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A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller
A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller
Elisabeth Haub School of Law Faculty Publications
I have been privileged to hear, enjoy and learn from the talks of each of our Garrison Lecturers during the last eight years, as well as our discussions with them here today. In preparation for my duties as a summarizer, I studied their talks, printed in our Pace Environmental Law Review. I was delighted to find that the body of their commentary is far more than the sum of its parts. Together our lecturers take us on a grand journey through the history of modern environmental law, its heroes and villains, its accomplishments and its weaknesses. Together they sound all …
Renewable Energy Sources For Development, Richard L. Ottinger
Renewable Energy Sources For Development, Richard L. Ottinger
Elisabeth Haub School of Law Faculty Publications
Renewable energy resources hold great promise for meeting the energy and development needs of countries throughout the world. This promise is particularly strong for developing countries where many regions have not yet committed to fossil fuel dominance. Solar photovoltaic and solar thermal technologies are particularly advantageous for serving the two billion people in rural areas without grid electricity. Modern biomass energy is attractive because it uses locally available agricultural wastes. Wind energy and small hydroelectric resources also are mature technologies well suited to developing countries. Such renewable resources are far more economical than traditional energy resources, especially where the costs …
Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson
Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
Environmental management has emerged as an important element of governance in practically every nation. This was not the case before the United Nations convened the 1972 Conference on the Human Environment in Stockholm. After Stockholm, nations learned to build environmental ministries and work across sectors nationally, and discovered how difficult it is to reshape entrenched national practices in order to curb pollution and conserve natural resources. With growing experience and knowledge, nations came to realize that no one government alone could safeguard the environment, and that international cooperation would need to be enhanced.
In Praise Of Parochialism: The Advent Of Local Environmental Law, John R. Nolon
In Praise Of Parochialism: The Advent Of Local Environmental Law, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This Article explains the role that local governments have assumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state level. Part II reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how …
Introduction: Considering The Trend Toward Local Environmental Law, John R. Nolon
Introduction: Considering The Trend Toward Local Environmental Law, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In this symposium issue of the Pace Environmental Law Review we take a close look at the advent of local environmental law. With the editors of the Review and a number of distinguished scholars and practitioners, we define what this new field is and consider what it means for public policy and the practice of law. The intent of this issue is to invite lawyers, scholars, practitioners, legislators, regulators, students, and citizen leaders to consider this burgeoning new field: local environmental law. It is my task to introduce the reader to the field and frame the issues for its further …
Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson
Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
ASEAN was founded with the 1967 Bangkok Declaration in order to encourage stable relations among its original member states, i.e. Indonesia, Malaysia, Singapore, Thailand and the Philippines, and to resist destabilizing influences from the war in Viet Nam. The means to stability was to promote economic, social and cultural cooperation in the spirit of equality and partnership. A formal treaty system was not required. As the Viet Nam war ended, ASEAN held its first Summit Meeting in Bali (1976), followed by the 1977 Summit in Kuala Lumpur, where cooperation on regional industrializations was launched. In this first phase of cooperation, …
Dean's Foreword, David S. Cohen
Dean's Foreword, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
This issue of the Pace Environmental Law Review contains a description of this emerging field of law and the response of the academic and legal community to it. As Professor Nolon reports in his introduction, we found eloquent coherence in these laws and saw how they fit together to form a comprehensive whole. We examined state statutes that authorized local governments to adopt environmental laws and discovered that they were diverse in nature but prevalent in many states. We also found state court decisions that upheld local environmental laws against the challenges of regulated property owners. We were troubled by …
Water Quality Trading: Bringing Market Forces To Bear In Watersheds, Alexandra Dapolito Dunn
Water Quality Trading: Bringing Market Forces To Bear In Watersheds, Alexandra Dapolito Dunn
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
David Ross Brower And Nature's Laws, Nicholas A. Robinson
David Ross Brower And Nature's Laws, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
“We're not blindly opposed to progress. We're opposed to blind progress.” These words summed up the style and power of David R. Brower. Indelibly, he chiseled toe hold after toe hold on an arduous climb across the rock face of the commercial forces driven to seek short-term gain from natural resources and oblivious to the longer-term costs to the Earth that the ecological sciences would chronicle but that economists would disregard as mere “externalities” in their classical market models. As Brower campaigned to protect the wilderness of North America and the Earth, through his sheer conviction and abundant eloquence, he …
Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan
Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State's interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members' interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over “cases and controversies” to the federal courts, …
Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson
Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
Decisionmakers disregard scientific findings regarding environmental conditions, despite recommendations of the 1992 "Earth Summit" in Agenda 21 that science should provide a foundation for sustainable development. Although environmental degradation trends continue to exacerbate, decisionmakers address only selected issues. This Article examines an analytic paradigm for evaluating when decisionmakers are ready to address a problem and describes the catalytic role that scientific information can serve in prompting remedial action. Unless systematic procedures require evaluation of environmental scientific findings in the normal course of decisionmaking, science will continue to be ignored. One hallmark of Environmental Law has been to fashion such procedures, …
Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson
Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
Without a better global effort to prevent and cope with forest fires, the remaining wild forests' resources of the world are at risk. Quite apart from the present loss of commercial timber and species habitat, and the present problems of flooding and erosion in the aftermath of fires, the loss of these wooded lands will reduce the capacity of regions to absorb carbon dioxide through photosynthesis, thereby making the challenge of managing emissions of greenhouse gases all the more problematic. Forests sequester carbon in their woody tissue as a result of photosynthesis, and are often termed the “lungs” of the …
The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller
The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller
Elisabeth Haub School of Law Faculty Publications
Judicial actions by private citizens have played a critical role in the development and enforcement of federal environmental law in the United States over several decades. The courts' general receptivity to the standing of private environmental plaintiffs has made that role possible. A troika of Supreme Court decisions on standing in environmental cases authored by Scalia J over the last decade had eroded that general receptivity, casting doubt on the continued vitality of private actions in developing and implementing environmental law. The Court's recent decision in Friends of the Earth Inc v Laidlaw Environmental Services halts this erosion. To explain …
Global Climate Change Kyoto Protocol Implementation: Legal Frameworks For Implementing Clean Energy Solutions, Richard L. Ottinger
Global Climate Change Kyoto Protocol Implementation: Legal Frameworks For Implementing Clean Energy Solutions, Richard L. Ottinger
Elisabeth Haub School of Law Faculty Publications
This paper describes the measures that have been and can be taken and the legal mechanisms by which successes have been achieved in reducing greenhouse gases. Examples are given of success stories from around the world, but these examples are just demonstrative. Many hundreds of programs have been pursued successfully around the world in both industrial and developing countries. What does emerge, however, is clear evidence that global warming can be effectively addressed and that many significant steps have been taken profitably in both the public and private sectors, offering significant business, export and job opportunities, and that much can …
Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto
Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto
Elisabeth Haub School of Law Faculty Publications
This Article examines the evolution of EPA's audit policy, explores the reasons for states' dissatisfaction with it, and then discusses whether the federal policy should have been issued as a rule under the Administrative Procedure Act (APA). Part I examines the evolution of the federal audit policy and then analyzes the strengths and weaknesses of the policy in its current form. Part II explores various types of evidentiary privilege and looks at the arguments for and against extending the privilege to audit reports. It then offers a similar analysis of the case for limited immunity, concluding that neither an expanded …
Gwaltney Of Smithfield Revisited, Ann Powers
Gwaltney Of Smithfield Revisited, Ann Powers
Elisabeth Haub School of Law Faculty Publications
This article returns to the earlier Gwaltney decision, looking both to the text of the Gwaltney opinion, and to internal memoranda demonstrating the debate which occurred among the justices themselves over the nature of the beast with which they were dealing: a confusing mixture of subject matter jurisdiction, substantive cause of action and constitutionally based standing requirements. This review leads to the conclusion that the opinion's lack of analytical clarity, which created substantial confusion for courts and litigants, could have been avoided by a more carefully reasoned work based on the Court's internal discussions. Further, the Court's decision in Steel …
Reducing Nitrogen Pollution On Long Island Sound: Is There A Place For Pollutant Trading?, Ann Powers
Reducing Nitrogen Pollution On Long Island Sound: Is There A Place For Pollutant Trading?, Ann Powers
Elisabeth Haub School of Law Faculty Publications
The purpose of this article is to examine the legal adequacy of proposals now under consideration for a nitrogen trading program on Long Island Sound, and to assess the likelihood of success in light of the experience with other trading programs, both for water and air pollution. Part I outlines the current environmental condition of Long Island Sound and explains the factors which have led proponents of trading to believe such a program could be effective. In Part II we consider the essential elements of a trading program, and the lessons to be learned from the Clean Air Act programs. …
The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson
The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
A decade ago, firefighters in a warehouse on the Rhine in Switzerland washed chemicals, solvents, and mercury into the river, destroying all life in the river for miles, killing millions of fish, and endangering the water supplies of cities in Germany and the Netherlands. This tragedy galvanized the river valley states into action. They vowed to clean up the river, not just from that incident but from the effects of having used the river as a sewer for two centuries. But how clean is clean? The goal for this calculated plan, which will take decades to achieve, is symbolized by …
Comparative Environmental Law Perspectives On Legal Regimes For Sustainable Development, Nicholas A. Robinson
Comparative Environmental Law Perspectives On Legal Regimes For Sustainable Development, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
As the world's largest summit meeting ended in Rio de Janeiro in 1992, the heads of state and their representatives assembled at the United Nations Conference on Environment and Development (UNCED), commonly referred to as Agenda 21. They embraced Agenda 21 as “a dynamic programme” which can “evolve over time in the light of changing needs and circumstances,” and as a process making “the beginning of a new global partnership for sustainable development.” Agenda 21 is premised on two factual perspectives. First, the documentation of trends in the deterioration of the environmental conditions in many parts of the world is …
Refracting The Spectrum Of Clean Water Act Standing In Light Of Lujan V. Defenders Of Wildlife, Karl S. Coplan
Refracting The Spectrum Of Clean Water Act Standing In Light Of Lujan V. Defenders Of Wildlife, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
First, this article will review the impetus and purposes for the Clean Water Act of 1972, including its citizen suit provision, particularly as these purposes relate to the elimination of specific harm or causation requirements in enforcement actions under its provisions. Second, this article will briefly review the basic elements of Article III standing requirements as enunciated by the Supreme Court, and the development of Supreme Court standing doctrine in environmental cases leading up to and including the Defenders of Wildlife decision. Then the article will survey the various approaches courts have taken in applying Article III standing doctrine to …
Attaining Systems For Sustainability Through Environmental Law, Nicholas A. Robinson
Attaining Systems For Sustainability Through Environmental Law, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
Five years have passed since the historic Earth Summit. Although significant progress has been made since Rio, much remains to be done. Poverty and environment degradation continue to affect the lives of millions of people in many parts of the world. Global warming, the loss of biological diversity, the spread of deserts, deforestation, the crisis in many of our cities remind us every day of the challenges which confront us. The unsustainable patterns of consumption and production continue to be the major cause of environmental degradation worldwide. This is therefore not an occasion for complacency or mindless celebration. It is, …
Summary Of The United States Seminar On Our National Environmental Laws, John R. Nolon
Summary Of The United States Seminar On Our National Environmental Laws, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
My objective today is to summarize the discussion that took place at a seminar we held in the United States which described and evaluated our nation's environmental protection laws. The purpose of that seminar was to draw from that experience lessons that should help us, and perhaps Argentina, as we both consider how to improve the laws that affect natural resource use and conservation in our countries.
Fusing Economic And Environmental Policy: The Need For Framework Laws In The United States And Argentina, John R. Nolon
Fusing Economic And Environmental Policy: The Need For Framework Laws In The United States And Argentina, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In an effort to discover the best legal strategies to respond to these new challenges, seminars were conducted among experts in economic development and environmental protection in both the United States and Argentina. The observations and recommendations of these experts have been summarized and published and will be referenced as appropriate. This article attempts to synthesize what was learned in these two seminars, the research conducted in preparation for them, and the ongoing discussion among the participants. It begins with a summary of the forces in both countries that call for a change in the legal system, shows how these …
The National Land Use Policy Act, John R. Nolon
The National Land Use Policy Act, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Professor Miller talked about a particular road that we traveled beginning in the 1970s. Professor Robinson discussed a different road that we traveled when we adopted the National Environmental Policy Act (NEPA) in 1969. I would like to talk about the road not traveled, a road that led in the direction that Professor Miller just charted. We considered a different more comprehensive approach in the early 1970s when our national environmental policies were being formed. The time may be right to reconsider what we then narrowly rejected, both here and in Argentina.
United States Pollution Control Laws, Jeffrey G. Miller
United States Pollution Control Laws, Jeffrey G. Miller
Elisabeth Haub School of Law Faculty Publications
The environmental assessment process established by NEPA has been a success and was a step forward on the path of integrating environmental and economic policy. The national pollution abatement laws that were adopted in the decade after NEPA, however, operate in a very different fashion. They, too, have been very successful in a number of important respects, but have achieved less than we had hoped for because of certain flaws in their design. To analyze these laws for us, I would like to introduce another colleague, Professor Jeffery Miller, who has also travelled in Argentina. In fact, Professor Miller conducted …
Welcome (Symposium On Framework Laws--The Key To Sustainable Development In The Americas), Richard L. Ottinger
Welcome (Symposium On Framework Laws--The Key To Sustainable Development In The Americas), Richard L. Ottinger
Elisabeth Haub School of Law Faculty Publications
This is a subject of deep interest to our law school. We have established one of the top environmental studies centers in the United States. In addition, we operate a nationally recognized energy law project, land use law center and international commercial law institute. Our interest is global and broad, focusing on the legal issues involved both in resource use and conservation and on applications at the local, national and international level. We take this broad approach for a simple reason: it is the approach that our graduates will have to take as they practice law in the global market …
Seminar On The Law Of Sustainable Development--United States, John R. Nolon
Seminar On The Law Of Sustainable Development--United States, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Welcome to a video seminar on the Law of Sustainable Development in Argentina and the United States. Our plan is to record these proceedings and show segments of them at a similar seminar to be held next month in Buenos Aires, Argentina.
The Law Of Sustainable Development, Nicholas A. Robinson
The Law Of Sustainable Development, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
I am going to talk briefly, as dictated by the format of this seminar, about the law of sustainable development and how it has been developing. Sustainable development is, today, the guiding theme for both public and private measures to improve social conditions and strengthen economic conditions around the world. It did not become a guiding theme overnight. The recognition that sustainable development is fundamental has been growing gradually. The concept recognizes that the sort of development that was popular in the 1960s and 1970s in the United States of America and elsewhere was, by itself, an inadequate base on …
Iucn's Proposed Covenant On Environment & Development, Nicholas A. Robinson
Iucn's Proposed Covenant On Environment & Development, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
This article examines the genesis and scope of the IUCN draft Covenant. It (a) describes IUCN's interest and experience in preparing the proposed draft Covenant; (b) analyzes the roles the draft Covenant can serve; and (c) identifies some illustrative precedents for the Articles of the draft Covenant.
The Case For State Pollution Taxes, Richard L. Ottinger
The Case For State Pollution Taxes, Richard L. Ottinger
Elisabeth Haub School of Law Faculty Publications
Pollution taxes are a sound environmental instrument. The principal means of controlling pollution in the United States is by command and control regulation, setting standards or limits on emissions and requiring particular pollution control technologies. Command and control regulation of pollution, while necessary to assure pollution reductions, has its limits. While much more certain of reducing pollution than pollution taxes would be, controls tend to be set only at levels that are politically acceptable. Seldom are the full social costs of pollution eliminated in pollution control standards, except where particularly noxious products are banned outright, such as the prohibitions against …