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Articles 1 - 30 of 61
Full-Text Articles in Law
The Trees Speak For Themselves: Nature’S Rights Under International Law, Samantha Franks
The Trees Speak For Themselves: Nature’S Rights Under International Law, Samantha Franks
Michigan Journal of International Law
This note argues that the United Nations should center nature’s rights in the upcoming Global Pact on the Environment, solidifying the patchwork of international environmental law and encouraging domestic protection of the environment. Part II explores the current state of international environmental law, outlining the ways in which the doctrine remains incomplete. Part III establishes that Earth jurisprudence is an effective method to fill the gaps existing within traditional international environmental law. Part IV emphasizes the importance of soft law in international law. It draws a parallel between the creation of the Universal Declaration of Human’s Rights and a potential …
Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann
Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann
Articles
With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.
Making The Case For A Right To A Healthy Environment For The Protection Of Vulnerable Communities: A Case Of Coal-Ash Disaster In Puerto Rico, Sarah Dávila-Ruhaak
Making The Case For A Right To A Healthy Environment For The Protection Of Vulnerable Communities: A Case Of Coal-Ash Disaster In Puerto Rico, Sarah Dávila-Ruhaak
Michigan Journal of Environmental & Administrative Law
The connection between the environment and human rights is not a surprising one. The enjoyment of human rights depends on a person’s ability to live free from interference and to have his or her rights protected. The interdependence of human rights and the protection of the environment is manifested in the full and effective enjoyment of the right to a healthy environment. This article argues that in order to protect vulnerable persons and communities facing environmental harm, a human rights framework—specifically the right to a healthy environment—must be applied. A human rights approach complements environmental justice work, recognizing that individuals …
Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum
Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum
Michigan Journal of Environmental & Administrative Law
The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the …
The Wild And Scenic Rivers Act At 50: Overlooked Watershed Protection, Michael C. Blumm, Max M. Yoklic
The Wild And Scenic Rivers Act At 50: Overlooked Watershed Protection, Michael C. Blumm, Max M. Yoklic
Michigan Journal of Environmental & Administrative Law
The Wild and Scenic Rivers Act (WSRA) marked its fiftieth anniversary in 2018 without much fanfare. The WSRA has been somewhat overshadowed by the Wilderness Act, which preceded it by four years, and by the National Environmental Policy Act and the pollution control statutes which followed in the 1970s. But the WSRA was a significant conservation achievement, has now extended its protections to over 200 rivers, and has the potential to provide watershed protection to many more in the future. This article explains the statute and its implementation over the last half-century as well as a number of challenges to …
New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During The First Two Years Of The Trump Administration, David M. Uhlmann
New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During The First Two Years Of The Trump Administration, David M. Uhlmann
Other Publications
The latest data from the Environmental Crimes Project at the University of Michigan Law School shows a dramatic drop in pollution prosecutions during the first two years under President Donald J. Trump. The data, which now includes 14 years of cases from 2005–2018, shows a 70 percent decrease in Clean Water Act prosecutions under President Trump, as well as a more than 50 percent decrease in Clean Air Act prosecutions. The data again shows that most defendants charged with pollution crime commit misconduct involving one or more of the aggravating factors identified in my previous scholarship, so prosecutors continue to …
Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh
Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh
Michigan Journal of Environmental & Administrative Law
The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests …
Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson
Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson
Articles
an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.
The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch
University of Michigan Journal of Law Reform
Federalism, by its nature, is a segmented system of governance. The Canadian and American constitutional orders are divided along very clear lines of jurisdictional authority between levels of government. Environmental issues, by their nature, are holistic in scope—they transcend borders, governments, jurisdictions, and authorities. For this reason, one might assume that a unitary state would be better positioned to tackle them. Is this justified? This Article examines the Chinese unitary state, in comparison to the federalist systems in Canada and the United States of America, to discern whether a unitary government can better manage issues plaguing the environment.
Tiny Things With A Huge Impact: The International Regulation Of Nanomaterials, Dario Picecchi
Tiny Things With A Huge Impact: The International Regulation Of Nanomaterials, Dario Picecchi
Michigan Journal of Environmental & Administrative Law
Mounting evidence demonstrates that nanotechnology and nanomaterials impose severe environmental risks. To minimize these risks, the usage and handling of certain nanomaterials could be addressed under existing treaties such as the Rotterdam Convention, the Stockholm Convention, and the Basel Convention. However, even if existing treaties govern the handling of certain nanomaterials, no treaty effectively regulates all the specific challenges that nanomaterials pose to the global environment. Consequently, a completely new regulatory instrument is required. An international organization could take responsibility for developing and promoting such a nanospecific international legal framework. By incorporating the precautionary principle, a technology transfer, research cooperation, …
Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick
Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick
Michigan Journal of Environmental & Administrative Law
Since the early discoveries of the Spindletop, King Ranch, and East Texas oil fields, the oil and gas industry has dominated the Texas economy. The industry has also played an important role in shaping state politics and culture. The oil boom of the early 1900s created thousands of jobs for ordinary workers and immense wealth for a select few. Early Texas oil barons made headlines because of their lavish lifestyles and often extreme political beliefs. Legendary wildcatter H.L. Hunt typified this oil-fueled exuberance. Hunt became one of the eight richest individuals in the United States after securing mineral rights to …
Making Ideas Matter: Remembering Joe Sax, Mark Van Putten
Making Ideas Matter: Remembering Joe Sax, Mark Van Putten
Michigan Journal of Environmental & Administrative Law
Joe Sax made his ideas matter. He had consequential ideas that shaped an entire field—in his case, environmental law—both in theory and in practice. His scholarship was first rate and has enduring significance in academia, as evidenced by the fact that two of his law review articles are among the 100 most frequently cited articles of all time. Others are more competent to review the importance of his scholarship; my experience in environmental advocacy is more pertinent to evaluating his impact on environmental policymaking. Here, his ideas have had a greater impact than any other legal academic. As the New …
Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon
Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon
Michigan Journal of Environmental & Administrative Law
This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …
Protecting Human Health And Stewarding The Environment: An Essay Exploring Values In U.S. Environmental Protection Law, Tracy Bach
Michigan Journal of Environmental & Administrative Law
The purpose of this conference is to explore “the relationship between environmental protection and public health and how it should inform our efforts to become better stewards of the environment.” No one would disagree with the assertion that during the last forty years of federal environmental protection, air and water quality have improved and led to concomitant improvements in human health. Exploring the contours of this “relationship,” Environmental Protection Agency (EPA) Administrator Gina McCarthy said in her keynote speech that “[t]he thing is, the word ‘relationship’ is too neutral. The link between the health of our planet and the health …
Human-Centered Environmental Values Versus Nature-Centric Environmental Values--Is This The Question?, Zygmunt J.B. Plater
Human-Centered Environmental Values Versus Nature-Centric Environmental Values--Is This The Question?, Zygmunt J.B. Plater
Michigan Journal of Environmental & Administrative Law
The challenging background context for much of the discussion and cogitation in the panels and pages of this conference is the unfortunate fact that environmental protection law in virtually all its manifestations is currently faring rather poorly in the public policy arenas of national government. From the public health hazards of residual substances in consumer goods and human breast milk to the mighty troubles of human-caused climate disruption, many of the most significant structures of societal governance are locked in political and financial dysfunctions and impasses. Given the conference’s goal to “explore more deeply the relationship between environmental protection and …
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Michigan Journal of Environmental & Administrative Law
Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly …
Toward A Sustainable Future: An Environmental Agenda For The Second Term Of The Obama Administration, David M. Uhlmann
Toward A Sustainable Future: An Environmental Agenda For The Second Term Of The Obama Administration, David M. Uhlmann
Other Publications
Much was at stake in the Presidential election of 2012, which was marked by heated debate over the trajectory of the economy, the expiration of the Bush tax cuts, and the fat of the President's health care plan. The candidates disagreed about nearly every issue from foreign policy and the war on terror to a woman's right to choose and same-sex marriage. Lost amid the din and never mentioned in the Presidential debates or most of the campaign speeches was another divisive topic: how our environmental laws and policies should address global climate change and chart a sustainable future for …
Closing The Regulatory Gap In Michigan's Public Trust Doctrine: Saving Michigan Millions With Statutory Reform, Kelsey Breck
Closing The Regulatory Gap In Michigan's Public Trust Doctrine: Saving Michigan Millions With Statutory Reform, Kelsey Breck
University of Michigan Journal of Law Reform
The Great Lakes are some of Michigan's most valuable and important environmental resources. The public trust doctrine requires Michigan to protect and preserve the lands along the shores of the Great Lakes for the use of future generations. Unfortunately, the public trust doctrine in Michigan is in disarray and as a result, public and private rights to the lands along the Great Lakes are poorly delineated. This Note presents an economic argument for why the public trust doctrine should be reformed to better define public and private rights to the land along Michigan's Great Lakes. It also suggests a statutory …
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
Michigan Journal of Environmental & Administrative Law
The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns …
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann
Articles
When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …
After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann
After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann
Articles
The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …
Establishing A "Due Care" Standard Under The Lacey Act Amendments Of 2008, Rachel Saltzman
Establishing A "Due Care" Standard Under The Lacey Act Amendments Of 2008, Rachel Saltzman
Michigan Law Review First Impressions
The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's …
Crimes On The Gulf, David M. Uhlmann
Crimes On The Gulf, David M. Uhlmann
Articles
The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”
Canada-United States Cooperative Approaches To Shared Marine Fishery Resources: Territorial Subversion?, Ted L. Mcdorman
Canada-United States Cooperative Approaches To Shared Marine Fishery Resources: Territorial Subversion?, Ted L. Mcdorman
Michigan Journal of International Law
This Essay will focus on how Canada and the United States have both succeeded and failed in adopting cooperative approaches to managing ocean fishery resources. A critical factor that has influenced these efforts is the introduction of an international legal construct dictating that States have exclusive sovereign rights respecting all marine living resources within 200 nautical miles of their shores. Cooperative approaches to managing transboundary marine living resources between Canada and the United States are necessary for two reasons. First, in the case of marine living resources, the resource pays scant attention to human-constructed national boundaries. Put another way, marine …
Conserving Marine Wildlife Through World Trade Law, Eric A. Bilsky
Conserving Marine Wildlife Through World Trade Law, Eric A. Bilsky
Michigan Journal of International Law
Part I of this Essay marshals the evidence that fisheries around the world are in peril from destructive fishing practices. Part II argues that most fisheries management regimes are ineffective at counteracting the political pressures and economic incentives that lead to unsustainable fishing. Part III makes the case that government subsidies are major enablers of overfishing. The fourth and final Part discusses the continuing efforts to use international trade regulation to eliminate overfishing subsidies and halt the collapse of the world's marine fish populations.
Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff
Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff
Michigan Journal of International Law
This Essay assesses challenges that arise when marine territorial boundaries do not encompass the appropriate assemblage of resources and relationships necessary for effective authority and management. It reviews the manner in which certain offshore resource uses have been "quasi-territorialized" by the application of other forms of jurisdiction. It also highlights regime-jurisdiction-private interest-oriented responses to territory-oriented challenges in the form of assemblages of authority, interests, space, and time. Given the scalar progression of the links in the discussion, the assessment moves from international principles to exercises of national sovereignty to domestic administration of space and resources to private legal interests.
Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann
Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann
Articles
The Rivers and Harbors Act of 1899 often is considered the first environmental criminal statute because it contains strict liability provisions that make it a misdemeanor to discharge refuse into navigable waters of the United States without a permit. When Congress passed the Rivers and Harbors Act, however, it was far more concerned with preventing interference with interstate commerce than environmental protection. For practical purposes, the environmental crimes program in the United States dates to the development of the modem environmental regulatory system during the 1970s, and amendments to the environmental laws during the 1980s, which upgraded criminal violations of …
Strange Bedfellows, David M. Uhlmann
Strange Bedfellows, David M. Uhlmann
Articles
Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.
The Role Of Local Governments In Great Lakes Environmental Governance: A Canadian Perspective, Marcia Valiante
The Role Of Local Governments In Great Lakes Environmental Governance: A Canadian Perspective, Marcia Valiante
University of Michigan Journal of Law Reform
Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration …