Law Commons^™

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

Brief Of Amici Curiae Dinah Bear, Robert Glicksman, Oliver Houck, Daniel Mandelker, Thomas Mcgarity, Robert Percival, Zygmunt Plater, Nicholas Robinson, And Gary Widman In Support Of Respondents, Monsanto Co. V. Geertson Seed Farms, No. 09-475 (U.S. Apr. 5, 2010), Hope M. Babcock

U.S. Supreme Court Briefs

No abstract provided.

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 …

Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano

Law Student Publications

This comment explores the Cape Wind project with an emphasis on its role as the first United States offshore wind energy project. Part II of this comment explains the potential energy resource that offshore wind provides and examines some of the economic, technological, and regulatory challenges facing the development of offshore wind projects in United States waters. Part III of this comment introduces the Cape Wind project as a case study by briefly describing the particular political struggles and permitting challenges faced by its developers. Part IV of this comment analyzes how DOI approval and the eventual construction of Cape …

Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by …

Qualitative, Quantitative, And Integrative Conservation, Jamison E. Colburn

Journal Articles

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative …

Environmental Awareness, Adam Sharpe, Blake Baron

Student Environmental Law Films/Golden Tree Films

The film "Environmental Awareness" quizzed law students about a variety of environmental issues, demonstrating that their knowledge of current events often is laughably deficient.

Just A Reminder, Paul Huntington

Student Environmental Law Films/Golden Tree Films

A musical exploration of the challenges of being a law student. Original music by Paul Huntington.

Siting Transmission Lines In A Changed Milieu: Evolving Notions Of The "Public Interest" In Balancing State And Regional Considerations, Jim Rossi, Ashley C. Brown

Vanderbilt Law School Faculty Publications

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition …

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Articles & Book Chapters

This Article examines the history of Canadian environmental law to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic, and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced …

A Comment On Watersheds: Runoff From The Tax Code, Kim Brooks

Articles, Book Chapters, & Popular Press

The role of tax as an instrument of social and economic policy has recently come to the fore in debates about the environment. This paper provides a short comment on a paper authored by Janet Milne that explores the incentive effects of the tax code on watershed protection.

Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd

Publications

The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little …

A Green Road To Development: Environmental Regulations And Developing Countries In The Wto, Jonathan Skinner

Publications

The WTO framework can accommodate enforceable environmentally protective measures.

Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd

Publications

Few areas of law are as deeply implicated with science and technology as environmental law, yet we have only a cursory understanding of how science and technology shape the field. Environmental law, it seems, has lost sight of the constitutive role that science and technology play in fashioning the problems that it targets for regulation. Too often, the study and practice of environmental law and governance take the object of governance--be it climate change, water pollution, biodiversity, or deforestation--as self-evident, natural, and fully-formed without recognizing the significant scientific and technological investments that go into making such objects and the manner …

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Energy And Climate Change: Key Lessons For Implementing The Behavioral Wedge, Michael P. Vandenbergh, Paul C. Stern, Gerald T. Gardner, Thomas Dietz, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

The individual and household sector accounts for roughly 40 percent of United States energy use and carbon dioxide emissions, yet the laws and policies directed at reductions from this sector often reflect a remarkably simplistic model of behavior. This Essay addresses one of the obstacles to achieving a “behavioral wedge” of individual and household emissions reductions: the lack of an accessible, brief summary for policymakers of the key findings of behavioral and social science studies on household energy behavior. The Essay does not provide a comprehensive overview of the field, but it discusses many of the leading studies that demonstrate …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert Abrams

Journal Publications

Conflicts over water allocation have, become a national topic, rather than a regional one confined to the West. Increased water use and projections for further increased demand are combining with the decline of stationarity to underscore the importance of having sound water management policies and a coherent plan for water allocation at the ready and capable of implementation. Historically, and in an earlier era of water federalism, the state police power was acknowledged as the proper locus for making water law and policy.

In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …