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Environmental Law

2009

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Articles 181 - 204 of 204

Full-Text Articles in Law

The Silver Anniversary Of The United States’ Exclusive Economic Zone: Twenty-Five Years Of Ocean Use And Abuse, And The Possibility Of A Blue Water Public Trust Doctrine, Mary Turnipseed, Stephen E. Roady, Raphael Sagarin, Larry B. Crowder Jan 2009

The Silver Anniversary Of The United States’ Exclusive Economic Zone: Twenty-Five Years Of Ocean Use And Abuse, And The Possibility Of A Blue Water Public Trust Doctrine, Mary Turnipseed, Stephen E. Roady, Raphael Sagarin, Larry B. Crowder

Faculty Scholarship

Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests ...


Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman Jan 2009

Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman

Faculty Scholarship

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem ...


Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson Jan 2009

Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson

Faculty Publications

This symposium’s issue on ‘Climate Justice and International Environmental Law: Rethinking the North–South Divide’ asks contributors to explore the intersection between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. In relation to the former, the author posits that there appears to be a profound disconnect between the law and the politics of climate change, one that reflects a broader disconnect between those who view the challenge posed by climate change through an ethical lens, and those ...


The Private Life Of Environmental Treaties, Natasha Affolder Jan 2009

The Private Life Of Environmental Treaties, Natasha Affolder

Faculty Publications

The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. The dominant grammar of treaty “compliance” equally fails to fit. Using a little-studied example - the UNESCO World Heritage Convention - this essay highlights the phenomenon of corporations ...


Gender-Benders': Sex And Law In The Constitution Of Polluted Bodies, Dayna Nadine Scott Jan 2009

Gender-Benders': Sex And Law In The Constitution Of Polluted Bodies, Dayna Nadine Scott

Articles & Book Chapters

This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies — but uncovers that ...


A Return To Common Sense: Protecting Health, Safety, And The Environment Through 'Pragmatic Regulatory Impact Analysis', Rena I. Steinzor, Amy Sinden, Sidney A. Shapiro, James Goodwin Jan 2009

A Return To Common Sense: Protecting Health, Safety, And The Environment Through 'Pragmatic Regulatory Impact Analysis', Rena I. Steinzor, Amy Sinden, Sidney A. Shapiro, James Goodwin

Faculty Scholarship

Health and safety regulations have a more powerful impact on the quality of life in America than any other affirmative decision the government makes, except perhaps decisions to go to war or pull in the social safety net. To a great extent, the purity of the food we eat and all the medicines we take, the quality of the air we breathe and the water we drink, the safety of industrial workplaces, and the preservation of the myriad natural systems that support life as we know it are dependent on how effectively government polices the side effects of manufacturing. Yet ...


The Hidden Human And Environmental Costs Of Regulatory Delay, Catherine O'Neill, Amy Sinden, Rena I. Steinzor, James Goodwin, Ling-Yee Huang Jan 2009

The Hidden Human And Environmental Costs Of Regulatory Delay, Catherine O'Neill, Amy Sinden, Rena I. Steinzor, James Goodwin, Ling-Yee Huang

Faculty Scholarship

Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies—the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA. Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last ...


The Globalization Of Environmental Law, Robert V. Percival Jan 2009

The Globalization Of Environmental Law, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law ...


The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival Jan 2009

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Faculty Scholarship

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers ...


The Problem With Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm And Standing Jurisprudence, Hope M. Babcock Jan 2009

The Problem With Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm And Standing Jurisprudence, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Several recent events harmonically converged into the topic for this article. The first was a posting on Georgetown Law’s environmental law professors’ listserv by Professor John Bonine, which raised a number of questions about whether and how standing doctrine might be rethought in light of the Supreme Court’s opinion in Massachusetts v. EPA. That opinion relaxed the states’ standing burden because of the unique sovereign interests, finding that federalism bargaining earned states “special solicitude” when it came to meeting the Court’s standing requirements.

The second was a complaint filed by a consortium of regional environmental organizations, Chesapeake ...


Streamlining Nepa To Combat Global Climate Change: Heresy Or Necessity?, Irma S. Russell Jan 2009

Streamlining Nepa To Combat Global Climate Change: Heresy Or Necessity?, Irma S. Russell

Faculty Law Review Articles

This article discusses the impact of the National Environmental Policy Act (NEPA) on the development of noncarbon energy sources and raises the question of whether the NEPA process should be altered to bring clean power online faster. The article examines the ability of the market to respond to the call for rapid adaptation to climate change and for rapid development of noncarbon sources of energy, given the regulatory environment and existing regulatory treatment of NEPA processes. In addition, the article examines examples of current streamlining of the NEPA process in the energy arena. The author notes arguments for and against ...


Assuming Personal Responsibility For Improving The Environment: Moving Toward A New Environmental Norm, Hope M. Babcock Jan 2009

Assuming Personal Responsibility For Improving The Environment: Moving Toward A New Environmental Norm, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

There is general agreement that we are nearing the end of achieving major gains in pollution abatement from traditional sources, that a significant portion of the remaining environmental problems facing this country is caused by individual behavior, and that efforts to control that behavior have either failed or not even been made.

The phenomenon of individuals as irresponsible environmental actors seems counterintuitive when polls show that people consistently rate protecting the environment among their highest priorities, contribute to environmental causes, and are willing to pay more to protect environmental resources.

This article is the author's second effort at understanding ...


Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez Jan 2009

Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez

Faculty Scholarship

Post-colonial societies endowed with abundant natural resources often under-perform economically when these resources are exploited as economic enclaves lacking significant linkages to other sectors of the economy. The Panama Canal, a symbol of Panamanian identity and a reminder of Panama's lengthy colonial history, has historically functioned as an economic enclave akin to the mineral extraction and industrial agriculture enclaves prevalent throughout the developing world. Based on a case study of the contentious decision to expand the Panama Canal, this article examines the ways in which the colonial legacy distorts the development planning process, and discusses strategies that might be ...


Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin Jan 2009

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

Scholarly Works

Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.


Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis Jan 2009

Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding ...


Civic Republicanism Provides Theoretical Support For Making Individuals More Environmentally Responsible, Hope M. Babcock Jan 2009

Civic Republicanism Provides Theoretical Support For Making Individuals More Environmentally Responsible, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The genesis for this essay is the recognition that individual behavior is contributing in a significant way to the remaining environmental problems we have. For a variety of reasons, ranging from the difficulty of trying to identify and then regulate all of these individual sources to the political backlash that might result if such regulation was tried, efforts to control that behavior have either failed or not been tried. The phenomenon of individuals as irresponsible environmental actors seems counter-intuitive given the durability of the environmental protection norm and polls that consistently show that people contribute to environmental causes, are willing ...


On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss Jan 2009

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at stake, how ...


Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss Jan 2009

Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss

Faculty Scholarship

The framework for judicial review of administrative interpretations of regulatory statutes set forth in the landmark Chevron U.S.A. v. Natural Resources Defense Council decision prescribes two analytic inquiries, and for good reason. The familiar two-step analysis is best understood as a framework for allocating interpretive authority in the administrative state; it separates questions of statutory implementation assigned to independent judicial judgment (Step One) from questions regarding which the courts role is limited to oversight of agency decisionmaking (Step Two).

The boundary between a reviewing court's decision and oversight roles rests squarely on the question of statutory ambiguity ...


Improving The Odds Of Government Accountability In The Disaster-Prone Era: Using The 9/11 Fund Factors To Remedy The Problem Of Toxic Katrina Trailers, Olympia Duhart Jan 2009

Improving The Odds Of Government Accountability In The Disaster-Prone Era: Using The 9/11 Fund Factors To Remedy The Problem Of Toxic Katrina Trailers, Olympia Duhart

Faculty Scholarship

This article analyzes the dangers surrounding the toxicity levels in the trailers issued to Katrina survivors by FEMA, and identifies serious medical complications stemming from the temporary homes. Lack of government oversight in the process led to the distribution of formaldehyde-laced trailers that cost the government more than $2 billion and continue to poison residents years after the storm. Furthermore, the failures connected to disaster relief are even more disturbing in this disaster-prone era. More importantly, this paper also proposes the creation of a Toxic Trailer Fund to compensate residents of toxic FEMA trailers. Using the factors implicitly established by ...


Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow Jan 2009

Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow

Scholarly Works

This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been ...


New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin Jan 2009

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

Scholarly Works

New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the ...


Responsible Environmental Behavior, Energy Conservation, And Compact Fluorescent Bulbs: You Can Lead A Horse To Water, But Can You Make It Drink?, Hope M. Babcock Jan 2009

Responsible Environmental Behavior, Energy Conservation, And Compact Fluorescent Bulbs: You Can Lead A Horse To Water, But Can You Make It Drink?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Despite professing to care about the environment and supporting environmental causes, individuals behave in environmentally irresponsible ways like driving when they can take public transportation, littering, or disposing of toxic materials in unsound ways. This is the author's fourth exploration of how to encourage individuals to stop behaving irresponsibly about the environment they allege to care deeply about. The prior three articles all explored how the norm of environmental protection could be enlisted in this effort; this article applies those theoretical conclusions to the very practical task of getting people to switch the type of light bulb they use ...


Green Helmets: Eco-Intervention In The Twenty-First Century, Linda A. Malone Jan 2009

Green Helmets: Eco-Intervention In The Twenty-First Century, Linda A. Malone

Faculty Publications

No abstract provided.


Super Wicked Problems And Climate Change: Restraining The Present To Liberate The Future, Richard J. Lazarus Jan 2009

Super Wicked Problems And Climate Change: Restraining The Present To Liberate The Future, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Climate change may soon have its “lawmaking moment” in the United States. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, limited budgets, appropriations riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable to being unraveled over time for ...