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

Law Commons

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

Articles 1 - 30 of 70

Full-Text Articles in Law

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein Jan 2019

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein

UF Law Faculty Publications

The National Flood Insurance Program (“NFIP”) of 1968 marked its fiftieth anniversary in 2018. Despite the program’s long history, few appreciate that the NFIP was never intended as a permanent federal subsidy for flood-prone properties along rivers and coastlines abandoned as commercially unviable by the private insurance industry. Instead, Congress provided flood insurance at below-cost rates as only an interim solution until state and local governments enacted permanent self-help land-use regulations that would restrict development in risky areas. By encouraging local governments to enact floodplain regulations, Congress intended to shift the costs of development in known flood areas back ...


Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo Jan 2019

Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo

UF Law Faculty Publications

The current morass of federal environmental laws has led to significant conflicts among statutes and the manner in which agencies implement them. In recent years, this quagmire of environmental laws has hindered the progress of a number of high-profile environmental regulatory programs and restoration projects. Neither the Courts nor legal scholars have developed approaches to resolving conflicts in a manner that harmonizes environmental statutes while at the same time protecting the most critical environmental resources. A standard methodology that optimizes the multiple objectives of environmental statutes and their implementing programs would greatly enhance decision-making and ensure that the most salient ...


Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee Jan 2018

Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee

UF Law Faculty Publications

Reducing the United States’ greenhouse gas emissions by at least 80% from 1990 levels by 2050 will require multiple legal pathways for changing its transportation fuel sources. The Deep Decarbonization Pathways Project (DDPP) authors characterize transforming the transportation system as part of a third pillar of fundamental changes required in the U.S. energy system: “fuel switching of end uses to electricity and other low-carbon supplies.” The goal is to shift 80%-95% of the miles driven from gasoline to energy sources like electricity and hydrogen. Relying upon the DDPP analysis, this Article, excerpted from Michael B. Gerrard & John C ...


Beach Law Cleanup: How Sea-Level Rise Has Eroded The Ambulatory Boundaries Legal Framework, Alyson C. Flournoy Jan 2017

Beach Law Cleanup: How Sea-Level Rise Has Eroded The Ambulatory Boundaries Legal Framework, Alyson C. Flournoy

UF Law Faculty Publications

As the sea level rises, the boundaries between privately owned coastal property and sovereign submerged lands held in public trust are becoming increasingly contested. The common law doctrines that determine these boundaries under conditions of change—primarily accretion, erosion, reliction, and avulsion—have important implications for all those involved in adaptation planning along our coasts. This includes private owners of coastal property, local government officials seeking to develop and implement adaptation strategies, beachgoers seeking to use shrinking beaches, beach-tourism-dependent businesses, and courts facing cases involving boundary disputes at the water’s moving edge. This paper raises the questions of whether ...


Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen Jan 2016

Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen

UF Law Faculty Publications

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. The ...


Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown Jul 2014

Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown

UF Law Faculty Publications

This Article proposes a novel approach to addressing global climate change's impacts on agricultural production and food security. The climate change crisis is the most significant environmental issue facing our planet. The changes predicted to occur as the earth's climate warms include significant impacts to agriculture. At the same time that the planet is undergoing dramatic climatic changes, the global population is increasing, and economic development in many parts of the world is exerting increased demand for a greater and more diverse supply of food.

The relationship between climate change and agriculture is a close and complex one ...


Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris May 2014

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration ...


Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein Mar 2014

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

UF Law Faculty Publications

Climate change adaptation is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and ...


Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster Jan 2014

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that the agency ...


Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson C. Flournoy, Allison Fischman Jul 2013

Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson C. Flournoy, Allison Fischman

UF Law Faculty Publications

This Article raises the question of how we should assess the potential threat to wetlands posed by the impacts of a changing climate and considers the role that section 404 of the Clean Water Act can play both in assessing and responding to that threat. Our inquiry is two-fold. First, should we be concerned about climate impacts on wetlands? And if so, how can section 404 help us to assess and respond to this threat?

Part I surveys the scientific literature on the projected impacts of climate change of particular relevance to wetlands and the impacts anticipated for particular types ...


Strategies For Making Sea-Level Rise Adaptation Tools 'Takings-Proof', Michael Allan Wolf Apr 2013

Strategies For Making Sea-Level Rise Adaptation Tools 'Takings-Proof', Michael Allan Wolf

UF Law Faculty Publications

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This article ...


Compartmentalized Thinking And The Clean Water Act, Christine A. Klein Jan 2013

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

UF Law Faculty Publications

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In ...


Water Bankruptcy, Christine A. Klein Dec 2012

Water Bankruptcy, Christine A. Klein

UF Law Faculty Publications

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as ...


The Tipping Point Of Federalism, Amy L. Stein Nov 2012

The Tipping Point Of Federalism, Amy L. Stein

UF Law Faculty Publications

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate ...


The Environmental And Social Injustice Of Farmworker Pesticide Exposure, Joan D. Flocks Jan 2012

The Environmental And Social Injustice Of Farmworker Pesticide Exposure, Joan D. Flocks

UF Law Faculty Publications

Farmworkers in the United States are recognized as an environmental justice community. The farmworker population is low-income and primarily Hispanic, and is at a disproportionate risk from exposure to an environmental contaminant pesticides. Farmworkers face distributional, procedural, corrective, and social challenges with this exposure, as is common with other environmental justice communities. Social challenges include socioeconomic and political inequities that are grounded in the historical domination of the agricultural industry over its labor force. The production and use of pesticides is a function of the economic priorities of industry. Employers profit from pesticide use and are able to maximize their ...


Comprehensive Seagrass Restoration Planning In Southwest Florida: Science, Law And Management, Althea S. Hotaling, R. Benjamin Lingle, Thomas T. Ankersen Jul 2011

Comprehensive Seagrass Restoration Planning In Southwest Florida: Science, Law And Management, Althea S. Hotaling, R. Benjamin Lingle, Thomas T. Ankersen

UF Law Faculty Publications

In coastal Florida, the development and maintenance of docks, marinas, and channels frequently cause destruction of seagrass beds. Seagrass loss is accompanied by a loss of the ecosystem services the beds provide, such as sediment stabilization, water filtration, protection from storms, and habitat and nursery grounds for fish species. The current legal framework for seagrass protection and the implementation of mitigation for seagrass loss could be improved. In this Article, the authors argue that policymakers could revise the Uniform Mitigation Assessment Method to include more assessments related specifically to the ecology of seagrass beds and their ecosystem services. Seagrass mitigation ...


Three Meta-Lessons Government And Industry Should Learn From The Bp Deepwater Horizon Disaster And Why They Will Not, Alyson C. Flournoy Jan 2011

Three Meta-Lessons Government And Industry Should Learn From The Bp Deepwater Horizon Disaster And Why They Will Not, Alyson C. Flournoy

UF Law Faculty Publications

There are many law and policy lessons to be learned from the BP Deepwater Horizon disaster and its aftermath. Some are lessons specific to the BP oil well blowout. Regrettably, Congress has failed to enact even these critical reforms, although some important regulatory reforms have been adopted. This Article focuses on three broader lessons that this disaster should also teach, but that are very unlikely to be learned; lessons that could help to reduce the risk of future disasters. These meta-lessons suggest the need to: (1) learn from the next disaster-not the last one; (2) learn from the blueprint of ...


The Dormant Commerce Clause And Water Export: Toward A New Analytical Paradigm, Christine A. Klein Jan 2011

The Dormant Commerce Clause And Water Export: Toward A New Analytical Paradigm, Christine A. Klein

UF Law Faculty Publications

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska ex rel. Douglas. Determining that groundwater is an article of commerce, the Court held invalid under the dormant Commerce Clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas has challenged Oklahoma legislation limiting water exports, and as Wind River L.L C ...


Small, Slow, And Local, Mary Jane Angelo Jan 2011

Small, Slow, And Local, Mary Jane Angelo

UF Law Faculty Publications

The United States is in the middle of a significant cultural shift. Until very recently, United States citizens and policy-makers were willing to accept, or at least tolerate, what has become our food status quo--a highly subsidized, centralized, industrial food system that is environmentally harmful and unsustainable and encourages unhealthy eating habits. Many citizens and policy-makers are now demanding that we re-evaluate our entire agricultural system from farm to table and look for ways to develop a new food paradigm that is environmentally sound, sustainable, socially equitable, and that makes healthy whole foods available to all.

During the summer of ...


Corn, Carbon, And Conservation: Rethinking U.S. Agricultural Policy In A Changing Global Environment, Mary Jane Angelo Apr 2010

Corn, Carbon, And Conservation: Rethinking U.S. Agricultural Policy In A Changing Global Environment, Mary Jane Angelo

UF Law Faculty Publications

This Article explores a range of issues related to both the regulatory and incentive-based federal programs that affect the crops we grow, the manner in which they are grown, and the human and environmental impacts of such programs. The Article evaluates the 2008 Farm Bill and describes how the policies contained in it influence virtually every aspect of agriculture, from the decision to grow certain crops, the amount of crops grown, the industrial manner. This Article focuses on one particular commodity, corn, which while ubiquitous and seemingly pedestrian, is perhaps one of the major environmental offenders, and for which the ...


Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change: The Expanding The Constraining Boundaries Of Legal Space And Time And The Challenge Of The Anthropocene, Winston P. Nagan, Judit K. Otvos Apr 2010

Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change: The Expanding The Constraining Boundaries Of Legal Space And Time And The Challenge Of The Anthropocene, Winston P. Nagan, Judit K. Otvos

UF Law Faculty Publications

The idea of legal theory as a self-conscious theory for inquiry about law has opened up the framework of observation and participation. It has heightened social responsibility in ways that have been creative and receptive to analogies and metaphors from the developments in modern science. This paper explores some of these dominant borrowed metaphors. It further emphasizes the importance of the wide range of concerns in law technically, as well as the law’s capacity to manage and manipulate space and time implicating such issues as weapons of mass destruction, rights of indigenous people, deforestation, and climate change. By giving ...


Climate Change Under Nepa: Avoiding Cursory Consideration Of Greenhouse Gases, Amy L. Stein Jan 2010

Climate Change Under Nepa: Avoiding Cursory Consideration Of Greenhouse Gases, Amy L. Stein

UF Law Faculty Publications

Neither the National Environmental Policy Act (“NEPA”) nor its implementing regulations require consideration of climate change in NEPA documentation. Yet an ever-growing body of NEPA case law related to climate change is making it increasingly difficult for a federal agency to avoid discussing the impacts of those emissions under NEPA in its Environmental Impact Statements (“EISs”). Although consideration of climate change in NEPA documents sounds right in theory, within the current legal framework, the NEPA documents provide only lip service to the goals of NEPA without any meaningful consideration of climate change. An empirical evaluation of two years of selected ...


State Fish Stocking Programs At Risk: Takings Under The Endangered Species Act, Amy L. Stein Jan 2010

State Fish Stocking Programs At Risk: Takings Under The Endangered Species Act, Amy L. Stein

UF Law Faculty Publications

Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a ...


Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann Jul 2009

Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann

UF Law Faculty Publications

This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules -- common law and statutory, old and new. In rare cases -- including that of Florida -- the process may be more comprehensive, one through ...


The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein Jan 2009

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein

UF Law Faculty Publications

In 2007, the nation entered its greatest financial downturn since the Great Depression of the 1930s. What followed was a period of national introspection. Although prescriptions for financial rescue varied widely in the details, a surprisingly broad consensus emerged as to the underlying pathology of the crisis. This Article explores three principal contributing factors and the lessons associated with each that make up this pathology. These factors include: rejecting rules through deregulation, trivializing risk through overly optimistic analyses, and overconsumption supported by reckless borrowing and lending practices.

The powerful lessons from this pathology, considered by a stunned nation in the ...


Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy Jan 2009

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

UF Law Faculty Publications

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort ...


Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo Jan 2009

Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo

UF Law Faculty Publications

For decades, scientific and legal scholars alike have promoted the concept of "adaptive management" as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. This article uses adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience.


Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November Jan 2009

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

UF Law Faculty Publications

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on ...


Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford Jan 2009

Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford

UF Law Faculty Publications

The National Environmental Policy Act (NEPA), enacted in 1969, requires that agencies of the U.S. government or those seeking to use federal funds to construct projects study the environmental and social impacts of said projects. Under the provisions of NEPA, a first-level review must be conducted for all projects not otherwise exempted. If the entity conducting the review deems that the project will result in a significant impact on humans or the environment, an environmental impact statement (EIS) must be prepared. The decision about whether or not to prepare an EIS can be controversial due to the fact that ...


Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang Nov 2008

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang

UF Law Faculty Publications

As a metaphor for the interaction of law and culture, bottled water is striking in its simplicity and clarity. Bottled water consumers form a surprisingly loyal subculture of beverage drinkers, united by the water truths and water myths that they embrace. More recently, an equally fervent subculture of bottled water protestors has begun to coalesce. Notably, the cultural norms associated with both supporters and detractors extend beyond mere hydration and encompass such fundamental and varied notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast to the cultural story, the legal narrative is surprisingly sparse, overlooking an ...