Law Commons^™

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard

Faculty Scholarship

Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …

Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to …

Water Law Transitions, Robert H. Abrams

Journal Publications

The history of water law throughout the United States is dynamic. Beginning with the inherited doctrine of English common law natural flow riparianism, the changes in law can be described as instrumentalist in the sense that "judges and legislatures made this branch of water law an instrument of pro-developmental policy." When the natural flow doctrine's requirement that the stream flow down to lower owners undiminished as to quantity and quality clashed with the needs of the extensive utilization of water powered mills in the nineteenth century, the courts pioneered an American doctrine of reasonable use riparianism that would sustain water-dependent …

The Environmentalist Attack On Environmental Law, John Copeland Nagle

Journal Articles

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law …

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides

Slides: Drawing The Blueprint For A Sustainable Natural Gas Future, Mark K. Boling

Drawing the Blueprint for a Sustainable Natural Gas Future (January 18)

Presenter: Mark. K. Boling, Executive Vice-President and General Counsel, Southwestern Energy

23 slides

Slides: Collaborative Planning And Lessons Learned, Matt Sura

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Matt Sura, University of Colorado Law School

48 slides

Instream Flow And The Public Trust: Statutory Innovation In California's 2009 Delta Reform Act, Paul S. Kibel

Publications

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Slides: Sea Level Rise: Let The Lawsuits Begin!, John P. Casey

Climate Change and the Future of the American West: Exploring the Legal and Policy Dimensions (Summer Conference, June 7-9)

Presenter: John P. Casey, Land Use Attorney, Robinson & Cole, Hartford, CT.

1 page and 75 slides.

Using the changing nature of coastal shorelines as a basis for his presentation, Mr. Casey will discuss the challenges of protecting a landowner's interest in preserving her land, while at the same time protecting the environment and respecting the natural changes that are bound to occur over time. Mr. Casey will focus on the how the application of laws designed to protect the environment - especially in cases where changes take place over time to alter the physical characteristics of the land - …

Two Decades Of Water Law And Policy Reform Proposals: An Overview, Lawrence J. Macdonnell

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

22 pages.

Contains references.

Water Rights, Contract Rights, And The Endangered Species Act, Brian E. Gray

Biodiversity Protection: Implementation and Reform of the Endangered Species Act (Summer Conference, June 9-12)

12 pages.

Contains references.

The Use Of The Public Trust Doctrine As A Management Tool Over Public And Private Lands, Patricia E. Salkin

Scholarly Works

No abstract provided.

Public Access To Shorelines And Beaches: Alternative Approaches And The Taking Issue, Richard Hildreth

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

50 pages.

Water Rights, The Public Trust Doctrine, And The Protection Of Instream Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Our society uses water for a variety of productive purposes, including domestic, agricultural, mining, manufacturing, and energy development. Most of these uses require physical removal of water from watercourses or ground water aquifers. Water can also serve useful purposes, however, when it remains a lake or stream. Flowing water helps to maintain water quality and furthers other uses such as recreation, aesthetic values, and ecological interests—referred to as “instream uses.”

Large quantities of water must remain in place to safeguard instream uses. At the same time, the increasing demands of consumptive water users are significantly reducing streamflows and lake levels …

Interstate Transfers Of Water: Opportunities And Obstables [Sic], A. Dan Tarlock

Western Water Law in Transition (Summer Conference, June 3-5)

34 pages.

Wetlands Preservation And The Protection Of Endangered Species As Limits On Western Water Development, A. Dan Tarlock

The Federal Impact on State Water Rights (Summer Conference, June 11-13)

25 pages.

Hybrid Systems: Outline, Harrison C. Dunning

Water Resources Allocation: Laws and Emerging Issues: A Short Course (Summer Conference, June 8-11)

4 pages.