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Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang Oct 2011

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 May 2011

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 Apr 2011

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 ...


Transforming The Means And Ends Of Natural Resource Management, Alejandro E. Camacho Jan 2011

Transforming The Means And Ends Of Natural Resource Management, Alejandro E. Camacho

Faculty Scholarship

This Article considers how prominent goals of natural resources law and the prevailing model of regulatory decision making combine to limit the capacity of natural resources governance to manage the effects of climate change. The Article explores the implications of continuing to rely on conventionally static and fragmented decision making, passive management, and historical preservation when global climatic shifts are widely expected to lead to rapid changes in ecological systems that are unforeseen, novel, and potentially detrimental to ecological diversity and function. This emphasis of natural resources management on stasis arises from the legal system’s discomfort with integrating and ...


Alternative Strategies For Managing Pharmaceutical And Personal Care Products In Water Resources, Gabriel Eckstein, George William Sherk Jan 2011

Alternative Strategies For Managing Pharmaceutical And Personal Care Products In Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent decades, concern has grown over the presence of pharmaceutical and personal care products (PPCPs) in water. This concern stems from the possibility that the presence of PPCPs in water supplies may pose a threat to both human and environmental health. Such threats may be both direct (e.g., exposure to endocrine disrupting compounds) and indirect (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment community has been especially concerned over PPCPs because of PPCPs ubiquitous nature and their ability to persist or only partially degrade in water and during wastewater treatment. Studies done over ...


Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency Fee Environmental Special Counsel Arrangement, Julie E. Steiner Jan 2011

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency Fee Environmental Special Counsel Arrangement, Julie E. Steiner

Faculty Scholarship

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with ...


Is Public Nuisance A Tort?, Thomas W. Merrill Jan 2011

Is Public Nuisance A Tort?, Thomas W. Merrill

Faculty Scholarship

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected – rights common to the general public – and the traditional understanding ...


Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill Jan 2011

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development – or, perhaps more accurately, lack of development – has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine. This article begins with a ...


The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz Jan 2011

The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz

Faculty Scholarship

With the permission of MIT Press, this document includes Chapters 11 and 12 from my 2011 book, The End of Energy: The Unmaking of America’s Environment, Security, and Independence. These two chapters discuss some of the history and merits of taxes, subsidies, and regulation (including cap and trade) as mechanisms to implement policies to curb greenhouse gases. In light of the renewed interest in and discussion of command and control regulations and carbon taxes, these chapters may be useful to readers who do not have the book. The bibliographic material relating to these chapters is contained in the book ...


Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw Jan 2011

Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw

Faculty Scholarship

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors – fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA’s authority to use compliance flexibility options under Section ...


New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress Unfinished Environmental Business, Reed D. Benson Jan 2011

New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress Unfinished Environmental Business, Reed D. Benson

Faculty Scholarship

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address todays water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant ...


Groundwater Policy In The Western United States, Denise D. Fort, Summer Mckean Jan 2011

Groundwater Policy In The Western United States, Denise D. Fort, Summer Mckean

Faculty Scholarship

Groundwater mining is inadequately addressed by state and federal policies in the United States. New Mexico's failure to manage groundwater aquifers has resulted in costly federal rescue projects. Better information and involvement of communities in groundwater policy would provide for more sustainable use of this resource.


A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang Jan 2011

A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang

Faculty Scholarship

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially ...


The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd Jan 2011

The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

Faculty Scholarship

Over the last several years, so-called carbon markets have
emerged around the world to facilitate trading in greenhouse gas
credits. This Article takes a close look at an unexpected and
unprecedented development in some of these markets—premium
“green” currencies have emerged and, in some cases, displaced
standard compliance currencies. Past experiences with other
environmental compliance markets, such as the sulfur dioxide and
wetlands mitigation markets, suggest the exact opposite should be
occurring. Indeed, buyers in such markets should only be interested in
buying compliance, not in the underlying environmental integrity of the
compliance unit. In some of the compliance ...


Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill Jan 2011

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, holds that ...


Public On Paper: The Failure Of Law To Protect Public Water Uses In The Western United States, Reed D. Benson Jan 2011

Public On Paper: The Failure Of Law To Protect Public Water Uses In The Western United States, Reed D. Benson

Faculty Scholarship

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective. This paper identifies the relevant legal principles and briefly explains ...


Oil And Water: Easements And The Environment, Mckay Cunningham Jan 2011

Oil And Water: Easements And The Environment, Mckay Cunningham

Faculty Scholarship

The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations.

Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law ...


Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor Jan 2011

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 ...


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

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 ...


Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller Jan 2011

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 Jan 2011

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 ...


China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival Jan 2011

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 Jan 2011

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 Jan 2011

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

Faculty Scholarship

No abstract provided.


Unnatural Resource Law: Situating Desalination In Coastal Resource And Water Law Doctrines, Michael Pappas Jan 2011

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 Jan 2011

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.


Climate Change, Food Security, And Agrobiodiversity: Toward A Just, Resilient, And Sustainable Food System, Carmen G. Gonzalez Jan 2011

Climate Change, Food Security, And Agrobiodiversity: Toward A Just, Resilient, And Sustainable Food System, Carmen G. Gonzalez

Faculty Scholarship

The global food system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring ...


The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez Jan 2011

The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez

Faculty Scholarship

In May 2010, the Universidad Interamericana in Mexico City hosted an international conference on The Global Politics of Food: Sustainability and Subordination. Sponsored by Latina and Latino Critical Legal Theory, Inc. and by Seattle University School of Law, the conference took place under the auspices of the South-North Exchange on Theory, Culture and Law (SNX), a yearly gathering of scholars in the Americas that seeks to foster transnational, cross-disciplinary and inter-cultural dialogue on current issues in law, theory and culture. Published in the University of Miami Inter-American Law Review, the conference papers examine the complex ways in which the global ...


A Prudent Approach To Climate Change, John B. Kirkwood Jan 2011

A Prudent Approach To Climate Change, John B. Kirkwood

Faculty Scholarship

Climate change poses large and difficult issues. The potential stakes are enormous, but there is vexing uncertainty about the likelihood of a catastrophe, our ability to mitigate it, the economic costs of taking action, and the desirability of doing so without the participation of the world’s rapidly developing economies. This article outlines a prudent response to these uncertainties. Given the state of the economy, it does not endorse high taxes or other severe curbs on carbon emissions. But unlike John Kunich’s article in the same volume, it does not suggest it would be appropriate to do nothing. Instead ...


Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey Jan 2011

Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey

Faculty Scholarship

No abstract provided.