Law Commons^™

Mother Drone, Mother Nature: The Griffon Vulture And Israel’S Military, Irus Braverman

Journal Articles

No abstract provided.

Grid Reliability Through Clean Energy, Hannah Jacobs Wiseman, Alexandra Klass, Joshua Macey, Shelley Welton

Journal Articles

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.

This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. …

Addressing Climate Impacts In Alaska Native Tribes: Legal Barriers For Community Relocation Due To Thawing Permafrost And Coastal Erosion, Lara Fowler, Ekrem Korkut, Kathleen E. Halvorsen, David Holen, E. Lance Howe, Guangqing Chi

Journal Articles

Rural communities is Alaska—predominantly Alaska Native Tribes—are at the forefront of climate change impacts and climate justice concerns in the United States. According to the 2019 Alaska statewide threat assessment report, 29 communities are currently experiencing significant climate change-related erosion. Further, 38 communities faces significant flooding, and 35 have major problems with thawing permafrost. Some Alaska Native communities have explored community relocation to adapt to these impacts. Because federal law does not recognize gradual environmental impacts like thawing permafrost and coastal erosion as disasters, these communities are ineligible for disaster funding and struggling with how to adapt to the very …

Never Look Back: Non-Regression In Environmental Law, Nicholas S. Bryner

Journal Articles

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so.

Built in environmental legal frameworks in both international and domestic law is a principle of non-regression—no …

Humility, Climate Change, And The Pursuit Of Scientific Truth, John Nagle

Journal Articles

This Essay begins with the understanding that environmental law could not exist without science. The tolerable amount of pollution, the proximity of a species to extinction, and the threats presented by climate change are just some of the questions that environmental law depends on science to answer. Often environmental law insists that science alone is relevant to a particular regulatory action, such as an air pollution standard or an endangered species listing. It is not surprising, therefore, that many disputes about environmental law are really disputes about science.

Science, however, does not always yield the information that environmental law needs …

On Foxes And Hedgehogs, Roger P. Alford

Journal Articles

This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.

Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero

Journal Articles

The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …

Environmental Justice, Settler Colonialism, And More-Than-Humans In The Occupied West Bank: An Introduction, Irus Braverman

Journal Articles

Our special issue provides a first-of-its kind attempt to examine environmental injustices in the occupied West Bank through interdisciplinary perspectives, pointing to the broader settler colonial and neoliberal contexts within which they occur and to their more-than-human implications. Specifically, we seek to understand what environmental justice—a movement originating from, and rooted in, the United States—means in the context of Palestine/Israel. Moving beyond the settler-native dialectic, we draw attention to the more-than-human flows that occur in the region—which include water, air, waste, cement, trees, donkeys, watermelons, and insects—to consider the dynamic, and often gradational, meanings of frontier, enclosure, and Indigeneity in …

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …

A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn

Journal Articles

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of "dormant" preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid …

Don't Go In The Water: On Pathological Jurisdiction Splitting, Jamison E. Colburn

Journal Articles

Waters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind.

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Journal Articles

Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …

Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan

Journal Articles

No abstract provided.

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Journal Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and land-use implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …

The Societal Impacts Of Climate Anomalies During The Past 50,000 Years And Their Implications For Solastalgia And Adaptation To Future Climate Change, Edward P. Richards

Journal Articles

No abstract provided.

Taking The Public Out Of Public Lands: Shifts In Coal-Extraction Policies In The Trump Administration, Jessica Owley

Journal Articles

No abstract provided.

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks

Journal Articles

Climate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate change impacts; (2) consider conservation tools other than perpetual …

Exploiting Conservation Lands: Can Hydrofracking Be Consistent With Conservation Easements?, Jessica Owley, Collin Doane

Journal Articles

No abstract provided.

Bleached! The Catastrophe Management Of Corals, Irus Braverman

Journal Articles

Corals have recently emerged as both a sign and a measure of the imminent catastrophic future of life on earth and, as such, have become the focus of intense conservation management. Bleached! draws on in-depth interviews and participatory observations with coral scientists and managers to explore the management of the corals’ ecological catastrophe to come. The article starts by describing the unique life of corals, the importance of calculability in catastrophe management, and the coral scientists’ preoccupation with classifying, counting, and seeing in their attempt to comprehensibly monitor corals and anticipate their decline. Algorithmic models and elaborate temporal analyses are …

Enhancing Conservation Options: An Argument For Statutory Recognition Of Options To Purchase Conservation Easements (Opces), Federico Cheever, Jessica Owley

Journal Articles

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long …

Public Access To Spatial Data On Private-Land Conservation, Jessica Owley

Journal Articles

Information is critical for environmental governance. The rise of digital mapping has the potential to advance private-land conservation by assisting with conservation planning, monitoring, evaluation, and accountability. However, privacy concerns from private landowners and the capacity of conservation entities can influence efforts to track spatial data. We examine public access to geospatial data on conserved private lands and the reasons data are available or unavailable. We conduct a qualitative comparative case study based on analysis of maps, documents, and interviews. We compare four conservation programs involving different conservation tools: conservation easements (the growing but incomplete National Conservation Easement Database), regulatory …

Beyond Zero-Sum Environmentalism, Shalanda Baker, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon M. Roesler, Jonathan Rosenbloom, J. B. Ruhl, James Salzman, Inara Scott, David Takacs

Journal Articles

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment;” “markets versus regulation;” “enforcement versus incentives.” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with …

Anticipating Endangerment: The Biopolitics Of Threatened Species Lists, Irus Braverman

Journal Articles

The last two decades have witnessed an explosion of national and global lists of threatened and endangered species. This article draws on interviews with prominent list managers and observations of their assessments to explore the scientific practices of list-making in the context of species conservation. Delving into the complex calculations of risk and threat that take place in the process of ranking nonhuman species based on their probability of extinction, the article explores the threatened species list as a biopolitical technology of catastrophe governance. My focus on two prominent lists — the IUCN Red List of Threatened Species and NatureServe’s …

Mineral Estate Conservation Easements: A New Policy Instrument To Address Hydraulic Fracturing And Resource Extraction, Robert B. Jackson, Jessica Owley, James Salzman

Journal Articles

In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.

We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article …

Biopolarity: Coral Scientists Between Hope And Despair, Irus Braverman

Journal Articles

Biopolarity draws on extensive interviews with dozens of coral scientists and on my observations of the international coral reef symposium in Hawaii on June 2016 to document the oscillation of coral scientists between hope and despair in their imaginations of coral futures. At one extreme of the oscillation are catastrophic predictions of the death of corals by the mid-21st century. In this despondent narrative, corals are getting fried and nothing short of an abrupt (and unlikely) shift in how humans use fossil fuels will save them. The pessimistic trajectory of this swing of the pendulum comes replete with daunting maps, …

Trends In Private Land Conservation: Increasing Complexity, Shifting Conservation Purposes And Allowable Private Land Uses, Jessica Owley, Adena R. Rissman

Journal Articles

The terrain of private-land conservation dealmaking is shifting. As the number of acres of private land protected for conservation increases, our understanding of what it means for a property to be "conserved" is shifting. We examined 269 conservation easements and conducted 73 interviews with land conservation organizations to investigate changes in private-land conservation in the United States. We hypothesized that since 2000, conservation easements have become more complex but less restrictive. Our analysis reveals shifts in what it means for private land to be "conserved." We found that conservation easements have indeed become more complex, with more purposes and terms …

Enhancing Conservation Options: An Argument For Statutory Recognition Of Options To Purchase Conservation Easements (Opces), Federico Cheever, Jessica Owley

Journal Articles

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long …

Applying Life Insurance Principles To Coastal Property Insurance To Incentivize Adaptation To Climate Change, Edward P. Richards

Journal Articles

Current levels of greenhouse gases will result in significant sea level rise in the future, irrespective of the success of any future mitigation efforts. Paleoclimate and geologic data from past periods of rising sea level show that low lying areas, especially river deltas which are home to half a billion people, will be inundated. The best way to represent this risk through insurance is to apply the human-life insurance model to coastal property insurance. Human-life insurance is based on the assumption that every insured will die. Because the risk of death increases with age, the cost of insurance increases with …

Pope Francis, Environmental Anthropologist, John Copeland Nagle

Journal Articles

In June 2015, after much anticipation and a few leaks, Pope Francis released his encyclical entitled “Laudato Si’: On Care for Our Common Home. “Laudato si’” means “praise be to you,” a phrase that appears repeatedly in Saint Francis’ Canticle of the Sun poem. The encyclical itself has been widely praised and widely reported, far more than one would expect from an explicitly religious document. The encyclical is breathtakingly ambitious. Much of it is addressed to “every person living on this planet,” while specific parts speak to Catholics and others to religious believers generally. It surveys a sweeping range of …

Cultural Heritage Conservation Easements: The Problem Of Using Property Law Tools For Heritage Protection, Jessica Owley

Journal Articles

Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to …