Law Commons^™

Unquenched Thirst: The Need For A Constitutionally Recognized Right To Water In Ghana, Tia Crosby

Student Works

The practice of privatizing water is often discussed as the leading method for improving access to adequate water in developing countries. Notably, this method has a cost that frequently impedes access to water in the developing world, while exploiting the profitability of a natural resource that is vital to human life. In Ghana, the failure of water privatization initiatives and the growing scarcity of adequate water have caused a public health crisis that necessitates a quick and efficient solution. As demonstrated in South Africa, the codification of the right to water in its constitution has improved access to adequate water, …

A Redd Solution To A Green Problem: Using Redd Plus To Address Deforestation In Ghana Through Benefit Sharing And Community Self-Empowerment, William Daniel Nartey

Student Works

The process of converting forests into non-forests deforestation claims 17 million hectares of the world’s tropical forests each year. Ghana is no stranger to the problem of deforestation. The developing country’s rainforest has been decreasing rapidly and significantly over time.

Part II of this paper addresses the primary driving factors of deforestation in Ghana, including human activities such as legal and illegal logging and unsustainable agricultural practices, as well as non-human factors such as poverty and population growth, which are inevitably linked. Part III identifies the constitutional land tenure rights and laws of the timber industry, assessing how these have …

A Proposal For Addressing Violations Of Indigenous Peoples' Environmental And Human-Rights In The Inter-American Human Rights System, Natalia Gove

Student Works

International concerns in the areas of human rights, health, and environment have expanded considerably in the past several decades. International environmental law primarily focuses on environmental damage, rather than its impact on human beings. The focus of environmental treaties is primarily on constraining environmentally deleterious behavior, rather than preventing injuries to people. Part I of this paper will discuss the significance of environmental protection for indigenous peoples. Part II will analyze the linkage between environmental and human rights, as well as the lack of a direct enforcement mechanism for redressing violations of environmental rights. It will also describe the existing …

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …

Corporate Responsibility And Climate Justice: A Proposal For A Polluter-Financed Relocation Fund For Federally Recognized Tribes Imperiled By Climate Change, Randall S. Abate

Journal Publications

Climate change threatens to displace as many as 200 million people internally and across national borders by the middle of the twenty-first century. Indigenous peoples are among the most vulnerable to these changes. With the loss of their village rapidly approaching, the residents of the Native Village of Kivalina are captives in their homeland bracing for disaster because they do not have the millions of dollars needed to relocate and there is no government fund or process in place to provide them with adequate assistance.

Part I of this article describes the factual context of the Kivalina litigation and how …

Arkansas Game & Fish Commission V. U. S. A.: Brief Of Professor Robert H. Abrams And Property And Water Law Professors As Amici Curiae In Support Of Respondent, Robert H. Abrams, Noah D. Hall, Zygmunt J B Plater

Amicus Briefs

Arkansas Game & Fish Commission v. United States of America, on Writ of Certiorari to the United States Court of Appeals for the Federal Circuit.: Brief of Professor Robert H. Abrams and Professors of law teaching in the property law and water rights fields as Amici Curiae in support of Respondent

Municipal Separate Storm Sewer Systems (Ms4)--Assigning Responsibility For Pollutants That Reach The Nation's Waters, Robert Abrams

Journal Publications

The United States Supreme Court will review a ruling of the Ninth Circuit Court of Appeals that found the Los Angeles County Flood Control District in violation of its permit under the Clean Water Act for its Municipal Separate Storm Sewer Systems (MS4) discharges into the Los Angeles and San Gabriel Rivers. Segments of those rivers that constitute a part of the MS4 have been paved to improve flood control, and the pollution levels measured as the water moves through those segments and other monitoring locations exceed the amounts allowed by the District’s permit. The District claims that pollution is …

What Can We Learn From The 2010 Bp Oil Spill?: Five Important Corporate Law And Life Lessons, Joseph Karl Grant

Journal Publications

No abstract provided.

A Tale Of Two Carbon Sinks: Can Forest Carbon Management Serve As A Framework To Implement Ocean Iron Fertilization As A Climate Change Treaty Compliance Mechanism?, Randall S. Abate

Journal Publications

Any post-Kyoto climate change treaty regime must seek to fully engage the use of carbon sinks to complement emissions reduction measures in order to comply with the treaty's mandates. The Kyoto Protocol did not include avoided deforestation as a mechanism for earning emission reduction credits. However, reducing emissions from deforestation and degradation (REDD) quickly gained popularity as a viable climate change compliance strategy in the period immediately preceding the negotiations at the Fifteenth Conference of the Parties (COP 15) in Copenhagen in 2009. The Copenhagen Accord is replete with references to REDD as a focus for the international community's progression …

Framing Water Policy In A Carbon Affected And Carbon Constrained Environment, Robert H. Abrams, Noah D. Hall

Journal Publications

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation's water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water …

Public Nuisance Suits For The Climate Justice Movement: The Right Thing And The Right Time, Randall S. Abate

Journal Publications

The climate justice movement seeks to provide relief to vulnerable communities that have been disproportionately affected by climate change impacts. Public nuisance litigation for climate change impacts is a new and growing field that could provide the legal and policy underpinnings to help secure a viable foundation for climate justice in the United States and internationally. By securing victories in the court system, these suits may succeed where the domestic environmental justice movement failed in seeking to merge environmental protection and human rights concerns into an actionable legal theory. This Article first examines the nature and scope of the climate …

Nepa, National Security, And Ocean Noise: The Past, Present, And Future Of Regulating The Impact Of Navy Sonar On Marine Mammals, Randall S. Abate

Journal Publications

or several decades, and in a variety of contexts, national security and environmental protection interests have clashed. Balancing these competing concerns is a challenging task. However, in the wake of the tragic events of September 11, 2001, the U.S. government “drastically changed its approach to how it handled important environmental concerns in relation to national
defense issues."

The most common manifestation of the tensions between national security and environmental protection objectives is the Navy’s use of sonar in U.S. waters. The oceans that surround the United States on both coasts provide the U.S. Navy with an indispensable buffer zone in …

Redd, White, And Blue: Is Proposed U.S. Climate Legislation Adequate To Promote A Global Carbon Credits System For Avoided Deforestation In A Post-Kyoto Regime?, Randall S. Abate

Journal Publications

Reducing emissions from deforestation and degradation (REDD) has emerged as an important albeit controversial, component of negotiations for a new international climate change regime to succeed the Kyoto Protocol when it expires in 2012 Not permitted under the terms of the Kyoto Protocol, REDD involves paying developing countries to protect their tropical forests as a climate change mitigation strategy REDD gained widespread attention by 2005 and took center stage in the months preceding the negotiation of the Copenhagen Accord in December 2009. After more than a decade of nonparticipation in international climate change compliance efforts, the United States has signed …

A Green Solution To Climate Change: The Hybrid Approach To Crediting Reductions In Tropical Deforestation, Randall S. Abate, Todd A. Wright

Journal Publications

No abstract provided.

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert Abrams

Journal Publications

Conflicts over water allocation have, become a national topic, rather than a regional one confined to the West. Increased water use and projections for further increased demand are combining with the decline of stationarity to underscore the importance of having sound water management policies and a coherent plan for water allocation at the ready and capable of implementation. Historically, and in an earlier era of water federalism, the state police power was acknowledged as the proper locus for making water law and policy.

In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, …

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert H. "Bo" Abrams

Journal Publications

In the United States water law is a subset of property law that controls the use and allocation of the water resource. Water law was, and remains, state law; nothing in the Constitution purports to change that. The scope of federal sovereignty at the time of nationhood did not include even the possibility of playing a major role in regulating resources because the national government was not a significant landholder. The twentieth century changed water federalism dramatically. In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, the real power over water in …

Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams

Journal Publications

It is black letter constitutional theory that the several states are the masters of their property law, and hence their water law. For that reason, states have been free to adopt regimes as widely different as reasonable use riparianism and prior appropriation, depending on local conditions and perceived needs. Superimposed on the same physical water resource network, is the United States Army Corps of Engineers (Corps). The presence of Corps' facilities in basins now experiencing short supply opens the door to state and federal water allocation conflict that calls for mediation under the principles of water federalism, a doctrine that …

What Evidence Will Justify An Allocation Of Liability Among Responsible Parties Under Superfund?, Robert H. Abrams

Journal Publications

Burlington No. & Santa Fe R. Co. v. United States and Shell Oil Co. v. United States Docket Nos. 07-1601 and 07-1607. Argument date: February 24, 2009, From: The Ninth Circuit

Case at a Glance: Over a 30-year period Shell Oil delivered bulk agricultural chemicals to a now-contaminated reseller's site in California. Part of the site was leased from Burlington Northern Railroad. When the site operator failed, the United States and California incurred costs in cleaning the parcel and successfully sought to impose joint and several liability on Shell and the railroad. Shell contends it is not liable under Superfund …

How Much Can Be Charged For Expert-Witness Appearance Fees In Interstate Water Litigation?, Robert H. Abrams

Journal Publications

No abstract provided.

Boundary Waters Treaty Of 1909 As A Model For Interjurisdictional Water Governance, Robert H. Abrams

Journal Publications

In an age of increasing interjurisdictional water conflict and water management concern, the list of accomplishments of the Boundary Water Treaty of 1909 (BWT), reached in a harmonious manner, raises the possibility that, perhaps, the management mechanisms of the BWT might beneficially be used in other contexts. This Article will take up that possibility in the context of three contemporary American interstate water allocation disputes. These disputes are (1) a relatively simple cross-border complaint by a downstream state, South Carolina, that North Carolina cities are using too much water of the Catawba River; (2) the basin-wide dispute regarding water use …

Massachusetts V. Epa And The Future Of Environmental Standing In Climate Change Litigation And Beyond, Randall S. Abate

Journal Publications

This Article focuses on the future scope of environmental standing after Massachusetts v. EPA. Injury in fact has been and remains the most controversial component of the environmental standing test within and outside the context of global environmental harms. Part I of this Article discusses the background context of environmental standing for global environmental harms and its corresponding origins in procedural and substantive injury claims in cases involving purely domestic environmental harms. Part II examines the landmark decision in Massachusetts v. EPA and considers how it confirms and extends standing jurisprudence for global environmental harms, yet fails to resolve some …

Climate Change And Freshwater Resources, Robert H. Abrams, Noah D. Hall, Bret B. Stuntz

Journal Publications

Earth's climate is warming. This is the unequivocal conclusion of climate scientists. Despite the complexities of climatology, certain consistent trends emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, with more frequent heavy precipitation events and more susceptibility to drought. These simple facts will have a profound impact on freshwater resources throughout the United States, as the warmer climate will reduce available water supplies and increase water demand. Unfortunately, current water law and policy are not up to the new challenges of climate change and resulting pressures on freshwater resources. …

Settlement Of The Acf Controversy: Sisyphus At The Dawn Of The 21st Century, Robert H. Abrams

Journal Publications

The ancient Greek myth in which Sisyphus is condemned to perpetually roll a massive boulder up a hill only to have it fall back down now symbolizes repetitive, ultimately fruitless effort. The Apalachicola-Chattahoochee-Flint (ACF) basin rapidly has become the emblem of Sisyphean water conflict in the eastern United States. It has the potential to rival some of the West's long-running water disputes, although it will never challenge the Colorado River in that regard.

At the outset, it is important to recognize that there are many parties with an interest in the ACF basin. The most prominent in recent years are …

Automobile Emissions And Climate Change Impacts: Employing Public Nuisance Doctrine As Part Of A "Global Warming Solution" In California, Randall S. Abate

Journal Publications

The battle against climate change and its impacts in the United States must be waged on many fronts and requires many weapons. Until the federal government provides a comprehensive and mandatory legislative response to the climate change problem, gap-filling efforts such as regional, state, and local legislative initiatives and climate change litigation will be essential to achieve some progress in the ongoing challenge to combat the causes and effects of climate change. This Article focuses on one of those gap-filling efforts: public nuisance suits against power companies and automobile manufacturers for the climate change impacts caused by emissions from those …

A Prairie Perspective On Global Warming And Climate Change: The Use Of Law, Technology, And Economics To Establish Private Sector Markets To Compliment Kyoto, Ronald C. Griffin

Journal Publications

We are in the midst of an environmental calamity that few perceive as grave. The climate is changing. Civilization is suffering. One person can do little to cope with these problems on a global scale. But farmers can do something about their farming operations to contribute less to climate change.

Today, two percent of the population feeds us. With mechanical advancements, new farm machinery, innovative practices, products, commodities, securities, and markets folk can do something to reward farmers for their efforts to slow the pace of climate change.

Environmental Law In The "New" Supreme Court, Robert Abrams

Journal Publications

In the 2006 term the United States Supreme Court issued plenary decisions in four environmental cases. As is usually the case, all four environmental cases that reached the Supreme Court presented nuanced questions of statutory interpretation, most of which were intertwined with administrative law issues. The decisions this term are of unusual importance, as all have significant aspects, either practical, precedential, or attitudinal. Additionally, two of the cases exhibit the 5-4 cleavage, so common in this term's decisions, in which Justice Kennedy is the outcome-determinative swing voter. On unusual occasions there are environmental cases decided by the Supreme Court that …

Broadening Narrow Perspectives And Nuisance Law: Protecting Ecosystem Services In The Acf Basin, Robert Haskell Abrams

Journal Publications

The political stalemate among the neighboring states of Georgia, Alabama, and Florida over the cooperative management of the Apalachicola-Chattahoochee-Flint (ACF) River Basin has been chronicled in numerous articles in the past. This Article will canvas parallel ground in relation to the ACF Basin. In addition, this Article will consider the usual mantra about why the legal deck appears to be stacked against the bottom of the basin where the principal benefits of the water are derived from the ecological systems that are supported by a more natural flow regime. After that, however, the Article will explain how the greatly expanded …

Climate Change, The United States, And The Impacts Of Arctic Melting: A Case Study In The Need For Enforceable International Environmental Human Rights, Randall S. Abate

Journal Publications

Climate change is currently the most significant and daunting international environmental problem, with disproportionate and devastating impacts on indigenous groups. The plight of the Inuit is illustrative of a larger need to recognize and enforce international environmental human rights violations. Part I of this Article examines the evolution of various approaches to environmental human rights theories in (1) United States law, (2) international human rights law instruments, and (3) the laws of other nations. Part II considers the scientific evidence and legal theory underlying the Inuit petition before the Inter-American Commission on Human Rights and explores how this scenario underscores …

Can States Regulate Hydropower Dams As Dischargers Pursuant To Their Clean Water Certification Authority?, Robert H. Abrams

Journal Publications

Under §401 of the Clean Water Act, 33 U.S.C §13·n, to obtain a federal license for any activity that results in a "discharge into the navigable waters," the license applicant must obtain a certification from the state in which the activity takes place that the discharge complies with several aspects of state water-quality regulation under the Clean Water Act. A common setting in which this requirement has been applied is when a hydropower dam seeks to be relicensed by the Federal Energy Regulatory Commission (FERC).

Dawn Of A New Era In The Extraterritorial Application Of U.S. Environmental Statutes: A Proposal For An Integrated Judicial Standard Based On The Continuum Of Context, Randall S. Abate

Journal Publications

Congress has the authority to enact laws beyond the territorial boundaries of the United States. However, whether Congress intended to exercise extraterritorial authority in a given statute is a matter for the courts to ascertain through statutory interpretation. When considering the reach of federal legislation, courts are guided by a presumption against extraterritoriality. Part I of this Article discusses the origins and evolution of the presumption against extraterritoriality before and after the landmark decision in Aramco. Part II addresses the continuum of context paradigm from Massey and describes the extraterritorial application of U.S. environmental statutes. Part III of the Article …