Law Commons^™

Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad

All Faculty Publications

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …

New York Environmental Legislation In 2023, Michael B. Gerrard

Faculty Scholarship

In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article.

The Intentional Community: Toward Inclusion And Climate-Cognizance, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In adapting communities to new levels of fairness, we must resist the notion that building equitable and accessible communities is antagonistic to building climate-cognizant communities. This paper will raise some of the core points in this endeavor and will offer suggestions for finding harmony between the two ends through creating communities with intention.

In Part I, I offer some details on what climate change, if unheeded, portends most in our daily lives. In Part II, I tell tales of two cities to frame the larger discussion. In Part III, I highlight some social, political, and economic history that produced a …

Sustainability In Public Procurement, Corporate Law And Higher Education (Introduction), Paolo Davide Farah

Book Chapters

Lela Mélon’s edited collection brings a fresh perspective to the intricate relationship between corporations and sustainability. The book focuses on the role of state actors in boosting environmental protection and the increasing importance of state awareness on environmental crises. Whether it is procurement, or education or corporate governance, we are witnessing a proactive stance of the state that is balancing economic growth with ecological concerns. The difficulties faced in forcing a particular conduct in the private sphere is reviewed in detail in the book, along with national laws and regulations that, rather than promoting environmental protection, have had the opposite …

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

All Faculty Publications

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

Articles

No abstract provided.

Climate Chauvinism: Rethinking Loss & Damage, Nadia B. Ahmad, Victoria Beatty

Faculty Scholarship

No abstract provided.

Research Priorities For Climate Litigation, Jessica A. Wentz, Delta Merner, Benjamin Franta, Alessandra Lehmen, Peter C. Frumhoff

Sabin Center for Climate Change Law

This article characterizes key research gaps and opportunities for scientists across disciplines to do work that informs the rapidly growing number of climate lawsuits worldwide. It focuses on research that can be used to inform legal decisions about responsibility for greenhouse gas emissions and climate damages. Relevant lawsuits include claims filed against government and corporate defendants alleging that they have violated environmental, human rights, constitutional, tort, and consumer protection laws due to their contributions to climate change and failures to control emissions. Constructive attention has recently been given to the important role of attribution science in informing some of these …

Climate Justice In The Anthropocene And Its Relationship With Science And Technology: The Importance Of Ethics Of Responsibility, Paolo Davide Farah, Alessio Lo Giudice

Articles

Climate change is a global phenomenon. Therefore, globalization is the necessary hermeneutical horizon to develop an analysis of the metamorphosis climate change could cause at a political, social, and economic level. Within this horizon, this Article shows how the relationship between the concept of the Anthropocene epoch and the request for justice allows for framing a climate-justice and intergenerational equity–focused political interpretation of the effects of climate change. In order to avoid reducing such an interpretation to merely an ideological critique of capitalism, the conception of climate justice needs to be grounded in a rational, ethical model. This Article proposes …

The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah

All Faculty Publications

Climate change litigation continues to bash holes in the view of domestic legal systems as hermetically sealed units. Domestic cases are inspired by litigation elsewhere, actively fostered by transnational advocacy communities, and the decisions themselves are indicative of transjudicial influences and sometimes even dialogue on climate change. This chapter, written in 2021 to reflect the transnationalism of early climate change litigation, takes a close look at practices of transjudicialism in climate change litigation. In so doing, it seeks to disrupt some default patterns of studying the spread of law. By problematizing the practices of ‘finding’ influential climate law cases, measuring …

Climate Science In Adaptation Litigation In The U.S., Jacob Elkin

Sabin Center for Climate Change Law

The most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—but as climate impacts become more frequent, extreme, and intense, adaptation litigation will increase. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change. This research oftentimes consists of one of two types of climate research: attribution studies of climate change to date, and future projections of climate change and its impacts.

Climate change attribution links human activity to climate change, especially changes in the statistics of extreme weather events. Increasingly, it is also beginning to be applied to impacts …

Pandemics And Housing Insecurity: A Blueprint For Land Use Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

COVID-19, racial inequity, housing insecurity, and climate change have come together to create widespread, large-scale crises. This Article introduces these four pandemics and describes in detail what local governments are doing to combat one of them: housing insecurity. It reviews recent progress with traditional inclusionary zoning requirements, discusses the move toward greater density in single-family zoning, lists strategies being used to remediate distressed housing, and notes the importance of affordable housing as a necessary strategy for preventing lower-income household displacement caused by gentrification. The reciprocal impacts of these four pandemics are clear; local land use leaders should examine how mitigating …

Adapting To A 4°C World, Karrigan Börk, Karen Bradshaw, Cinnamon P. Carlarne, Robin Kundis Craig, Sarah Fox, Joshua Ulan Galperin, Shi-Ling Hsu, Katrina F. Kuh, Kevin Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J.B. Ruhl, James Salzman, David Takacs, Clifford J. Villa

Elisabeth Haub School of Law Faculty Publications

The Paris Agreement's goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

Comparative Analysis Between Saudi Arabia And Norway In Moving Beyond Fossil Fuels Towards A Sustainable Economy: A Special Emphasis On The Renewable Energy Sector, Saad Nasser Alqahtani

Dissertations & Theses

Saudi Arabia is the largest economy in the Middle East and the 18th largest in the world. The country has the world's second-largest proven petroleum reserves and is the largest exporter of petroleum. In 2016, Saudi Arabia had the third highest estimated value of natural resources at $34.4 trillion (US). However, because of the 2014 oil crash, climate change, and the development of renewable energy technology, the government has decided to transition from its complete reliance on oil revenues and to start investing heavily in other non-oil sectors, such as the renewable energy sector. The Saudi government plans to generate …

Vulnerable Populations: Climate Change And Extreme Weather Threats Facing Urban Communities, Kara Consalo

Journal Publications

This article explores increasing extreme weather threats facing American cities due to global climate change, including hurricanes, floods, heat waves, and wildfires. After explanation of such threats, the paper delves into case studies of the response and resiliency measures being undertaken by three preeminent coastal American cities to prepare for weather disasters: New York, Miami, and San Francisco. The paper concludes by providing guidance and recommendations for urban policymakers seeking to develop resiliency measures in the face of long-term effects and short-term emergencies created by climate and weather extremes. Such recommendations include how to initiate and fund development of climate …

Clean Air Act Section 115: Is The Ipcc A 'Duly Constituted International Agency'?, Adam D. Orford

Scholarly Works

Does EPA’s receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency’s duties under Clean Air Act § 115? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA’s imposition of nationwide greenhouse gas regulation to combat climate change. One way to justify this, or compel it, is to trigger EPA’s duties “upon receipt of reports, surveys or studies from any duly constituted international agency.” This article …

Adaptive Rezoning For Social Equity, Affordability And Resilience, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this Article, I will show how the legacies of the institutional barriers to housing still persist to deprive many of the predicates for economic thriving and personal flourishing and how existing zoning philosophy cannot be justified by the need to protect health and safety. Righting the inequities of the past and of the present will require dismantling some of the institutions, apparently legitimate and well-meaning, but operating devilishly to create and perpetuate hardship and exclusion. This will require laying bare the institutions to reveal their ignoble essence. We need a radical overhaul of the historic zoning regime from one …

The Unfccc Regime At A Crossroads: Can You Trust Anyone Over 30?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The UN Framework Convention on Climate Change (UNFCCC) was adopted in 1992 and it was opened for signature at Rio de Janeiro in June of that year. The 30th anniversary of its adoption offers an opportunity to reflect on more than a quarter of a century of UN climate diplomacy, and to consider the path ahead. This contribution takes a look back at the choices made that have led the regime to its current state. It then takes a look forward and considers the prospects of the regime meeting its ultimate aim of avoiding dangerous human interference with the climate …

Effective Integration Of Climate Change Into Impact Assessment: The Importance Of Meaningful Public Engagement, Meinhard Doelle, Adebayo Majekolagbe

Articles, Book Chapters, & Popular Press

In this chapter, we consider the role of the public and the benefits of participatory approaches for the effective consideration of climate change in impact assessments in the light of three starting assumptions, which we refer to as ‘climate realities’. The first climate reality is the need for full decarbonization within the next 30 years. The second climate reality is that even a ‘well below 2 degrees’ world will result in fundamental changes to ecological and social systems that will require active management, and it is far from clear whether this well below 2 degrees goal will be met. The …

Comparing Russian And Canadian Climate Policy: Protecting Arctic Interests?, Meinhard Doelle, Roman Dremliuga

Articles, Book Chapters, & Popular Press

The global human influence on the climate is growing at an alarming pace. This trend appears doomed to continue. Polar regions are feeling the effects first. This means that if the impacts of climate change serve to motivate effective policies, polar regions could be a good place to look for climate policy innovation. It is within this context that this article considers Arctic climate policy in Russia and Canada. The basic question posed is whether the unique and immediate threat climate change presents in the Arctic is reflected in progressive laws and policies with respect to four key areas: mitigation, …

Human Rights At The Ocean-Climate Nexus: Opening Doors For The Participation Of Indigenous Peoples, Children And Youth, And Gender Diversity, Unwana Udo, Tahnee Prior, Sara L. Seck

Articles, Book Chapters, & Popular Press

No abstract provided.

Four Perspectives On A Sustainable Future In Nosara, Costa Rica, Greg Munno, Álvaro Salas Castro, Tina Nabatchi, Christian M. Freitag

Articles by Maurer Faculty

The town of Nosara on Costa Rica’s Nicoya peninsula is home to a vibrant community of diverse residents and is adjacent to an important turtle nesting site. However, tensions between lifelong residents, more recent transplants, visitors, and developers have increased as more of the world discovers this once-isolated haven. Climate change, income inequality, and alienation from a distant government apparatus have further complicated effective land-use planning and fractured social cohesion. Using a mixed-method approach of in-depth interviews (n = 67), Q methodology (n = 79), and public deliberation (n = 88), we explored residents’ priorities for the future of their …

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common …

Nature-Based Solutions To Sea Level Rise And Other Climate Change Impacts On : A Law And Policy Perspective, Meinhard Doelle, Tony George Puthucherril

Articles, Book Chapters, & Popular Press

There are several nature-based adaptation options available to coastal nations. In this paper, we offer a brief overview of these options and then focus on mangroves to consider how laws and policies can support nature-based solutions and thereby contribute to more effective overall adaptation efforts. We first outline the concept of adaptation and its variants, thereby setting the context for this study. We then briefly explore the science relating to nature-based adaptation. We analyze the international legal regime in place to protect mangrove ecosystems. Finally, we discuss the merits, the challenges, and strategies developed to surmount some of the challenges …

The Impact Of Climate Change On Virginia's Coastal Areas, Jonathan L. Goodall, Antonio Elias, Elizabeth Andrews, Christopher "Kit" Chope, John Cosgrove, Jason El Koubi, Jennifer Irish, Lewis L. Lawrence Iii, Robert W. Lazaro Jr., William H. Leighty, Mark W. Luckenbach, Elise Miller-Hooks, Ann C. Phillips, Henry Pollard V, Emily Steinhilber, Charles Feigenoff, Jennifer Sayegh

Faculty Publications

As part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and …

Environmental Law Disrupted By Covid-19, Katrina Fischer Kuh, Lissa Griffin, Rebecca Bratspies, Vanessa Casado Perez, Robin Kundis Craig, Keith Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Elisabeth Haub School of Law Faculty Publications

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.

Advocating For The Future, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

Faculty Works

Attorneys in our varied roles need to step up and address the climate crisis for the sake of every person and for the public good. All lawyers must be sustainability lawyers now. This article explains why; it also offers an illustrative set of suggestions on how to get started and what to do.

Integrating Climate Change Into Environmental Impact Assessments: Key Design Elements, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper explores the integration of climate mitigation into the environmental impact assessment processes. The focus here is on the much neglected mitigation element (which is defined to include GHG emissions as well as impacts on natural sinks such as forests, soils, grasslands and oceans). To this end, the paper considers how to integrate the GHG emission and sinks impacts of projects at five critical stages of the assessment process: triggering, information gathering, analysis, the project decision, and post-approval follow-up.

Esg And Climate Change Blind Spots: Turning The Corner On Sec Disclosure, Cynthia A. Williams, Donna M. Nagy

Articles by Maurer Faculty

This article examines four areas in which the SEC, for more than a decade, resisted reform or impeded shareholders’ access to sought-after environmental, social, and governance (ESG) information. These areas are: (1) the SEC’s refusal to act on several rulemaking petitions submitted during the years 2009 to 2018, which called for expanded ESG disclosure; (2) the SEC’s grudging promulgation of rules concerning social disclosures as required by Congress in the Dodd-Frank Act of 2010; (3) the SEC’s 2020 revisions to SEC Rule 14a-8, which make the submission of shareholder proposals more difficult, thereby thwarting investor efforts to raise ESG concerns; …

The Legal And Administrative Risks Of Climate Regulation, Jonathan Adler

Faculty Publications

Dramatic and rapid reductions in greenhouse gas emissions are necessary to stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Prioritizing federal environmental regulation as the primary means of achieving these goals may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Climate legislation can reduce the legal risks and accelerate the rate of policy implementation, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may …