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Full-Text Articles in Law
Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules
Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules
Faculty Publications
This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.
This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Faculty Publications
This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …
Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa
Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa
Faculty Publications
This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of …
Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler
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 …