Law Commons^™

Of Coal, Climate And Carp: Reconsidering The Common Law Of Interstate Nuisance, Robert V. Percival

Faculty Scholarship

This paper argues that the common law of interstate nuisance remains an essential tool despite the rise of the modern regulatory state. In the rare cases when existing regulatory authorities fail to address emerging environmental problems, federal common law can serve as a backstop. When federal regulatory authorities are capable of addressing transboundary problems, but fail to do so, common law actions based on the law of source states remain a viable means of redress for states suffering significant harm from such pollution. Reconnecting the law of interstate nuisance to its historical roots, the paper concludes that the common law …

The Case For Abolishing Centralized White House Regulatory Review, Rena I. Steinzor

Faculty Scholarship

A series of catastrophic regulatory failures have focused attention on theweakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and ameliorate …

Cercla In A Global Context, Robert V. Percival, Katherine H. Cooper, Matthew M. Gravens

Faculty Scholarship

The article first reviews the essential features of CERCLA and how they have evolved over time through legislative amendments and judicial interpretation. The article then compares CERCLA's approach to that embodied in the European Union's 2004 Directive on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage ("ELD:). It then reviews the laws adopted by various countries, including EU members, to respond to releases of hazardous substances. The article then discusses several case studies of how different countries handled incidents of environmental contamination. It concludes by summarizing the comparative law of environmental remediation and its implications for …

Evaluating Rules And How We Measure Their Effects, Rena I. Steinzor, Michael Patoka

Faculty Scholarship

The Center for Progres­sive Reform undertook an empirical study of the Office of Information of Regulatory Affairs, the White House office that reviews every significant regulation issue by Executive Branch agencies. The study assembled an unprecedented portrait of its behav­ior during the decade from October 16, 2001, when notices of meetings with outside parties were first available on the Internet, until June 1, 2011. OIRA conducted 6,194 separate reviews of regulatory submissions, holding 1,080 meetings that involved 5,759 ap­pearances by outside par­ticipants. Both the final report and the database we assembled are available on the CPR website, at pro­gressivereform.org.

OIRA …

The End Game Of Deregulation: Myopic Risk Management And The Next Catastrophe, Thomas O. Mcgarity, Rena I. Steinzor

Faculty Scholarship

On December 22, 2008, the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying …

Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang

Faculty Scholarship

Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny. For example, Maryland charges less than Pennsylvania and Virginia for some pollutant discharge permits, and the state does not assess permit fees for municipalities despite the resources required to administer those permits. The penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. Maryland law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in …

Opening The Industry Playbook: Myths And Truths In The Debate Over Bpa Regulation, Thomas Mcgarity, Rena I. Steinzor, Matthew Shudtz, Lena Pons

Faculty Scholarship

For the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health. Although scientists have targeted BPA as a public health concern, plastics industry lobbyists have attempted to thwart the efforts of federal, state, and local authorities to reduce exposure to BPA. This paper reviews the major arguments advanced by the plastics industry and debunks them as “myths” that public health officials must reject. The five topics covered include: the myth of scientific consensus on safety; the myth that only studies complying with “Good Laboratory Practices” guidelines are adequate for making regulatory decisions; …

Twelve Crucial Health, Safety, And Environmental Regulations: Will The Obama Administration Finish In Time?, Amy Sinden, Rena I. Steinzor, Matthew Shudtz, James Goodwin, Yee Huang, Lena Pons

Faculty Scholarship

When President Obama came to the White House and put his appointees in place, they faced a long to-do list. For the preceding eight years, the dominant view within the Executive Branch had been that health, safety, and environmental regulation was a nuisance to business, cutting into industry profits in service of objectives that had never been part of President George W. Bush’s agenda.

By the time Bush II left office on January 20, 2009, little had been done and a lot of important safeguards had been rolled back. Crucial rules mandated by Congress were delayed or derailed, and enforcement …

Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor

Faculty Scholarship

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is under pressure to adopt the British “safety case” system, which requires the preparation of a facility-specific plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. …

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Faculty Scholarship

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations. Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future. The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

When Business Conduct Turns Violent: Bringing Bp, Massey, And Other Scofflaws To Justice, Jane F. Barrett

Faculty Scholarship

In April 2010, forty-seven people died violently as a result of explosions at an oil refinery, in a coal mine and on an offshore drilling rig. The BP Deepwater Horizon catastrophe, the Massey Mine coal mine disaster and the Tesoro Corporation oil refinery explosion raise questions about the corporate and individual criminal culpability of those responsible for these deaths. Too often cases involving worker deaths are not prosecuted at all or result in simply large fines against a corporate entity. This Article argues that the Department of Justice needs to more aggressively investigate and prosecute not only organizations but, more …

Unnatural Resource Law: Situating Desalination In Coastal Resource And Water Law Doctrines, Michael Pappas

Faculty Scholarship

This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.

This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of …

Environmental Law Goes Global: Taking Back Eden: Eight Environmental Cases That Changed The World, By Oliver A. Houck, Robert V. Percival

Faculty Scholarship

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival

Faculty Scholarship

This article argues that China may be on the verge of a “Green Leap Forward” that could make it a global environmental leader. This article argues that two principal forces have contributed to this development. First, Chinese officials now realize that a global shift away from fossil fuels will create enormous business opportunities on a global scale. Chinese companies are now making enormous strides in the development of green technology, such as solar power, wind energy, and electric cars, with the active assistance of the Chinese government. Second, realizing that climate change severely threatens China, and stung by the criticism …

Global Law And The Environment, Robert V. Percival

Faculty Scholarship

This article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …

Too Big To Obey: Why Bp Should Be Debarred, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Liability For Environmental Harm And Emerging Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental law and policy are undergoing rapid change at the global, national, and even local levels. The nations of the world continue to struggle to develop an effective global response to climate change. Transboundary pollution and resource management problems command regional attention even as nations work to upgrade their own environmental standards and their energy, transportation, and land use policies. Surprising environmental initiatives are emerging even from state and local governments.

In my previous work I have argued that globalization is affecting law and legal systems throughout the world in profound new ways. See Robert V. Percival, The Globalization of …

From The Greenhouse To The Poorhouse: Carbon Emissions Control And The Rules Of Legislative Joinder, David A. Super

Faculty Scholarship

Pending legislation to address carbon emissions would include large subsidies for existing emitters. These subsidies make little sense economically or politically. Worse, they divert resources needed to address two crucial issues that the proposed legislation largely ignores: the impact of raising carbon costs on low-income people and the massive structural federal deficit. A carbon tax or cap-and-trade system would increase costs substantially not only for transportation but for food and housing. With poverty rising even before the current economic downturn, these price increases’ consequences could be dire. The structural deficit will require deflationary tax increases or spending cuts. Combining carbon …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Alyson Flournoy, William Andreen, Rebecca Bratspies, Holly Doremus, Victor Flatt, Robert Glicksman, Joel Mintz, Daniel Rohlf, Amy Sinden, Rena I. Steinzor, Joseph Tomain, Sandra Zellmer, James Goodwin

Faculty Scholarship

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable.

BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

Corrective Lenses For Iris: Additional Reforms To Improve Epa's Integrated Risk Information System, Rena I. Steinzor, Wendy E. Wagner, Lena Pons, Matthew Shudtz

Faculty Scholarship

The Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) is the most important toxicological database in the world. Not only is it the single most comprehensive database of human health information about toxic substances, it also serves as a gateway to regulation, as well as to a range of public and private sector efforts to protect against toxic substances. IRIS “profiles” of individual substances include a number of scientific assessments of the substance’s toxicity to humans by various means of exposure – by inhalation, contact with the skin, and so on. Federal regulators rely on the assessments to do …

Strategies For Promoting Green Energy Innovation, Deployment, & Technology Transfer, Robert V. Percival

Faculty Scholarship

This paper surveys various strategies for promoting the development and deployment of green energy technologies.

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Workers At Risk: Regulatory Dysfunction At Osha, Thomas Mcgarity, Rena I. Steinzor, Sidney A. Shapiro, Matthew Shudtz

Faculty Scholarship

The Occupational Safety and Health Administration was born with a heavy load to bear – the obligation of ensuring that every worker in America has a safe and healthful workplace for his or her entire working life. In its early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

La Responsabilidad Por Daño Ambiental Global Y La Evolución En Las Relaciones Entre El Derecho Público Y Privado [Liability For Global Environmental Harm And The Evolving Relationship Between Public And Private Law], Robert V. Percival

Faculty Scholarship

No abstract provided.

The Globalization Of Environmental Law, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law”-law that is neither …

Regulatory Dysfunction: How Insufficient Resources, Outdated Laws, And Political Interference Cripple The 'Protector Agencies', Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect …

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Faculty Scholarship

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers …