Law Commons^™

In The Name Of Energy Sovereignty, Guillermo J. Garcia Sanchez

Faculty Scholarship

Throughout history, the phrase "In the name of the King" justified actions that trumped the rights of citizens in order to safeguard the interests of the Crown. Today, in the name of energy sovereignty, states deploy the government apparatus to access oil and gas in other parts of the world, build pipelines on private lands, subsidize renewable energy, and nationalize their oil and power industries. States justify each of these actions by noting that they create a sense of energy independence, ensure security, or achieve other social and economic goals. Energy, however, cannot be trapped in one "realm." Its nature …

Do Not Put All Your Eggs In One Basket: Social Perspectives On Desalination And Water Recycling In Israel, Gretchen Sneegas, Lucas Seghezzo, Christian Brannstrom, Wendy Jepson, Gabriel Eckstein

Faculty Scholarship

Israel has set ambitious goals in terms of the widespread adoption of desalination and water recycling technologies. Policymakers in Israel consider these technologies as the key to improve urban water security but knowledge of stakeholder views on this policy approach is not well established. We deployed the Q-methodology, a qualitative–quantitative approach, to empirically determine social perspectives on desalination and water recycling across a wide range of stakeholders in the Israeli water sector. We identified the following four distinctive social perspectives: (1) desalination should be the option of last resort; (2) desalination is moving us to an infinite resource; (3) equating …

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

The Environmental, Social, Governance (Esg) Debate Emerges From The Soil Of Climate Denial, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

It has been almost six decades since Rachel Carson’s ominous warning of pending environmental disaster. During 2019 the United Nations requested urgent action from world leaders, given that “just over a decade is all that remains to stop irreversible damage from climate change.” With every passing year, damage resulting from destructive climate change causes increased pain, suffering, death and massive property loss. During 2020 and 2021 alone, severe weather events have included: destructive fires in California; record breaking freeze, power outage, and threat to the electrical grid in Texas; continuation of disruptive drought in U.S. Western states; and record-breaking high …

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado-Pérez

Faculty Scholarship

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …

Current Challenges In The Rio Grande/Río Bravo Basin: Old Disputes In A New Century, Regina M. Buono, Gabriel Eckstein

Faculty Scholarship

The Rio Grande River traverses 2000 kilometres of the international border between Mexico and the United States. The river and its tributaries are governed by a series of border treaties and institutions, as well as under the domestic laws of each nation. Often lauded for enabling innovative and collaborative governance, in recent years the complicated regime has come under pressure as domestic and international water governance institutions struggle under the strain of climate change, population growth, and other stressors on water supply and demand in the region. This chapter considers three of the major challenges currently facing the Rio Grande …

Natural Transplants, Vanessa Casado-Pérez, Yael R. Lifshitz

Faculty Scholarship

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions …

Lumpy Social Goods In Energy Decarbonization: Why We Need More Than Just Markets For The Clean Energy Transition, Daniel E. Walters

Faculty Scholarship

To avoid the worst consequences of global climate change, the United States must achieve daunting targets for decarbonizing its electric power sector on a very short timescale. Policy experts largely agree that achieving these goals will require massive investment in new infrastructure to facilitate the deep integration of renewable fuels into the electric grid, including a new national high-voltage electric transmission network and grid-scale electricity storage, such as batteries. However, spurring investment in these needed infrastructures has proven to be challenging, despite numerous attempts by regulators and policymakers to clear a path for market-driven investment. Unchecked, this problem threatens to …

Transboundary Aquifers, Raya Marina Stephan, Alice Aureli, Aurélien Dumont, Annukka Lipponen, Sarah Tiefenauer-Linardon, Christina Fraser, Alfonso Rivera, Shammy Puri, Stefano Burchi, Gabriel Eckstein, Christian Brethaut, Ziad Khayat, Karen Villholth, Lesha Witmer, Renee Martin-Nagle, Anita Milman, Francesco Sindico, James Dalton

Faculty Scholarship

This chapter gives an overview of the status of transboundary aquifers and the cooperation related to shared groundwater resources, highlighting the complexity of the assessment, analysis and management of these systems. It summarizes the main challenges regarding transboundary aquifers and the need for more comprehensive and integrated management, which would include technical, legal and organizational aspects as well as training and cooperation.

Groundwater Policy And Planning, Jenny Grönwall, Marianne Kjellén, Gabriel Eckstein, Kerstin Danert, Lesha Witmer, Rebecca Welling, Viviana Re, Katharina Davis, Lulu Zhang

Faculty Scholarship

Groundwater policy defines objectives, ambitions and priorities for managing groundwater resources, for the benefit of society. Planning translates policy into programmes of action. Both are often part of a wider water resource policy and planning framework, but the specific challenges pertaining to groundwater have traditionally received less attention than surface water.

The terms ‘policy,’ ‘strategy’ and ‘plans’ are used interchangeably in many countries and contexts.

Legal And Other Institutional Aspects Of Groundwater Governance, Jenny Grönwall, Marianne Kjellén, Alice Aureli, Stefano Burchi, Mohamed Bazza, Raya Marina Stephan, Gabriel Eckstein, Lesha Witmer, Margreet Zwarteveen, Aurélien Dumont, Danielle Gaillar-Picher, Rio Hada, Rebecca Welling, Maki Tsujimura

Faculty Scholarship

This chapter defines the linked concepts of groundwater governance and groundwater management, explaining how they differ from each other. Then, it describes the prevailing legal instruments for, and the institutional aspects of, groundwater management and governance.

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Environmental Enforceability, Seema Kakade

Faculty Scholarship

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so, it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance …

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

Adapting To A 4°C World, Clifford Villa

Faculty Scholarship

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

Don't Blame The Flint River, Clifford Villa

Faculty Scholarship

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail
discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article briefly examines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along …

New York Environmental Legislation In 2021, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

This annual survey of New York environmental legislation describes numerous new laws on single-use plastics, lead exposure, drinking water, fuel oil, climate resilience, solar energy, invasive species and other areas that were signed into law in 2021.

Taxing, Regulating, And Trading Carbon: An Introduction To The Symposium, Timothy Meyer

Faculty Scholarship

No abstract provided.

Genetically Engineered Food, Food Security, And Climate Change, Joanna K. Sax

Faculty Scholarship

Malnutrition is the leading cause of death and disease worldwide. Climate change is an existential crisis. We need to feed people and address the role of agriculture in climate change – at the same time. This is problematic, as agriculture inherently creates issues that contributes to climate change. Utilizing science, through genetically engineered crops, is one way to close the harm gap between food security and climate change. This essay addresses the controversial issue of genetically engineered crops with the complicated issues of food security and climate change by analyzing three main issues: (1) how the science of genetically engineered …

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

Is Fire Insurable?, Kenneth S. Klein

Faculty Scholarship

The focus of this chapter is on the extant data on the prevalence, causes, and depth of inadequate, unavailable, and/or unaffordable dwelling insurance for fire, and what might be done about it. Whether it is ‘bushfire’ in Australia or ‘wildfire’ in the United States, the frequency, intensity, and cost of fire is increasing, with no reason to expect the upward trend to dissipate any time soon. Most homeowners want to insure their homes for fire and think they both have done so and done so adequately. More often than not, they are wrong. And many are finding that insurance now …

Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

A 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.

A variety of CDR techniques, both terrestrial and ocean-based, have been …

West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews

Faculty Scholarship

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. Below, we present a transcript of that …

Panel: Climate Change And Climate Justice, Alice Kaswan, Michael B. Gerrard, Monica Esparza, J.B. Ruhl

Faculty Scholarship

This article is a transcript of a panel discussion from the 2022 Richmond Public Interest Law Review's Symposium on Environmental Justice.

Who Decides Where The Renewables Should Go?: A Response To Danielle Stokes’ Renewable Energy Federalism, Michael B. Gerrard

Faculty Scholarship

One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition — delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects.

I will begin by describing the magnitude of the problem — the amount …

Three New Federal Laws Aid New York’S Compliance With Climate Goals, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The New York Climate Leadership and Community Protection Act of 2019 (CLCPA) requires total statewide greenhouse gas emissions to be reduced 40% from 1990 levels in 2030 and 85% in 2050, with a goal (aided by offsets) of 100% by 2050. It also requires 70% of electricity demand in 2030 to be met by renewables, and 100% from “zero emissions” sources (meaning renewables plus nuclear) in 2040.

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New …

A Time For Triage, Michael B. Gerrard

Faculty Scholarship

The world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts.