Law Commons^™

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.

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 …

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 …

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 …

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 …

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 …

The Law And Economics Of Freshwater, Bruce R. Huber

Book Chapters

The chapter is a tribute to Klaus Mathis for his invaluable contributions at the intersection of law and economics.

Law and Economics in all seinen Facetten Festschrift zu Ehren von Klaus Mathis trans: Law and Economics in All His Facets: Festschrift in Honor of Klaus Mathis

Series: Schriften zur Rechtstheorie, vol. 309

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.

Energy Insecurity Mitigation: The Low Income Home Energy Assistance Program And Other Low-Income Relief Programs In The Us, Andrea Nishi, Diana Hernández, Michael B. Gerrard

Faculty Scholarship

Energy insecurity, defined as the “inability to meet basic household energy needs,” can be both a chronic and an acute problem. Chronic energy insecurity manifests as an inability to access or afford adequate supplies of energy, while acute energy insecurity arises when infrastructural, maintenance, environmental, or other external sources disrupt or impede access to energy. A substantial number of individuals and families across the United States experience energy insecurity, which can lead to a variety of adverse consequences including residential instability and poor health outcomes.

New York's Green Amendment: The First Decisions, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

On Nov. 2, 2021, the voters of New York by a margin of more than 2-1 approved an environmental rights amendment to the Bill of Rights in the New York State Constitution. Article I Section 19 reads in its entirety: “Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.” In the little more than a year since then, one of the great questions in New York environmental law has been — what does this mean? It looks significant, but just how much? That is left to the courts to decide. We now …

Waste And Chemical Management In A 4°C World, Michael B. Gerrard

Faculty Scholarship

Many chemicals and hazardous substances are kept in places that can withstand ordinary rain, but not severe storms or floods. If these events occur and the chemicals are released, people and the environment may be endangered. This Article discusses the hazards posed to chemical and waste disposal facilities by extreme weather events that would be worsened as a result of climate change, and how U.S. laws do (or do not) deal with these hazards; and considers how the law would need to change to cope with what would happen to these facilities in a potentially 4°C world. It is adapted …

Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds …

Clean Air Act Section 115: Is The Ipcc A 'Duly Constituted International Agency'?, Adam D. Orford

Scholarly Works

Does EPA’s receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency’s duties under Clean Air Act § 115? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA’s imposition of nationwide greenhouse gas regulation to combat climate change. One way to justify this, or compel it, is to trigger EPA’s duties “upon receipt of reports, surveys or studies from any duly constituted international agency.” This article …

Environmental Law Disrupted By Covid-19, Katrina Fischer Kuh, Lissa Griffin, Rebecca Bratspies, Vanessa Casado Perez, Robin Kundis Craig, Keith Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Elisabeth Haub School of Law Faculty Publications

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

Conservation Easements As A Tool For Nature Protection, William Snape

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Environmental Law As Segregation, Nadia B. Ahmad, Melissa Bryan

Faculty Scholarship

No abstract provided.

Advocating For The Future, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

Faculty Works

Attorneys in our varied roles need to step up and address the climate crisis for the sake of every person and for the public good. All lawyers must be sustainability lawyers now. This article explains why; it also offers an illustrative set of suggestions on how to get started and what to do.

Thirsty Places, Priya Baskaran

Articles in Law Reviews & Other Academic Journals

The United States, among the wealthiest and most prosperous nations in the world, regularly fails to provide clean, potable water to many of its citizens. Recent water crises occur within communities categorized as Geographically Disadvantaged Spaces ("GDS'), which often encompass urban and rural areas. What is more, people of color and economically vulnerable populations are often located within GDS, disproportionately burdening these groups with the economic and public health consequences of failing water infrastructure. This article provides a novel, comparative analysis of communities lacking potable water in Flint, Michigan, and southern West Virginia. This analysis highlights entrenched structural problems present …

Nature's Rights, Christiana Ochoa

Articles by Maurer Faculty

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, …

Environmental Law, Travis M. Trimble

Scholarly Works

In 2020,1 the United States Court of Appeals for the Eleventh Circuit held that a provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)2 that tolled statutes of limitation in state law claims did not apply to a claim brought under the Price-Anderson Act (PAA),3 providing an exclusive federal cause of action for harm resulting from exposure to radioactive materials, even though the PAA "borrows" all substantive law governing liability, including a relevant statute of limitation, from the law of the state where the harm occurred. 4 The United States District Court for the Northern District of Georgia …

Environmental Indifference, Anthony L. Moffa

Faculty Publications

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …

Climate Cages: Connecting Migration, The Carceral State, Extinction Rebellion, And The Coronavirus Through Cicero And 21 Savage, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

“Something There Is That Doesn’T Love A Wall:” A Reflection On The Constitutional Vulnerabilities Of The Southwest Border Wall, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Faculty Scholarship

No abstract provided.

America's New Covenant With Hong Kong: The Hong Kong Human Rights And Democracy Act Of 2019, Jason Buhi

Faculty Scholarship

No abstract provided.

Irena At 10: Post Paris Transitions And Energy Diplomacy Beyond Opec, The Energy Charter Treaty, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Faith-Based Approaches To Ecological Harmony And Environmental Protection, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.