Law Commons^™

Transboundary Waters, Annie Brett

UF Law Faculty Publications

In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …

Raping Indian Country, Sarah Deer, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

In this article, we have examined the policies of the Trump Administration as they relate to extractive development on and near Indian country, and policies related to the protection of Native people from rape and sexual assault. As demonstrated above, the Administration’s policies are likely to increase both the environmental and physical vulnerabilities of Native people. Native people will not only likely face exasperated physical insecurity, but their environments will likely be increasingly stripped on natural resources. As a result, the raping of Indian county continues. But, this article is not without hope. At least two ways forward, improvements upon …

Critical Issues In Transportation 2019: Climate Change Resilience, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

The climate is rapidly changing, bringing more frequent and extreme floods, droughts, and heatwaves, along with stronger hurricanes and more intense wildfires. Each year brings new record-breaking weather extremes; in the first six months of 2019, for example, a record number of U.S. counties flooded. July 2019 was the hottest month ever recorded for the world as a whole (1). Climate change is also melting glaciers, reducing the amount of sea ice, and raising sea levels, bringing devastation to coastal areas. From Louisiana to Alaska, many coastal communities are forced to make difficult decisions about whether to relocate …

Dealing With Climate Change Under The National Environmental Policy Act, Arnold W. Reitze Jr.

Utah Law Faculty Scholarship

The National Environmental Policy Act (NEPA) was an important environmental law for several decades before climate change became an issue of concern. Beginning in the 1990s efforts began to include in NEPA’s environmental assessments and environmental impact statements both the impact of federal government actions on climate change and the impact of climate change on proposed federal actions. These efforts were encouraged by the Council on Environmental Quality. However, implementation at the agency level has been uneven. Some Federal agencies have resisted making serious efforts to incorporate climate change impacts into their decision-making process. Moreover, the courts have not been …

The Federal Government Has An Implied Moral Constitutional Duty To Protect Individuals From Harm Due To Climate Change: Throwing Spaghetti Against The Wall To See What Sticks, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The continuing failure of the federal government to respond to the growing threat of climate change, despite affirmative duties to do so, creates a governance vacuum that the Constitution might help fill, if such a responsibility could be found within the document. This Article explores textual and non-textual constitutional support for that responsibility, finding that no single provision of the Constitution is a perfect fit for that responsibility. However, the document as a whole might support constitutionalizing an environmental protection norm as an individual right or affirmative government obligation given the norm's importance to the enjoyment of other constitutional rights …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

From Paris To Pittsburgh: U.S. State And Local Leadership In An Era Of Trump, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

States and cities have long been leaders on clean energy and climate policy. Their work has informed development of federal policies including motor vehicle standards and the Clean Power Plan. With the election of President Trump and the increasingly severe impacts of climate change, subnational leadership has become even more important and urgent. In response, many states and cities have pledged to enact new policies to mitigate the effects of climate change and help communities adapt. This Article focuses on recent developments in subnational leadership on both climate mitigation and adaptation to demonstrate the breadth and depth of engagement by …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy

Publications

No abstract provided.

Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy

Publications

This article will first offer a functional synopsis relevant to its remit, of the concept of sustainable development (SD) embodied in international law and policy that reflects a tension between economic and social claims as contrasted with environmental protection. While the dominant place acquired by the economic and social dimensions of SD will be recognized, it will argue consistent with the predicate of justice discussed in the article, that the protection of the human environment encompasses the plight of the energy poor and their women and children. Second, the article will delineate the contours of one of the great developmental …

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 …

Reversing Course On Environmental Justice Under The Trump Administration, Uma Outka, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

This Article traces how policy reversals in the first years of the Trump Administration implicate protections for diverse, low-income communities in the context of environmental pollution and climate change. The environmental justice movement has drawn critical attention to the persistent inequality in exposure to environmental harms, tracking racial and income lines. As a result of decades of advocacy, environmental justice has become an established, if not realized, principle in environmental law. Shifting positions under the Trump Administration now undermine this progress. To illustrate, this Article uses three exemplary contexts — agency transition, environmental law implementation, and international relations on climate …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …

Environmental Justice And The Hesitant Embrace Of Human Rights, Dayna Nadine Scott

Articles & Book Chapters

This chapter explores some of the tensions inherent in employing ‘rights strategies’ in environmental justice movements. Using the example of a judicial review application brought by Indigenous environmental justice activists in Canada demonstrates the symbolic power of using rights-based language for environmental justice, but also underscores the serious procedural, logistical and resource barriers that frustrate these groups in their attempts to deploy litigation tactics. Legal scholars need to think critically about ‘rights-talk’ and confront the hard questions about its utility for advancing environmental justice. In working with communities, we must learn to listen to what communities want before we default …

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.

No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

You have likely seen the bumper sticker, bold white text on a green background, reading “No Farms No Food.” The sticker is a product of, and in fact a tagline for, the American Farmland Trust. On the one hand, the point is obvious: As American Farmland Trust puts it, “[e]very meal on our plates [c]ontains ingredients grown on a farm. We all need farms to survive.” On the other hand, what seems like a plain statement on its face, “no farms no food,” is not so simple. Farms produce affordable food, they produce vast quantities of food, they produce healthy …

Foreword: Private, Environmental, Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is the invited foreword to the 2017 J.B & Maurice C. Shapiro Environmental Law Symposium issue of the George Washington Journal of Energy and Environmental Law. The 2017 symposium was dedicated to the issue of private environmental governance. This essay recognizes the incredible growth of private environmental governance as an area of study in the legal academy. In addition to introducing the various contributions to the symposium issue, this essay proposes that rather than merely studying "private environmental governance" as an independent concept, scholars should look closely at the individual components, "private," "environmental," and "governance," to better understand …

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).

Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2017, district courts decided several issues that the United States Court of Appeals for the Eleventh Circuit had never addressed. The United States District Court for the Middle District of Georgia concluded that the Clean Water Act's (CWA) prohibition on the discharge of pollutants into waters of the United States without a permit extended to discharges into groundwater with a "direct hydrological connection" to surface waters within the Act's scope. The court also concluded that a state-permitted land application system, whereby wastewater is sprayed onto fields as means of treatment and disposal, constituted a "point source" within the meaning …

Making Existing Homes Greener, James Smith

Scholarly Works

The environmental movement that has taken hold in the last half-century includes the objective of reducing the adverse impacts buildings have on the natural environment. In the United States, this has manifested itself in changes in the design and construction of buildings. Modern buildings-those built recently-perform better with respect to some, but not all, environmental criteria than older buildings. The most prominent characteristic is the efficiency of energy use for heating, cooling, and appliances.

Even when the combination of building codes and voluntary standards work effectively to promote the construction of new green homes, they cannot provide a solution with …

Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley

Articles by Maurer Faculty

The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental …

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big …

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Galperin

Articles

This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).

Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin

Articles

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …