Law Commons^™

Residential Renewable Energy: By Whom?, Joel B. Eisen

Law Faculty Publications

The technology already exists to put solar photovoltaic (PV) panels on millions of homes, but we have paid inadequate attention to getting them there. This current lack of focus on distribution will limit residential solar deployment indefinitely, unless it is addressed soon. While a number of solutions to this problem have been proposed or are in various stages of implementation, this Article finds that given the pressing need to address climate change, more rapid action is needed. In addition to pursuing other options for generating electricity using renewables (including onshore and offshore wind power, and utility-scale solar power stations), and …

Rescuing The Strong Precautionary Principle From Its Critics, Noah M. Sachs

Law Faculty Publications

The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme.

In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm …

When It Reins It Pours, Noah M. Sachs

Law Faculty Publications

Imagine if the board of a Fortune 500 company required the company’s vice presidents to obtain board approval before implementing any decision. Now imagine that the board is highly polarized and its members are at each other’s throats. A recipe for corporate gridlock, right?

Amazingly, House Speaker John Boehner, Senator Jim DeMint, and other prominent Republicans are embracing this dubious chain-of-command for the federal government. They are promoting a bill called the REINS Act (Regulations from the Executive in Need of Scrutiny), which would stop any major regulation issued by any federal agency from taking effect until it receives approval …

Reinventing Fire: Making Energy Efficiency A Reality, Noah M. Sachs

Law Faculty Publications

Professor Sachs recounts his visit to Colorado's Rocky Mountain Institute, a model of energy efficiency and sustainable design, in a larger discussion about the benefits of these practices both in new and existing structures.

Can Urban Solar Become A "Disruptive" Technology?: The Case For Solar Utilities, Joel B. Eisen

Law Faculty Publications

After examining the theory of disruptiveness and the inadequacy of current initiatives for renewables, I argue for a disruptive solution to solar. Achieving the kind of deployment that would be required to make a serious down payment on our climate obligations will take something far different than we have seen to date: companies devoted to national (or at least regional), large-scale installations of solar technology, and which are deeply capitalized and willing to take risks to bring solar to many homeowners. I will term these "solar utilities,'' and I propose that one or more of them should take over the …

Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs

Law Faculty Publications

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States. ·

Part I of this Article critiques the U.S. chemical regulatory regime, arguing that …

Brownfields Development: From Individual Sites To Smart Growth, Joel B. Eisen

Law Faculty Publications

Remediation and reuse ofbrownfields is a hallmark of sustainable land use because the societal and economic benefits of remediating and rehabilitating an underused urban parcel are often greater than those of comparable development taking place at greenfields locations. These benefits are mentioned frequently in the large (and growing) body of brownfields literature, where brown fields redevelopment is seen as especially desirable because it meshes with the goals of the smart growth movement. However, not all brown fields redevelopment activity is "smart," for development of individual sites continues to be parcel-specific and state brownfields programs do not fully integrate well-known benchmarks …

Greening Demand: Energy Consumption And U.S. Climate Policy, Noah M. Sachs

Law Faculty Publications

The search for greener, less polluting energy supplies has dominated discussions of u.s. climate change strategy, but we often overlook cheaper and faster greenhouse gas emissions reductions achievable through energy efficiency and conservation. In this article, I outline a decade-long "greening demand" agenda to reduce the amount of energy consumed in the United States. The federal government should aim to reduce U.S. energy consumption by fifteen percent by 2016 and twenty percent by 2020 to achieve needed reductions in greenhouse gas emissions.

While the United States has achieved notable efficiency gains since the 1970s, several market failures and other barriers …

The Tragedy Of The Commons: The Case Of The Blue Crab, Carl W. Tobias

Law Faculty Publications

The blue crab has achieved iconic status throughout the Chesapeake Bay area, while the pugnacious crustacean and the majestic estuary are national treasures. The shallow waters provide optimal habitat for the species that has been deeply woven into the bay's economic and cultural fabric. Last year, after a respected committee ascertained that the crab was in jeopardy, anticipated future deterioration, and proffered extreme recommendations, Virginia and Maryland imposed draconian strictures which could reduce harvests by one third and help ameliorate the creature's depletion. A recent Executive Order, ambitiously designed by President Barack Obama to safeguard and restore the Chesapeake, illuminates …

Beyond The Liability Wall: Strengthening Tort Remedies In International Environmental Law, Noah M. Sachs

Law Faculty Publications

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( …

Brownfields And Brac: A Surprising "Compatibility", Joel B. Eisen

Law Faculty Publications

In Part I of this Article, I describe the BRAC process and compare it to the process for remediating abandoned or underused sites in state brownfields programs. I find that while the two systems are different in many significant respects, these differences do not overwhelm the commonalities inherent in comparing two systems that focus on remediating sites and transferring them to their new owners. In Part II, I describe the environmental remediation process of BRAC and positive "surprises" in terms of the statutory preference for finality in remedial actions and for public participation at sites being closed and the more …

Brownfields At 20: A Critical Reevaluation, Joel B. Eisen

Law Faculty Publications

Following a basic description of the New Jersey program, I will discuss two specific developments, the BDA initiative and the recent "Grace Period Rule," that changed some aspects of the program. My aim is more modest than a full-scale re-evaluation of all brownfields programs (or indeed of the New Jersey program in its totality); instead I look at the experience within one program to assess whether there is movement toward the development-centered approach. I find that some developments in New Jersey are positive, notably the BDA's approach to addressing multiple brownfield sites concurrently in the same location. On the other …

Planning The Funeral At The Birth: Extended Producer Responsibility In The European Union And The United States, Noah M. Sachs

Law Faculty Publications

This Article examines how governments in the world's two largest economies are diverging in their approaches to regulating hazardous products and packaging, with major ramifications for manufacturing, waste management, and trade. The European Union is implementing product-oriented environmental regulation based on the principle of Extended Producer Responsibility ("EPR"), which assigns responsibility to manufacturers to take back their products after consumers discard them. In theory, EPR could dramatically alter production practices by internalizing externalities from products and providing incentives for environmentally friendly design. However, practical problems of implementation raise questions about the effectiveness of EPR as a policy tool.

This Article …

Six Thinking Hats For The Lorax: Corporate Responsibility And The Environment, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Rapanos, Carabell, And The Isolated Man, Joel B. Eisen

Law Faculty Publications

We gather yet again this year at the University of Richmond to discuss the deplorable state of the Chesapeake Bay and the concerted effort needed to bring it back from the brink of death. The state of the Bay seems not much better than it did eleven years ago, when a group of wise souls who cared deeply about the Bay assembled at this law school to revisit the Kepone incident and call for more action to stem pollution in the Bay. To no one's surprise, unfortunately, that august group assembled in our Moot Court Room did not solve the …

Against Sustainable Development Grand Theory: A Plea For Pragmatism In Resolving Disputes Involving International Trade And The Environment, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen

Law Faculty Publications

In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …

Western Sovereignty For The Twenty-First Century, Carl W. Tobias

Law Faculty Publications

Review of reviewing Daniel Kemmis, This Sovereign Land (2001).

In Search Of Themis: Toward The Meaning Of The Ideal Legislator--Senator Edmund S. Muskie And The Early Development Of Modern American Environmental Law, 1965-1968, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Creation, Liberation, And Property: Virtues And Values Toward A Theocentric Earth Ethic, W. Wade Berryhill

Law Faculty Publications

Religion continues to play a significant role in shaping our attitudes toward nature.2 Time-honored principles of stewardship of the land demand that we owe a duty to future generations to allow them to inherit a healthy environment. Essential to this obligation is spiritual faith, not the trendy brand of secular humanism espoused by ecodogmatists seeking environmental justice through means unmoored from centuries-old principles of creation. What secular humanism ignores-and what religious traditions the world over have recognizedis the reality that we are a "creative expression of the earth's own evolution."3 Thus, in light of our duty to posterity, mere emphasis …

Brownfields Redevelopment, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio+ 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions of Agenda 21 …

A Case Study Of Sustainable Development: Brownfields, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio + 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small minority of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable and increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions …

Adr At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental problems. …

Alternative Dispute Resolution At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for the development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental …

Protecting Nature "Down Under": An American Law Professor's View Of Australia's Implementation Of The Convention On Biological Diversity--Laws, Policies, Programs, Institutions And Plans, 1992-2000, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

What Is Past Is Prologue: Senator Edmund S. Muskie's Environmental Policymaking Roots As Governor Of Maine, 1955-58, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Blocked Pathways: Potential Legal Responses To Endocrine Disrupting Chemicals, Noah M. Sachs

Law Faculty Publications

Over fifty different chemicals may have endocrine disrupting effects, and these chemicals permeate our environment. We may be exposed to them through the products we use, the food we eat, the water we drink, and the air we breath. Although there is a clear need for further research into EDCs, the legal and regulatory communities should begin to consider the types of responses that may be appropriate if the scientific evidence grows stronger.

This article describes and assesses potential legal responses to EDCs, focusing on regulation and litigation, and concludes that existing legal tools will probably be inadequate to respond …

From Stockholm To Kyoto And Back To The United States: International Environmental Law's Effect On Domestic Law, Joel B. Eisen

Law Faculty Publications

In Part I, I begin my discussion of the relationship between the two legal regimes with a brief introduction to modern international environmental law to assist those whose knowledge is as limited as mine was not too long ago. I also describe how the Allen Chair Symposium and seminar series was designed to facilitate exploration of major trends in international environmental law. Part II provides a more in-depth look at the specific relationship between domestic and international environmental law. I conclude that international environmental law informs domestic law as a wellspring of law leading to domestic innovation, a complement to …

Brownfields Policies For Sustainable Cities, Joel B. Eisen

Law Faculty Publications

My analysis begins in Part I with a short summary of brownfields law and policy, and a description of our current understanding of "sustainable development." There is no hard and fast definition of the term, but it is increasingly more clear that a body of sustainable development "law" will take shape as the product of a host of decisions made now and in the near future. The optimal way to ensure that brownfields programs mesh with this body of law-whatever it turns out to be-is to incorporate basic norms of sustainable development about which there is widespread agreement. Those agreed-upon …

Natural Resources And The Ninth Circuit Split, Carl W. Tobias

Law Faculty Publications

Congress recently considered some proposals to split the Ninth Circuit, proposals that could have far-reaching effects on the environment, public lands, and natural resources. This Article first looks at some of the recent developments in Congress, particularly the authorization of a national study commission to examine the federal appeals courts. Professor Tobias predicts that the Ninth Circuit will be split during the next decade. He cautions against using political considerations to conduct legislative policymaking with respect to thefederal courts. He suggests that those concerned about the environment gather reliable information and explore alternatives to circuit-splitting. If Congress decides to bifurcate …