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The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson Jan 2020

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Pace Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing ...


The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh Oct 2019

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Pace 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 ...


Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green Oct 2019

Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green

Pace Law Faculty Publications

Cultural heritage (historic buildings, landscapes, and natural monuments) is being threatened by all manner of evils--attacks by belligerents seeking military advantages, increased consumptive uses, and significantly, the idiosyncratic effects of climate change. Climate change portends sea level rise and coastal erosion threats that will inundate coastal areas and the historic structures located there. Melting permafrost and changes in soil composition threaten the loss of buried archaeological evidence and compromise the integrity of ancient buildings designed for a less malevolent climate.

State and local governments have been undertaking measures to build sustainable communities to mitigate the coming changes in the climate ...


Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson Oct 2019

Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson

Pace Law Faculty Publications

Anxiety about the fate of human civilization is rising. International Law has an essential role to play in sustaining community of nations. Without enhancing International Environmental Law, the biosphere that sustains all nations is imperiled. Laws in the United States can either impede or advance global environmental stewardship. What is entailed in such a choice?

The biosphere is changing. At a time when extraordinary technological prowess allows governments the capacity to know how deeply they are altering Earth's biosphere, nations experience a perverse inability to cooperate together. The Arctic is melting rapidly, with knock on effects for sea level ...


You Don’T Need Lungs To Suffer: Fish Suffering In The Age Of Climate Change With A Call For Regulatory Reform, David N. Cassuto, Amy O'Brien Aug 2019

You Don’T Need Lungs To Suffer: Fish Suffering In The Age Of Climate Change With A Call For Regulatory Reform, David N. Cassuto, Amy O'Brien

Pace Law Faculty Publications

Fish are sentient — they feel pain and suffer. Yet, while we see increasing interest in protecting birds and mammals in industries such as farming and research (albeit few laws), no such attention has been paid to the suffering of fish in the fishing industry. Consideration of fish welfare including reducing needless suffering should be a component of fisheries management. This article focuses on fisheries management practices, the effects of anthropogenic climate change on fisheries management practices, and the moral implications of fish sentience on the development and amendment of global fishing practices. Part I examines domestic and international fisheries, including ...


The New Food Safety, Margot J. Pollans, Emily M. Broad Leib Aug 2019

The New Food Safety, Margot J. Pollans, Emily M. Broad Leib

Pace Law Faculty Publications

A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is often narrowly understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not just acute, ingestion-related risks, but also whole-diet cumulative ingestion risks, and cradle-to-grave risks of food production and disposal. This broader definition, which we call “Food System Safety,” draws under the header of food safety a variety of historically siloed, and under-regulated, food system issues including ...


The Most Fundamental Right, Nicholas A. Robinson Jan 2019

The Most Fundamental Right, Nicholas A. Robinson

Pace Law Faculty Publications

The Magna Carta and successors recognize a right to the environment as central to human existence. Along with associated rule of law and due process, 193 national charters recognize such a right — but not the U.S. Constitution. This right does lie latent in America’s state constitutions, however, and can also be read into the federal document as well. Meanwhile, recognition of environmental rights is expanding globally.


Calming Troubled Waters: Local Solutions, Part I, John R. Nolon Jan 2019

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Pace Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the ...


Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki Oct 2018

Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki

Pace Law Faculty Publications

Our global food systems create pervasive environmental, social, and health impacts. Impact valuation is an emerging concept that aims to quantify all environmental, social, and health costs of food systems in an attempt to make the true cost of food more transparent. It also is designed to facilitate the transformation of global food systems. The concept of impact valuation is emerging at the same time as, and partly as a response to, calls for the development of legal mechanisms to address environmental, social, and health concerns. Information has long been understood both as a necessary precursor for regulation and as ...


From Little Acorns, Nicholas A. Robinson Jan 2018

From Little Acorns, Nicholas A. Robinson

Pace Law Faculty Publications

Inaugurating Writing Nature: A Seasonal Program of Readings of Nature Writings, under the shared auspices of the Teatown Lake Reservation and the Hudson Valley Writers Center. Presented at the Hudson Valley Writers Center, Sleepy Hollow, New York.


The Missing Element Of Environmental Cost-Benefit Analysis: Compensation For The Loss Of Regulatory Benefits, Karl S. Coplan Jan 2018

The Missing Element Of Environmental Cost-Benefit Analysis: Compensation For The Loss Of Regulatory Benefits, Karl S. Coplan

Pace Law Faculty Publications

Despite its critics, cost-benefit analysis remains a fixture of the environmental regulation calculus. Most criticisms of cost-benefit analysis focus on the impossibility of monetizing environmental and health amenities protected by regulations. Less attention has been paid to the regressive wealth-transfer effects of regulations foregone based on cost-benefit analysis. This regressive effect occurs as long as downwind communities that suffer health and harms from environmental contamination are generally less wealthy than the owners of pollution sources that avoid regulatory-compliance costs. The availability of compensation to pollution-victims has the potential to ameliorate this regressive effect. This Article recommends that the availability of ...


Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon Jan 2018

Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon

Pace Law Faculty Publications

This article describes strategies that local governments are employing to both mitigate and adapt to climate change, using their state-given powers to plan community development and to regulate private building. Local governments have significant legal authority to shape human settlements and, in so doing, lower CO2 emissions from buildings and vehicles, increase the sequestration of carbon by the natural environment, and promote distributed energy systems and renewable energy facilities that lower fossil fuel consumption. Local elected leaders are highly motivated to avoid the on-the-ground consequences of our changing climate. The effects of climate change manifest themselves at the local level ...


Crafting Next Generation Eco-Label Policy, Jason J. Czarnezki, Katrina F. Kuh Jan 2018

Crafting Next Generation Eco-Label Policy, Jason J. Czarnezki, Katrina F. Kuh

Pace Law Faculty Publications

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that ...


Bluebooking Environmental Resources, Deborah Heller Jan 2018

Bluebooking Environmental Resources, Deborah Heller

Pace Law Faculty Publications

Five-page tip sheet presented as a table covers how to properly cite environmental material according to the Bluebook. It includes federal and state bills, legislation, and regulations, federal and state administrative adjudications and other administrative material.


Under The Radar: The Cost And Benefits Of Wind Energy Through The Lens Of National Security, David N. Cassuto Jan 2018

Under The Radar: The Cost And Benefits Of Wind Energy Through The Lens Of National Security, David N. Cassuto

Pace Law Faculty Publications

This Article examines wind energy through the lens of national security. The benefit resides with helping the United States become energy independent. National-security concerns also present a cost because wind energy interferes with military radar, posing a potential threat to the systems that monitor possible attacks. This Article attempts to analyze the overall impact of wind energy while noting the inherent difficulties when so much uncertainty is involved in the process.

Part I of this Article discusses the benefits of wind energy. Part II examines its costs, specifically its interference with radar, and what that means for national security. This ...


Environmental Human Rights In New York’S Constitution, Nicholas A. Robinson Oct 2017

Environmental Human Rights In New York’S Constitution, Nicholas A. Robinson

Pace Law Faculty Publications

There is an environmental case to be made in favor of convening a Constitutional Convention. On the 200th anniversary birth of Henry David Thoreau, we can remember his admonition: “Live in each season as it passes; breathe the air, drink the drink, taste the fruit, and resign yourself to the influence of the earth.” What has this to do with the Constitution?


Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson Sep 2017

Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Pace Law Faculty Publications

This conference is a singular event, long over due. It has been 258 years since William Blackstone celebrated “these two sacred charters,”1 Carta de Foresta and Magna Carta, with his celebrated publication of their authentic texts. In 2015, the Great Charter of Liberties enjoyed scholarly, political and popular focus. The companion Forest Charter was and is too much neglected.2 I salute the American Bar Association, and Dan Magraw, for the ABA’s educational focus of the Forest Charter, as well as Magna Carta. Today we restore some balance with this conference’s searching and insightful examination of the ...


Scientists & Librarians Turn To “End Of Presidential Term” Web Archive To Safeguard Climate Change Data, Alyssa S. Rosen Jan 2017

Scientists & Librarians Turn To “End Of Presidential Term” Web Archive To Safeguard Climate Change Data, Alyssa S. Rosen

Pace Law Faculty Publications

In anticipation of president-elect Donald Trump’s taking office, scientists have been working round the clock to safeguard federal government climate change data. Many academics and librarians share the concern that federal .gov climate data and information, for example from the EPA and NOAA websites, will be lost or become unavailable with the transition to the new administration. Fact is, a large percentage of information on federal government servers, including digital federal records, reports, and research, is not protected by any law or agency mandate, and can vanish within days of the arrival of a new president.


Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iv), John R. Nolon Jan 2017

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iv), John R. Nolon

Pace Law Faculty Publications

Fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know—clearly and convincingly—why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts.


Farming And Eating, Margot J. Pollans Jan 2017

Farming And Eating, Margot J. Pollans

Pace Law Faculty Publications

This essay argues that the “us versus them” rhetoric that dominates food and agriculture policy today drives a wedge between farmers and food consumers. Together, farmers and food consumers could form a powerful coalition to challenge the true obstacle to sustainable and equitable food production: concentration of market and political power elsewhere along the food chain.


Un Environment Guide For Energy Efficiency And Renewable Energy Laws, Richard L. Ottinger Sep 2016

Un Environment Guide For Energy Efficiency And Renewable Energy Laws, Richard L. Ottinger

Pace Law Faculty Publications

This Guide is written as a sequel to the 2007 UN Environment Programme Handbook for Legal Draftsmen on Environmentally Sound Management of Energy Efficiency and Renewable Energy Resources.

This Guide, as the Handbook, is written in response to needs expressed, particularly by energy efficiency and renewable energy project initiators, government officials, energy managers, project developers and particularly developing country energy legal draftsmen, asking for assistance in drafting legislative provisions for promotion and implementation of sound energy efficiency and renewable energy programs.

The Guide describes the key legal issues associated with efficiency and renewable energy resource development, and presents legislative options ...


The Lautenberg Act: Chemical Safety Overhaul Of The Toxic Substances Control Act, Alyssa S. Rosen Aug 2016

The Lautenberg Act: Chemical Safety Overhaul Of The Toxic Substances Control Act, Alyssa S. Rosen

Pace Law Faculty Publications

On June 22, 2016, President Obama signed the Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), a landmark bipartisan compromise legislation designed to overhaul the Toxic Substances Control Act (TSCA). The Lautenberg Act makes it easier for the U.S. Environmental Protection Agency (EPA) to regulate toxic substances while providing the chemical industry with regulatory clarity and certainty. Law Librarians, practicing lawyers, and academics have taken note of this groundbreaking law that most likely will set the template for the next generation of environmental reform by tackling issues such as preemption of state law, protection of vulnerable ...


It’S Time For The Fda To Define ‘Natural’, Jason J. Czarnezki May 2016

It’S Time For The Fda To Define ‘Natural’, Jason J. Czarnezki

Pace Law Faculty Publications

The authors discusses the FDA 's recent call for comments on a definition of the term natural as it applies to food.


Recapturing Water For Sustainability Through Redefinitions Of Navigability And Ownership, Shelby D. Green Feb 2016

Recapturing Water For Sustainability Through Redefinitions Of Navigability And Ownership, Shelby D. Green

Pace Law Faculty Publications

In Defining "Navigability": Balancing State Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015), Maureen Brady explains that over the last two centuries, state courts have broadened the concept of navigability, and applied the new definitions to alter existing land titles. As a consequence, many non-navigable waterways have become navigable waterways, increasing public ownership and extinguishing private rights.


Plain Meaning, Precedent, And Metaphysics: Lessons In Statutory Interpretation From Analyzing The Elements Of The Clean Water Act Offense, Jeffrey G. Miller Jan 2016

Plain Meaning, Precedent, And Metaphysics: Lessons In Statutory Interpretation From Analyzing The Elements Of The Clean Water Act Offense, Jeffrey G. Miller

Pace Law Faculty Publications

This Article, the fifth in a series of five, completes the author’s detailed analysis of how federal courts have interpreted each element of the Clean Water Act (CWA) offense. Compiling statistics across the four prior articles, it draws conclusions about statutory interpretation in general, finding that the depth of legal analysis increases with the level of court; that environmentally positive results decrease with the level of court; that courts use only a small number of canons and other interpretive devices; that their uses of interpretive devices change over time; and that interpretive devices are not all outcome-neutral. The author ...


Teaching Substantive Environmental Law And Practice Skills Through Interest Group Role-Playing, Karl S. Coplan Jan 2016

Teaching Substantive Environmental Law And Practice Skills Through Interest Group Role-Playing, Karl S. Coplan

Pace Law Faculty Publications

Most law students take their first introductory course in environmental law during their second year of law school. The traditional first-year curriculum does little to prepare students for the complex statutory and regulatory models for most environmental regulation. Law students at the end of their first year often have had little exposure to statutory interpretation. Further, they often have no exposure to administrative law and regulatory implementation. These students may expect statutes to provide clear statements of rules rather than guidelines for administrative rulemaking. They also tend to view the lawmaking and interpretive process through the traditional lens of congressional ...


Drinking Water Protection And Agricultural Exceptionalism, Margot J. Pollans Jan 2016

Drinking Water Protection And Agricultural Exceptionalism, Margot J. Pollans

Pace Law Faculty Publications

Providing safe drinking water is a basic responsibility of government. In the United States, local water utilities shoulder much of this burden, but federal drinking water law sets these utilities up to fail. The primary problem arises in the context of nonpoint source pollution, where federal drinking water law favors end-of-line clean up by water utilities over pollution prevention by farmers and other nonpoint source polluters. This system is both inefficient and unfair.

Although the Safe Drinking Water Act requires local utilities to provide safe water, it gives them few tools to engage in water pollution prevention and instead emphasizes ...


Zoning Neighborhoods For Resilience: Drivers, Tools And Impacts, Shelby D. Green Jan 2016

Zoning Neighborhoods For Resilience: Drivers, Tools And Impacts, Shelby D. Green

Pace Law Faculty Publications

A new urban design is needed, one that if not climate-determinist, is climate-cognizant. The built environment should be structured and the natural environment must be managed and protected in a way that regards climate forces that if left unchecked will sap the energy, the very existence of the city.7 A new urban design must begin with a statement of clear ends to be achieved, be based upon authoritative scientific, legal and social principles and must be implemented with an understanding of the costs--monetary and socio-political, that are demonstrably justified in the light of the alternatives. The extravagant and pretentious ...


Enhancing The Urban Environment Through Green Infrastructure, John R. Nolon Jan 2016

Enhancing The Urban Environment Through Green Infrastructure, John R. Nolon

Pace Law Faculty Publications

This Article is adapted from Chapter Seven of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published by ELI Press. The book describes how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article follows the steady advance in the use of green infrastructure in recent years, and details its value as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing ...


The Neo-Liberal Turn In Environmental Regulation, Jason J. Czarnezki Jan 2016

The Neo-Liberal Turn In Environmental Regulation, Jason J. Czarnezki

Pace Law Faculty Publications

Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to ...