Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 99

Full-Text Articles in Law

State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson Jan 2018

State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson

Articles by Maurer Faculty

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All ...


Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley Jan 2018

Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley

Articles by Maurer Faculty

The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental ...


An Evaluation Of U.S. National Wildlife Refuge Planning For Off-Road Vehicle Use, Robert L. Fischman, Vicky J. Meretsky, Katie Freeman, Alexi Lamm, Leah Missik, Scott Salmon Jan 2017

An Evaluation Of U.S. National Wildlife Refuge Planning For Off-Road Vehicle Use, Robert L. Fischman, Vicky J. Meretsky, Katie Freeman, Alexi Lamm, Leah Missik, Scott Salmon

Articles by Maurer Faculty

Off-road vehicles (hereafter, ORVs) rank high among public-land management challenges because they are popular, often impair environmental conditions, and may cause conflicts with other recreational users. Unit-level planning for federal lands increasingly translates broad, system-wide objectives, such as maintenance of ecological integrity, into place-based limitations on ORV use to minimize and mitigate adverse impacts on wildlife. We reviewed 176 planning documents covering 313 National Wildlife Refuges (hereafter, Refuges) to understand how planning supports or undermines ORV recreation management. These plans offer an important perspective on ORV management because the Refuges are a large, diverse system of conservation lands where recreation ...


Leveraging Federal Land Plans Into Landscape Conservation, Robert L. Fischman Jan 2016

Leveraging Federal Land Plans Into Landscape Conservation, Robert L. Fischman

Articles by Maurer Faculty

Professor Fischman’s article suggests several ways in which a mandated unit-level (e.g. an individual national forest) plan can better contribute to goals of a larger region (e.g. the Willamette River watershed) and of federal agencies (e.g. mandates to maintain ecological integrity). The scientific literature is largely in agreement that achieving ecological integrity, adaptive management, and climate change resiliency all require large-scale coordination across property boundaries and jurisdictions. The author takes these widely accepted findings as a starting point and shows how public agencies can implement effective practices. The article attempts to integrate traditional regulatory analysis with ...


Advantages Of A Polycentric Approach To Climate Change Policy, Daniel H. Cole Jan 2015

Advantages Of A Polycentric Approach To Climate Change Policy, Daniel H. Cole

Articles by Maurer Faculty

Lack of progress in global climate negotiations has led scholars to reconsider polycentric approaches to climate policy. Several examples of subglobal mechanisms to reduce greenhouse-gas emissions have been touted, but it remains unclear why they might achieve better climate outcomes than global negotiations alone. Decades of work conducted by researchers associated with the Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis at Indiana University have emphasized two chief advantages of polycentric approaches over monocentric ones: they provide more opportunities for experimentation and learning to improve policies over time, and they increase communications and interactions — formal and informal ...


The Problem Of Shared Irresponsibility In International Climate Law, Daniel H. Cole Jan 2015

The Problem Of Shared Irresponsibility In International Climate Law, Daniel H. Cole

Articles by Maurer Faculty

States have treaty-based and customary international law-based responsibilities to ensure that greenhouse gas emissions emanating from their territory do not cause transboundary harm. However, those international legal responsibilities conflict with the observed behavior of states, which suggests a general rule of irresponsible treatment of the global commons. This paper, written for a conference (and eventual book) on shared responsibility in international law, examines that conflict and two potential mechanisms for resolving it: (1) international litigation and (2) various types of polycentric approaches to climate governance.

Several international legal scholars have been advocating litigation as a means of compensating victims and ...


Introductory Remarks. Arctic Law: The Challenges Of Governance In The Changing Arctic, Austen L. Parrish Jan 2013

Introductory Remarks. Arctic Law: The Challenges Of Governance In The Changing Arctic, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.


Law, Politics, And Cost-Benefit Analysis, Daniel H. Cole Jan 2012

Law, Politics, And Cost-Benefit Analysis, Daniel H. Cole

Articles by Maurer Faculty

This Article explores the significant role cost–benefit analysis (CBA) plays in facilitating or impeding legislative and regulatory policy decisions. The Article centers around three case studies of CBAs the EPA prepared under three different presidents: (1) Clinton Administration changes to Clean Air Act air quality standards for ozone and particulate matter; (2) President Obama’s recent decision to suspend the EPA’s reconsideration of the Bush Administration’s air quality standard for ozone; and (3) the George W. Bush Administration’s “Clear Skies” legislative initiative. The first two case studies demonstrate, between them, how well-constructed CBAs can facilitate social-welfare-enhancing ...


Migration Conservation: A View From Above, Robert L. Fischman Jan 2011

Migration Conservation: A View From Above, Robert L. Fischman

Articles by Maurer Faculty

The extinction prevention focus of natural resources policy diverts attention from important issues of ecological integrity and adaptation to climate change. Animal migration conservation serves as a bridge from the imperiled species problem to the more spatially and temporally difficult problems surrounding climate change adaptation. Conserving abundant animal migrations both strengthens the resilience of the ecosystems in which they function and tests the resilience of social institutions responsible for adaptation. This essay synthesizes the findings of a two-year, interdisciplinary study of animal migration conservation. It also introduces the articles that follow in a symposium issue of the journal, Environmental Law.


From Global To Polycentric Climate Governance, Daniel H. Cole Jan 2011

From Global To Polycentric Climate Governance, Daniel H. Cole

Articles by Maurer Faculty

Global governance institutions for climate change, such as those established by the United Nations Framework Convention on Climate Change and the Kyoto Protocol, have so far failed to make a significant impact on greenhouse gas emissions. Following the lead of Elinor Ostrom, this paper offers an alternative theoretical framework for reconstructing global climate policy in accordance with the polycentric approach to governance pioneered in the early 1960s by Vincent Ostrom, Charles Tiebout, and Robert Warren. Instead of a thoroughly top-down global regime, in which lower levels of government simply carry out the mandates of international negotiators, a polycentric approach provides ...


A Tradable Conservation Easement For Vulnerable Conservation Objectives, W. William Weeks Jan 2011

A Tradable Conservation Easement For Vulnerable Conservation Objectives, W. William Weeks

Articles by Maurer Faculty

The critical conservation objectives in some conservation easements will probably be compromised by the effects of climate change in the relatively near future. Prompted to consider that likelihood, we can similarly predict that landscape fragmentation, invasive species, and other catastrophes— anthropogenic and natural—may also seriously diminish the capacity of particular parcels of land to serve narrowly defined conservation purposes, and especially, the conservation of a particular element of biodiversity.


Statutory Reform To Protect Migrations As Phenomena Of Abundance, W. William Weeks, Jeffrey B. Hyman, Andrea Need Jan 2011

Statutory Reform To Protect Migrations As Phenomena Of Abundance, W. William Weeks, Jeffrey B. Hyman, Andrea Need

Articles by Maurer Faculty

Animal migrations capture the human mind and heart like few other natural phenomena. Migrations provide ecological, psychological (e.g., aesthetic), cultural, and economic benefits. Increasingly, though, migrations are being recognized as threatened phenomena-that is, spectacular aspects of the life history of animal species often involving large numbers of individuals, but which are threatened with impoverishment or demise, even though the species per se may not be in peril. Migration phenomena are themselves worthy of protection, as a category of biodiversity Yet, conserving migratory populations and their migrations is particularly problematic. Migratory animals are especially vulnerable to a variety of threats ...


Corporate Social Responsibility And Firm Compliance: Lessons From The International Law-International Relations Discourse, Christiana Ochoa Jan 2011

Corporate Social Responsibility And Firm Compliance: Lessons From The International Law-International Relations Discourse, Christiana Ochoa

Articles by Maurer Faculty

There has been a long and fruitful discourse between and among legal academics and political scientists, known as international law (IL)-international relations (IL) scholarship. A great deal of that scholarship has discussed the effectiveness of particular IL regimes, usually as part of a larger discourse regarding the question of compliance with IL or international institutions, more generally, including agreed norms and soft law. This field of IL-IR scholarship has taken a fairly Westphalian and Weberian view of international law and of international relations, viewing states as the subjects of international law and, thus, seeing states as its subjects of ...


Beyond Trust Species: The Conservation Potential Of The National Wildlife Refuge System In The Wake Of Climate Change, Robert L. Fischman, Robert Adamcik Jan 2011

Beyond Trust Species: The Conservation Potential Of The National Wildlife Refuge System In The Wake Of Climate Change, Robert L. Fischman, Robert Adamcik

Articles by Maurer Faculty

Over the last two decades, the U.S. Fish and Wildlife Service (“FWS”) has come to define its conservation mission in the context of species protection. The concept of “trust species” is now a common focal point for the myriad responsibilities of the FWS. This has become problematic for one of the major programs of the agency: management of the world’s largest biodiversity conservation network, the national wildlife refuge system (“NWRS”). A major legislative overhaul of the NWRS charter and the imperatives of climate change adaptation have weakened the concept as a reliable touchstone for NWRS management and expansion ...


The Story Of Kleppe V. New Mexico: The Sagebrush Rebellion As Un-Cooperative Federalism, Robert L. Fischman, Jeremiah Williamson Jan 2011

The Story Of Kleppe V. New Mexico: The Sagebrush Rebellion As Un-Cooperative Federalism, Robert L. Fischman, Jeremiah Williamson

Articles by Maurer Faculty

The story of Kleppe v. New Mexico dramatizes how assertion of federal power advancing national conservation objectives collided with traditional, local economic interests on public lands in the 1970s. This article connects that history with current approaches to natural resources federalism. New Mexico challenged the Wild Free-Roaming Horses and Burros Act, which diminished both state jurisdiction and rancher influence over public rangelands. In response, the Supreme Court resoundingly approved federal authority to reprioritize uses of the public resources, including wildlife, and spurred a lasting backlash in the West. Further legislation passed in the wake of Kleppe transformed this unrest into ...


Hicks V. Dowd, Conservation Easements, And The Charitable Trust Doctrine: Setting The Record Straight, W. William Weeks, Nancy A. Mclaughlin Jan 2010

Hicks V. Dowd, Conservation Easements, And The Charitable Trust Doctrine: Setting The Record Straight, W. William Weeks, Nancy A. Mclaughlin

Articles by Maurer Faculty

This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts. In 2002, Johnson County, Wyoming, attempted to terminate a conservation easement that had been conveyed to the County as a tax-deductible charitable gift. The County's actions were challenged, first in a suit brought by a resident of the County, Hicks v. Dowd, and then in a suit brought by the Wyoming Attorney General, Salzburg v. Dowd. The over six years of litigation associated with the easement's attempted termination has ...


The Legal Challenge Of Protecting Animal Migrations As Phenomena Of Abundance, Robert L. Fischman, Jeffrey B. Hyman Jan 2010

The Legal Challenge Of Protecting Animal Migrations As Phenomena Of Abundance, Robert L. Fischman, Jeffrey B. Hyman

Articles by Maurer Faculty

Animal migrations are as familiar as geese in the sky on a fall afternoon and as mysterious as the peregrinations of sea turtles across thousands of miles of open ocean. This article discusses the distinguishing attributes of animal migrations, why they are important to biodiversity conservation, and the legal challenges posed by migration conservation. In particular, the article focuses on those aspects of migration conservation that existing law, dominated by imperiled species protection, fails to address. It consequently suggests law reforms that would better conserve animal migrations. A step toward serious legal efforts to protect the process and function of ...


Adaptive Management In The Courts, Robert L. Fischman, J. B. Ruhl Jan 2010

Adaptive Management In The Courts, Robert L. Fischman, J. B. Ruhl

Articles by Maurer Faculty

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question ...


The Legal Challenge Of Protecting Animal Migrations As Phenomena Of Abundance, Robert L. Fischman, Jeffrey B. Hyman Jan 2010

The Legal Challenge Of Protecting Animal Migrations As Phenomena Of Abundance, Robert L. Fischman, Jeffrey B. Hyman

Articles by Maurer Faculty

Animal migrations are as familiar as geese in the sky on a fall afternoon and as mysterious as the peregrinations of sea turtles across thousands of miles of open ocean. This article discusses the distinguishing attributes of animal migrations, why they are important to biodiversity conservation, and the legal challenges posed by migration conservation. In particular, the article focuses on those aspects of migration conservation that existing law, dominated by imperiled species protection, fails to address. It consequently suggests law reforms that would better conserve animal migrations. A step toward serious legal efforts to protect the process and function of ...


In Defense Of Conservation Easements: A Response To The End Of Perpetuity, W. William Weeks, Nancy A. Mclaughlin Jan 2009

In Defense Of Conservation Easements: A Response To The End Of Perpetuity, W. William Weeks, Nancy A. Mclaughlin

Articles by Maurer Faculty

No abstract provided.


Reclaiming International Law From Extraterritoriality, Austen L. Parrish Jan 2009

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The ...


Synthesizing Tsca And Reach: Practical Principles For Chemical Regulation Reform, John S. Applegate Jan 2008

Synthesizing Tsca And Reach: Practical Principles For Chemical Regulation Reform, John S. Applegate

Articles by Maurer Faculty

The European Union's newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative, inasmuch as TSCA is widely regarded as a disappointment among US environmental laws, and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory concepts that were not available to the framers of TSCA thirty years ago. The passage of REACH has sparked renewed interest in reforming TSCA, and the ...


The Temporal Dimension Of Land Pollution: Another Perspective On Applying The Breaking The Logjam Principles To Waste Management, John S. Applegate Jan 2008

The Temporal Dimension Of Land Pollution: Another Perspective On Applying The Breaking The Logjam Principles To Waste Management, John S. Applegate

Articles by Maurer Faculty

Unlike air and water pollution, pollution from dangerous solid and liquid wastes on land remains a relatively concentrated, active hazard for long periods of time. Uncontrolled, land pollution moves through the environment slowly and often without significant diminution of toxicity. Persistence, in fact, is often regarded as the defining quality of dangerous land pollutants. Hazardous and nuclear waste regulation is very much concerned with the problem of maintaining the isolation of solid and liquid materials over decades, centuries, and even millennia, and, the author argues, there is good reason to believe that waste management practices and institutions are not well ...


Bridging The Data Gap: Balancing The Supply And Demand For Chemical Information, John S. Applegate Jan 2008

Bridging The Data Gap: Balancing The Supply And Demand For Chemical Information, John S. Applegate

Articles by Maurer Faculty

No abstract provided.


Judicial Review Of Agency Noncompliance With Public Land Manuals, Robert L. Fischman Apr 2007

Judicial Review Of Agency Noncompliance With Public Land Manuals, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.


Climate Change, Adaptation, And Development, Daniel H. Cole Jan 2007

Climate Change, Adaptation, And Development, Daniel H. Cole

Articles by Maurer Faculty

Since the signing the Kyoto Protocol, the international community has focused a great deal of attention on measures designed to reduce emissions of greenhouse gases. Much less attention has been paid to climate change adaption. This is unfortunate because, even if the Kyoto Protocol is fully implemented, climate change will generate substantial costs requiring substantial adaptation efforts, especially in the less developed countries (LDCs) of the world's tropical regions.

This paper considers what those countries should be doing in preparation for the effects of climate change, and what the countries of the developed world, including the United States, can ...


What Is Natural Resources Law?, Robert L. Fischman Jan 2007

What Is Natural Resources Law?, Robert L. Fischman

Articles by Maurer Faculty

A recent flurry of new natural resources law casebooks, coming a quarter-century since the publication of the last significant new teaching materials, is an occasion to revisit the boundaries that define the field. The similarities among the casebooks are stronger than their differences, and represent a consensus about what composes natural resources law. The published teaching materials as well as an informal poll of natural resources law professors show a substantial overlap between natural resources and environmental law course coverage. Administrative implementation of statutes dominates both subjects. Both courses typically cover environmental impact analysis and endangered species protection. The new ...


Savings Clauses And Trends In Natural Resources Federalism, Robert L. Fischman, Angela King Jan 2007

Savings Clauses And Trends In Natural Resources Federalism, Robert L. Fischman, Angela King

Articles by Maurer Faculty

This article considers recent trends in federalism, with particular attention to natural resource law's statutory savings clauses. It begins with a case study of elk management in Jackson Hole, Wyoming. The elk controversy shows how a statutory savings clause can provide a state with traction to advance its interests, and demonstrates how the political winds of change can shift the balance of state-federal relations. The article then focuses on the common statutory savings clauses and their roles in circumscribing federal agency authority and establishing a basis for cooperation between federal and state governments. We analyze the interpretive approaches the ...


Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Austen L. Parrish, Shi-Ling Hsu Jan 2007

Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Austen L. Parrish, Shi-Ling Hsu

Articles by Maurer Faculty

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of international law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international ...


From Words To Action: The Impact And Legal Status Of The 2006 National Wildlife Refuge System Management Policies, Robert L. Fischman Jan 2007

From Words To Action: The Impact And Legal Status Of The 2006 National Wildlife Refuge System Management Policies, Robert L. Fischman

Articles by Maurer Faculty

On June 26, 2006, the U.S. Fish and Wildlife Service (FWS) issued three new final policies governing the conservation of the national wildlife refuge system. These new agency manual provisions nearly complete an implementation project that began shortly after Congress enacted an organic statute in 1997 for management of the refuges. This article briefly reviews the significance of the 1997 legislation and places the new policies in the context of the statutory framework. It then discusses the most important aspects of the policies in terms of both practical refuge management and broader trends in natural resources law. The article ...