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Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon Jul 2008

Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon

Pace Law Faculty Publications

This article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates these five wedges and further organizes strategic energies. This builds on Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” I assert that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world.” The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the ...


The Externalities Of Nuclear Power: First, Assume We Have A Can Opener . . ., Karl S. Coplan May 2008

The Externalities Of Nuclear Power: First, Assume We Have A Can Opener . . ., Karl S. Coplan

Pace Law Faculty Publications

The nuclear power industry has latched on to global warming as an argument for its renaissance. Although even industry proponents acknowledge that the problem of disposing of spent nuclear fuel remains unsolved, the industry routinely assumes this problem will be solved in the future. Unfortunately, this is the same assumption made by nuclear energy proponents at the beginning of the nuclear industry fifty years ago. We haven’t solved the nuclear waste problem in the past half century, and there is no reason to think we will be more likely to do so in the next one. Like the shipwrecked ...


Farming The Ocean, Ann Powers Sep 2007

Farming The Ocean, Ann Powers

Pace Law Faculty Publications

Was that salmon you ate for lunch caught in the wild, chill waters of the North Atlantic? What about the mussels you had last night? Did they arrive on your table through traditional capture techniques, or were they a product of the fish-farming industry? And if so, does it matter? What else in your daily life might be a result of deliberate culture of once wild species? Protein in your pet's food, gel in your toothpaste and cosmetics, thickener in your pasta sauce, the seaweed in your sushi? For the most part we pay little attention to where our ...


Zoning, Transportation, And Climate Change, John R. Nolon Sep 2007

Zoning, Transportation, And Climate Change, John R. Nolon

Pace Law Faculty Publications

On February 2, 2006, the Intergovernmental Panel on Climate Change (IPCC) expressed the consensus of the scientific community that global warming is unequivocal and that its main driver is human activity. On April 7, 2007, the IPCC issued a second report detailing the likely consequences of climate change: widening droughts, more severe storm events, increased inland flooding, sea level rise, and consequent inundation of low lying lands. The Center for Climate Systems Research at Columbia University estimates that sea levels around New York City’s boroughs will increase by five inches by 2030, with some estimates predicting up to 12 ...


Climate Change As A Global Challenge, Nicholas A. Robinson Aug 2007

Climate Change As A Global Challenge, Nicholas A. Robinson

Pace Law Faculty Publications

No abstract provided.


Green Light For Green Infrastructure, Alexandra Dapolito Dunn May 2007

Green Light For Green Infrastructure, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


"Forever Wild": New York's Constitutional Mandates To Enhance The Forest Preserve, Nicholas A. Robinson Feb 2007

"Forever Wild": New York's Constitutional Mandates To Enhance The Forest Preserve, Nicholas A. Robinson

Pace Law Faculty Publications

Professor Robinson explores some of the evident, and also some of the less apparent legal implications that can be drawn from recognizing the implicit “land ethic” that resides within the “forever wild” conception of the Forest Preserve in New York’s Constitution. It is his thesis that the executive branch of State government, our Governors and most of our other State and local authorities, have observed the mandates of Article XIV most shallowly. They have ignored their stewardship duties to promote “forever wild forest lands.” Civic groups, and courts should not only concern themselves with the task of keeping government ...


Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher Jan 2007

Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

This article explores the relationship among zoning, transportation planning, and climate change. It discusses the relationship between land use densities and transportation choices, reviews the trend toward transit oriented development in higher density communities and transportation efficient development in lower density areas, presents several case studies where land use and transportation planning are beginning to intersect, and ends with a strategic approach for communities to consider.


Regulating Municipal Separate Storm Sewer Systems, Alexandra Dapolito Dunn Jan 2007

Regulating Municipal Separate Storm Sewer Systems, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


Katrina's Lament: Reconstructing Federalism, John R. Nolon Jan 2006

Katrina's Lament: Reconstructing Federalism, John R. Nolon

Pace Law Faculty Publications

The subject of stormwater management raises threshold questions about the federal system. Is the regulation of stormwater runoff and the environmental pollution it causes within the federal government's legal jurisdiction? Is it a matter reserved to the states under the Tenth Amendment? Or is it a joint responsibility and, if so, precisely how is federal and state authority shared? How does the delegation of power by states to local governments to regulate the use of privately owned land affect the federal-state division of power? What limits should there be on local control of land uses that cause “nonpoint source ...


The Intercivilizational Inequities Of Nuclear Power Weighed Against The Intergenerational Inequities Of Carbon Based Energy, Karl S. Coplan Jan 2006

The Intercivilizational Inequities Of Nuclear Power Weighed Against The Intergenerational Inequities Of Carbon Based Energy, Karl S. Coplan

Pace Law Faculty Publications

This essay explains that such encouragement of nuclear energy production as a “solution” to fossil fuel-induced climate change will create environmental problems equally as grave as those posed by a carbon-based energy economy. Both nuclear energy and fossil energy impose enormous environmental externalities that are not captured by the economics of energy production and distribution. While emissions trading schemes seek to harness market-based efficiencies to accomplish pre-determined reductions, they neither seek to nor succeed in capturing the environmental externalities of energy generation. By creating a set of incentives without capturing all of the externalities, these trading schemes will simply distort ...


Connecticut Nitrogen Credit Exchange Program, Ann Powers Apr 2005

Connecticut Nitrogen Credit Exchange Program, Ann Powers

Pace Law Faculty Publications

Long Island Sound is a cherished national natural resource, surrounded by some of the most densely populated land in the country. It has long provided sustenance, economic opportunities and comfort to the spirit for those who inhabit or visit its shores and waters. Like many of our Nation's water bodies, it drains a substantial and diverse watershed, and suffers a broad range of environmental insults. The problem of most concern is the severe shortage of oxygen in the deep waters of the western part of the Sound during summer months. This hypoxia is attributable to excess nitrogen that fuels ...


Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part Two: Statutory Preclusions On Epa Enforcement, Jeffrey G. Miller Jan 2005

Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part Two: Statutory Preclusions On Epa Enforcement, Jeffrey G. Miller

Pace Law Faculty Publications

This is the second half of a two-part Article focusing on preclusions against successive enforcement of the environmental statutes. Part One of the Article, printed in Volume 28 of this Journal, examined preclusions against citizen suits and argued that because of the theme-and-variations nature of the preclusion language, that language should be read in accordance with its plain meaning. Part Two, published in this issue, studies the restrictions on enforcement actions by the EPA and reaches the same conclusion.


Iucn As Catalyst For A Law Of The Biosphere: Acting Globally And Locally, Nicholas A. Robinson Jan 2005

Iucn As Catalyst For A Law Of The Biosphere: Acting Globally And Locally, Nicholas A. Robinson

Pace Law Faculty Publications

Unique among international organizations, the International Union for the Conservation of Nature and Natural Resources (IUCN) operates at the global, regional, and national levels to build governmental capacity to protect the environment. With a membership of over 75 sovereign states and 800 nongovernmental organizations, IUCN functions as an intergovernmental organization at the transnational level while operationally embodying the maxim "think globally, act locally." IUCN acts as a consortium of environmental scientists and professionals, including environmental lawyers who have proposed and secured adoption of significant environmental treaties such as the Convention on the International Trade in Endangered Species (CITES) and their ...


Doing Water Quality Credit Trading Right, Alexandra Dapolito Dunn Jan 2005

Doing Water Quality Credit Trading Right, Alexandra Dapolito Dunn

Pace Law Faculty Publications

No abstract provided.


Energy-Efficiency: The Best Option For A Secure, Clean, Healthy Future, Richard L. Ottinger Jan 2005

Energy-Efficiency: The Best Option For A Secure, Clean, Healthy Future, Richard L. Ottinger

Pace Law Faculty Publications

The risks of dependence on traditional fuels have never been greater or more obvious. Modern civilization and the world economy are facing imminent and clear threats of worldwide terrorism. The oil producing countries of the Middle East are increasingly unstable, confronting the world with potentially calamitous energy and economic disruptions. Domestically, our limited refining capacity creates shortages when demand is high and increases prices even when petroleum supplies are plentiful. Yet most of the world is in a state of denial, happy to bask in the illusory security of temporary Saudi oil production increases. Moreover, these new dangers sit on ...


The Supreme Court's Water Pollution Jurisprudence: Is The Court All Wet?, Jeffrey G. Miller Jan 2005

The Supreme Court's Water Pollution Jurisprudence: Is The Court All Wet?, Jeffrey G. Miller

Pace Law Faculty Publications

Part I of this article sets the stage with a brief survey of federal water pollution control, focusing on the CWA. Part II examines statistical conclusions and inferences from a cursory review of the Court's CWA opinions. Part III examines some of the opinions in a more qualitative manner to determine whether the statistical conclusions withstand analysis and whether the Court understands the CWA. The latter determination requires examining the nature and severity of the Court's misinterpretations of the statute. Part IV examines the Court's decisions with anti-environmental results to determine whether they reflect an anti-environmental bias ...


Is Voting Necessary? Organization Standing And Non-Voting Members Of Environmental Advocacy Organizations, Karl S. Coplan Jan 2005

Is Voting Necessary? Organization Standing And Non-Voting Members Of Environmental Advocacy Organizations, Karl S. Coplan

Pace Law Faculty Publications

This article will examine the law of standing, and specifically, the conflicting decisions concerning the importance of voting rights in order to establish organizational standing. The article concludes that voting rights should not be essential to the assertion of representational standing. Nevertheless, the article will also consider alternate forms of organization that will improve an organization's chances of establishing representational standing, while addressing the concerns that lead organizations to avoid a voting membership in the first place.


Of Zombie Permits And Greenwash Renewal Strategies: Ten Years Of New York's So-Called "Environmental Benefit Permitting Strategy", Karl S. Coplan Jan 2005

Of Zombie Permits And Greenwash Renewal Strategies: Ten Years Of New York's So-Called "Environmental Benefit Permitting Strategy", Karl S. Coplan

Pace Law Faculty Publications

This article analyzes the CWA's provisions ensuring public participation in the permitting process and the history of EPA regulations implementing the public participation requirements. The article then examines the EBPS authorizing legislation, DEC's Technical Guidance concerning its implementation of the EBPS, and some instances of DEC's actual practice implementing the EBPS, and compares these procedures with the public participation requirements contemplated by both the CWA and New York State's own clean water implementing legislation, Environmental Conservation Law Article 17. The article concludes that the procedures adopted by the DEC are inconsistent with both the CWA's ...


Development Agreements: Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, Shelby D. Green Jan 2004

Development Agreements: Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, Shelby D. Green

Pace Law Faculty Publications

This Article explores the new model of land use decision-making that is based upon bargaining with the landowner. The fact of a bargain raises the issue of whether such bargaining amounts to “contract zoning” based upon a bilateral contract between the municipality and the landowner, which is largely held to be illegal, or a related form of bargaining, not involving an exchange of promises in the context of a bilateral agreement--“conditional zoning.” Part II of this Article discusses the emergence of the development agreement, which involves a contract with a municipality and the developer under which the developer is ...


The Iucn Academy Of Environmental Law: Seeking Legal Underpinnings For Sustainable Development, Nicholas A. Robinson Jan 2004

The Iucn Academy Of Environmental Law: Seeking Legal Underpinnings For Sustainable Development, Nicholas A. Robinson

Pace Law Faculty Publications

An article describing a “work in progress” can provide only a sketch of the initial plans for the new IUCN Academy of Environmental Law. As the Academy establishes its administrative secretariat, builds its research program, and fashions its collaborative teaching undertakings, the details of this further work will become clear. Their analysis must await the events. Nonetheless, the precedents to date portend a promising future, as illustrated by the launch in Shanghai, and the Academy's initial research into the environmental sustainability of contemporary energy law.


Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part One: Statutory Bars In Citizen Suit Provisions, Jeffrey G. Miller Jan 2004

Theme And Variations In Statutory Preclusions Against Successive Environmental Enforcement Actions By Epa And Citizens, Part One: Statutory Bars In Citizen Suit Provisions, Jeffrey G. Miller

Pace Law Faculty Publications

This two-part Article examines the preclusion device, its legislative history, and the decisions interpreting it. Part One examines the device in citizen suit provisions. Part Two, to be published subsequently, will examine the device in EPA enforcement provisions. The two parts develop a unified interpretation of the device in both sets of enforcement provisions to resolve the tension between achieving compliance and protecting prosecutorial discretion. The Article concludes that Congress meant exactly what it wrote and enacted: the device solely precludes the successive enforcement it actually addresses. Several of the most common canons of statutory interpretation lead inexorably to this ...


The Law Of Words: Standing, Environment, And Other Contested Terms, David N. Cassuto Jan 2004

The Law Of Words: Standing, Environment, And Other Contested Terms, David N. Cassuto

Pace Law Faculty Publications

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there ...


Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan Jan 2003

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Pace Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element ...


Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon Jan 2003

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Pace Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an ...


The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers Jan 2003

The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers

Pace Law Faculty Publications

The article first summarizes CWA requirements relevant to TMDLs and outlines elements of an effective trading program. It then examines the program recently established by the State of Connecticut to allow trading of nitrogen credits among sewage treatment plants on Long Island Sound to achieve an established TMDL, and the CWA issues presented. Finally, it gives a brief comparison to the program being designed for the Chesapeake Bay, for which no TMDL has been established. Current brief descriptive summaries of several often cited programs are appended.


Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson Jan 2003

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Pace Law Faculty Publications

Environmental norms are observed because they are norms about how people respect each other and the natural systems that sustain human communities. Environmental norms are basic to human well-being. They arise out of the human condition, not unlike human rights laws. Environmental norms emerge from the fact that humans exist within ecosystems, and human society is embedded in the natural systems in which they have evolved; environmental norms are grounded in an objective reality, and scientists can measure the consequences of observing--or failing to observe--those norms. The provisions of environmental norms, therefore, exist not merely as pronouncements of governments, applied ...


The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach Jan 2003

The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach

Pace Law Faculty Publications

The most fundamental environmental problem is this: across our nation there are literally hundreds of millions of acres of important natural resource lands-- farms, forests, wetlands, reservoir watersheds, shore lands, endangered species habitat--lands that have relatively little commercial value in their present natural condition, but which would have much greater commercial value if their natural values were degraded or destroyed. Stated differently, private property often will yield a much greater profit to its owner if it is used in ways that will harm or obliterate important environmental assets and values. For this reason, private owners are understandably tempted to supplant ...


Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller Jan 2003

Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller

Pace Law Faculty Publications

Congress sought to attain full compliance with environmental statutes. It reasoned that multiple enforcers would provide more comprehensive and effective enforcement than one enforcer. Congress therefore empowered the Environmental Protection Agency (EPA), the states and private citizens as enforcers of the statutes. However, Congress worried that successive actions by multiple enforcers could bring disruption and conflict to enforcement litigation and remedies. It therefore included in the citizen suit provision of each statute a limited, three-element notice, delay, and bar preclusion device to manage successive citizens' enforcement against the violations already subject to government enforcement. The device generally bars citizens from ...


A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller Jan 2002

A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller

Pace 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 ...