Law Commons^™

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Coasean Blind Spots: Charting The Incomplete Institutionalism, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Protecting New Mexico’S Waters: A Blueprint For The Future, Denise D. Fort

Faculty Scholarship

Aquatic species are imperiled by water diversions, introduced species, pollution and now climate change. In the western U.S., water law rewards the withdrawal and use of water, rather than leaving water instream for ecological, recreational and other purposes. New Mexico has no statutory protections for environmental flows and is increasing its diversions of water from rivers. This paper discusses the status of instream flows in the state and proposes policies to better protect the state’s waters.

Pining For Sustainability, Timothy M. Mulvaney

Faculty Scholarship

The survey results discussed in Part I below reveal substantial paper consumption excesses in the existing law journal system. Though only thirty-three primary law journals responded to the survey, making extrapolation across the general population of all law journals difficult, the aggregate data is illuminating nonetheless. Based upon a very conservative evaluation of the data set, the respondent journals reported printing nearly seventeen million pages of paper in the one-year term of the 2008-2009 editorial boards. Isolated practices proved particularly disconcerting. For instance, one journal reported printing a full, single-sided copy of each of the more than two thousand electronically …

Liability For Environmental Harm And Emerging Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental law and policy are undergoing rapid change at the global, national, and even local levels. The nations of the world continue to struggle to develop an effective global response to climate change. Transboundary pollution and resource management problems command regional attention even as nations work to upgrade their own environmental standards and their energy, transportation, and land use policies. Surprising environmental initiatives are emerging even from state and local governments.

In my previous work I have argued that globalization is affecting law and legal systems throughout the world in profound new ways. See Robert V. Percival, The Globalization of …

From The Greenhouse To The Poorhouse: Carbon Emissions Control And The Rules Of Legislative Joinder, David A. Super

Faculty Scholarship

Pending legislation to address carbon emissions would include large subsidies for existing emitters. These subsidies make little sense economically or politically. Worse, they divert resources needed to address two crucial issues that the proposed legislation largely ignores: the impact of raising carbon costs on low-income people and the massive structural federal deficit. A carbon tax or cap-and-trade system would increase costs substantially not only for transportation but for food and housing. With poverty rising even before the current economic downturn, these price increases’ consequences could be dire. The structural deficit will require deflationary tax increases or spending cuts. Combining carbon …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Alyson Flournoy, William Andreen, Rebecca Bratspies, Holly Doremus, Victor Flatt, Robert Glicksman, Joel Mintz, Daniel Rohlf, Amy Sinden, Rena I. Steinzor, Joseph Tomain, Sandra Zellmer, James Goodwin

Faculty Scholarship

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable.

BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

Corrective Lenses For Iris: Additional Reforms To Improve Epa's Integrated Risk Information System, Rena I. Steinzor, Wendy E. Wagner, Lena Pons, Matthew Shudtz

Faculty Scholarship

The Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) is the most important toxicological database in the world. Not only is it the single most comprehensive database of human health information about toxic substances, it also serves as a gateway to regulation, as well as to a range of public and private sector efforts to protect against toxic substances. IRIS “profiles” of individual substances include a number of scientific assessments of the substance’s toxicity to humans by various means of exposure – by inhalation, contact with the skin, and so on. Federal regulators rely on the assessments to do …

Strategies For Promoting Green Energy Innovation, Deployment, & Technology Transfer, Robert V. Percival

Faculty Scholarship

This paper surveys various strategies for promoting the development and deployment of green energy technologies.

Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson

Faculty Scholarship

Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.

Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with …

Model Green Building Ordinance Proposed For Adoption By New York Municipalities, Michael B. Gerrard, Jason James

Faculty Scholarship

After failing to pass in the 111th Congress, comprehensive federal climate legislation appears stalled until at least 2013. Regulation of greenhouse gas emissions under existing federal law, while progressing, has encountered challenges. Even state initiatives, such as California's A.B. 32, lie on less than certain ground. But not all action to reduce greenhouse gas emissions must be taken on the federal or state level. Through regulating buildings, municipalities can play a crucial role in reducing greenhouse gas emissions while improving the health and welfare of their local communities.

In 2009, the residential and commercial building sector was responsible for more …

Stepping Stone Or Stumbling Block: Incrementalism And National Climate Change Legislation, Rachel Brewster

Faculty Scholarship

This Article examines the effects of incremental domestic legislation on international negotiations to limit greenhouse gas emissions. Mitigating the effects of climate change is a global public good, which, ultimately, only an international agreement can provide. The common presumption (justified or not) is that national legislation is a step forward to an international agreement. This Article analyzes how national legislation can create a demand for international action but can also preempt or frustrate international efforts. The crucial issue, which has been largely ignored thus far, is how incremental steps at the domestic level alter international negotiations. This paper identifies four …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, James Salzman, J.B. Ruhl

Faculty Scholarship

Goals based on absolute targets, risk, technology, or cost are found throughout the administrative state. “Historic baselines,” a point in the past used to ground a policy goal, are just as commonplace, yet remain unexamined. Whether in budgeting or tax, criminal sentencing or environmental protection, historic baselines direct a wide range of agency activities. Their ubiquity begs some important questions. What makes baselines more attractive than other approaches for implementing regulatory goals? Conversely, when are other standard setting methods such as absolute targets and risk-based, technology-based, and cost-based standards more useful to policy makers than historic baselines? Unless one believes …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Workers At Risk: Regulatory Dysfunction At Osha, Thomas Mcgarity, Rena I. Steinzor, Sidney A. Shapiro, Matthew Shudtz

Faculty Scholarship

The Occupational Safety and Health Administration was born with a heavy load to bear – the obligation of ensuring that every worker in America has a safe and healthful workplace for his or her entire working life. In its early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a …

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 …

La Responsabilidad Por Daño Ambiental Global Y La Evolución En Las Relaciones Entre El Derecho Público Y Privado [Liability For Global Environmental Harm And The Evolving Relationship Between Public And Private Law], Robert V. Percival

Faculty Scholarship

No abstract provided.

Foundations: The Public Domain And Natural Resources Law 1785 - 1960, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

Public Choice And Environmental Policy: A Review Of The Literature, Christopher H. Schroeder

Faculty Scholarship

This paper is a draft of a chapter for a forthcoming book, Research Handbook in Public Law and Public Choice, edited by Daniel Farber and Anne Joseph O'Connell, to be published by Elgar. It reviews the public choice literature on environmental policy making, first generally and then with respect to four fundamental environmental policy questions: (1) whether or not government action is warranted; (2) if it is, the scope and stringency of the government action, including the manner in which a bureaucracy will implement and enforce any statutory standards; (3) the level of government that assumes responsibility; and (4) the …

Resistance, “Revolution,” And Reassessment 1981 - 1997, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

Greenhouse Gas Disclosure Requirements Are Proliferating, Michael B. Gerrard

Faculty Scholarship

While climate change legislation is mired in Congress, several units in the Obama administration have been using their existing statutory authority to adopt rules or guidance requiring extensive disclosures about greenhouse gases (GHGs) in a wide variety of contexts. Every registered public company, the operators of many industrial facilities, and those involved in significant federal actions are now or will soon be covered by one or more of these requirements.

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Climate Change And The Wto: Legal Issues Concerning Border Tax Adjustments, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Climate change is a multi-faceted discussion: for the trading community, one of many contentious issues in the policy debate over how to deal with greenhouse gas (GHG) emissions is the appropriate role of Border Carbon Adjustments (BCAs)/Border Tax Adjustments (BTAs). The role of BCAs has been analyzed in a very large policy discussion literature, as well as in a significant number of academic writings in both law and economics. One can safely summarize the state of each of these literatures as bewildering: in the legal literature there is still no consensus as to whether such measures are legal under the …

Litigation Under Seqra Declining, Exemption Use Is Rising, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements (EISs) for discretionary actions by state and local governments that may have a significant effect on the environment, has long been by far the most fertile source of environmental litigation in New York. That is still so, but the volume has declined, probably because much of such litigation grows out of disputes over proposed construction projects, and there are fewer of those in the recent recession.

Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard

Faculty Scholarship

When Jonathan Cannon, Michael Vandenbergh, and I started planning this conference last summer, we planned to call it “Implementing Climate Change Legislation.” We assumed that by today a new law aimed at addressing climate change would be in place, or at least would be in the final polishing stage, in the United States. We even imagined that the federal agencies would be rolling up their sleeves to implement not only the new U.S. climate law but also our part of the comprehensive climate pact that the nations of the world had agreed to in Copenhagen.

Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard

Faculty Scholarship

In 2009, the residential and commercial building sector was responsible for more than 50 percent of total annual U.S. energy consumption, 74 percent of total U.S. electricity consumption, and 39 percent of total U.S. greenhouse gas emissions.

There has been a growing movement to encourage “green buildings” – those that generally use water, energy and materials more efficiently than conventional buildings, and utilize design, construction and siting features to reduce their negative environmental impacts.

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Introductory Comments: The Current State Of Climate Change Law, Michael B. Gerrard

Faculty Scholarship

The three words that best characterize the current state of climate change law are fragmentation, uncertainty, and insufficiency.