing overall pollution in the Bay, it might still have a dire effect on low-income and minority communities in the Bay region. If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a …

Agricultural Secrecy: Going Dark Down On The Farm: How Legalized Secrecy Gives Agribusiness A Federally Funded Free Ride, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This briefing paper examines the agricultural secrecy granted by section 1619 of the 2008 Farm Bill, its implications for transparency and oversight, and its impact on other federal agencies such as the U.S. Environmental Protection Agency (EPA). In an era of fiscal responsibility, tight budgets, and increasing pressure on the environment, the public has a right to know whether the U.S. Department of Agriculture (USDA) is making the best decisions about how to allocate public funds. Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, …

Setting The Bar For "Injury" In Environmental Exposure Cases: How Low Can It Go?, John C. Cruden, Carla Burke, John Guttmann, Robert V. Percival

Robert Percival

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of "injury" in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included …

Cercla In A Global Context, Robert V. Percival, Katherine H. Cooper, Matthew M. Gravens

Robert Percival

The article first reviews the essential features of CERCLA and how they have evolved over time through legislative amendments and judicial interpretation. The article then compares CERCLA's approach to that embodied in the European Union's 2004 Directive on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage ("ELD:). It then reviews the laws adopted by various countries, including EU members, to respond to releases of hazardous substances. The article then discusses several case studies of how different countries handled incidents of environmental contamination. It concludes by summarizing the comparative law of environmental remediation and its implications for …

Book Review: Environmental Protection And Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

This article reviews Environmental Protection and Human Rights (Cambridge University Press, New York 2011), a textbook co-authored authored by Donald K. Anton and Dinah L. Shelton. The book examines the growing recognition by scholars, activists, governments, and international and domestic tribunals of the linkages between environmental protection and human rights. Although intended for use as a law school textbook and accompanied by five online problem-oriented case studies, this comprehensive volume will also serve as a valuable reference for scholars and practitioners as well as an excellent survey for newcomers to the field.

The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation Of The Winters Doctrine, Sandi Zellmer, Justin Huber

Sandi Zellmer

The doctrine of implied federally reserved water rights, as established by Winters v. U.S., 207 U.S. 564 (1908), is important to the realization of federal land management goals. Recently, the doctrine’s ability to protect those goals when federal land is set aside for non-Indian purposes has been greatly limited by several poorly reasoned and result-oriented state court decisions. The primary factors that have led to these erosions of the Winters doctrine’s utility are: (1) the McCarran Amendment, 43 U.S.C. § 666, which allows states to force the U.S. to assert its federally reserved water rights claims in state court general …

Civil Litigation As A Tool For Regulating Climate Change: An Introduction, James R. May

James R. May

No abstract provided.

American Electric Power Company, Inc. V. State Of Connecticut: Brief Of Law Professors As Amici Curiae In Support Of Respondents, Stuart Banner, James R. May

James R. May

No abstract provided.

Vindicating Environmental Rights: Constitutional Protection For Present & Future Generations, Erin Daly, James May

James R. May

Our presentations will chronicle and assess the jurisprudential dimensions of constitutional environmental rights worldwide, encapsulating the preliminary findings of our book, Vindicating Environmental Rights: Constitutional Protection for Present & Future Generations, Cambridge, 2013), especially pertaining to provisions regarding rights to water, and procedural rights.

The constitutions of about 160 nations address environmental matters in some fashion, some by committing to environmental stewardship or the rights of nature, others by recognizing a basic right to a quality environment and still others by ensuring a degree of public participation in environmental decision making. Most people on Earth live under constitutions that protect …

Law And Lawyers In The Incident Command System, Clifford Villa

Clifford Villa

Since the 1970s, the Incident Command System (ICS) has provided an organizational framework for agencies to respond to incidents with timely and coordinated action. Use of ICS grew after September 11th as new laws, regulations, and directives required federal, state, and local responders to apply ICS to “all hazards,” including fires, floods, earthquakes, and oil spills. Emergency managers also use ICS to ensure security for schools, courthouses, and events such as Olympic Games. In the future, the use of ICS nationally and internationally will likely continue to expand in order to help public agencies and private organizations meet the threats …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

The Role Of Controversy In Nepa: Reconciling Public Veto With Public Participation In Environmental Decisionmaking, William Murray Tabb

William M. Tabb

No abstract provided.

Law, Ecosystem Valuation And Risk Allocation, David Hodas

David R. Hodas

Assigning a precise economic value to a non-market ecosystem service or environmental externality that damages an ecosystem or human health and welfare is challenging. However, if we tie fairness and equity to getting the “prices” exactly right, the best will become the enemy of the good and we will sacrifice ecosystem services on the alter of excessive exactness. In terms of equity and ecosystem services, the precision of any particular monetized value is less important than that there be a value, and that the value is incorporated into legal and policy decisions. Existing legal models and institutional frameworks were not …

A Global Law Of Sustainable Energy, David Hodas

David R. Hodas

The 1992 United Nations Conference on Environment and Development adopted the Rio Declaration on Environment and Development and Agenda 21 as the core principles and a program of action to achieve sustainable development; neither addressed energy as a central theme. In 2002, sustainable energy was a central theme at the World Summit on Sustainable Development and was addressed in detail in the Johannesburg Plan of Implementation. However, in 2012, neither climate change nor sustainable energy will be on Rio+20’s agenda. Ironically, 2012 is the U.N. International Year of Sustainable Energy For All. Rio+20 and the International Year are only loosely …

When Will America, World Make Sustainability A Priority?, John Dernbach

John C. Dernbach

No abstract provided.

Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang

Rena I. Steinzor

Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny. For example, Maryland charges less than Pennsylvania and Virginia for some pollutant discharge permits, and the state does not assess permit fees for municipalities despite the resources required to administer those permits. The penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. Maryland law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in …