Law Commons^™

The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos

Faculty Scholarship

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …

Statehood And Sea-Level Rise: Scenarios And Options, Michael B. Gerrard

Faculty Scholarship

Sea-level rise may make some low-lying nations uninhabitable by the end of this century, if not before. If a country is under water, is it still a state? Does it still have a seat in the United Nations? What is the citizenship, if any, of its displaced people?

These questions take on increasing urgency as the world continues doing too little to avert catastrophic climate change. Many climate policy analyses agree the goal should be to keep global average temperatures within 1.5°C (2.7°F) above pre-industrial temperatures. That is the level that the small island states have demanded, as a matter …

Survey Of 2022 Cases Under State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts in New York issued 43 opinions in 2022 under the State Environmental Quality Review Act (SEQRA). Of these, the largest number — 27 — upheld agency decisions not to prepare an environmental impact statement (EIS), and eight overturned such decisions. Six cases upheld actions that had been the subject of an EIS; none overturned such actions. Two cases can’t be classified in this fashion.

These numbers are in line with the longstanding pattern that a project’s greatest litigation vulnerability under SEQRA is the failure to prepare an EIS; if an EIS has been prepared, very rarely will the …

New York Adopts Nation’S Strongest Environmental Justice Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

On March 3, New York Gov. Kathy Hochul signed the strongest environmental justice (EJ) law in the United States. While federal guidelines and the laws of some other states — notably California, Massachusetts, and Washington — require analysis, disclosure and consideration of EJ issues, only a New Jersey law adopted in 2020 imposed substantive limitations, as we discussed in our May 12, 2021, column. New York’s new law—building on enactments in 2019 and 2020 — is even more restrictive.

The new law — which we’ll call the EJL — provides that the Department of Environmental Conservation(DEC) “shall not issue an …

In California And Europe, A New Dawn For Corporate Climate Disclosure, Magali Delmas, Michael B. Gerrard, Eric Orts

Faculty Scholarship

The Securities and Exchange Commission (SEC) is expected to finalize a new rule this month to cover required corporate climate disclosures by public-reporting companies. But the bigger news is that California Gov. Gavin Newsom (D) has announced that he will soon sign into law two climate change disclosure bills passed by the state Legislature.

Ny, New Jersey Adopt Laws Requiring Flood Risk Disclosure For Homebuyers, Tenants, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In the wake of several incidents of unprecedented rainfall and disastrous flooding, both New York and New Jersey have adopted laws requiring the sellers of residential properties to tell buyers, and landlords to tell tenants, about known flood risks. The New Jersey law also requires disclosures in commercial transactions. A New York enactment also eliminates the commonlyused ability of sellers to avoid making property disclosures (not only about flood risk) by taking $500 off the purchase price.

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.

Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges And Opportunities, Korey Silverman-Roati, Romany M. Webb, Michael Gerrard

Faculty Scholarship

Carbon dioxide removal (“CDR”) will be needed, alongside deep emissions cuts, to achieve global temperature goals. According to a 2022 report by the Intergovernmental Panel on Climate Change, to keep global average temperatures within 1.5°C above preindustrial levels, carbon dioxide and other greenhouse gas emissions must reach net-zero by mid-century. Scientists have proposed a number of land- and ocean-based CDR techniques. This paper focuses on ocean fertilization, which involves adding iron or other nutrients to the ocean to stimulate the growth of phytoplankton that uptake carbon dioxide and convert it into organic carbon. The hope is that the organic carbon …

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 …

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.

The Baseline Bar, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Blood Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Trust Or Bust: Complications With Tribal Trust Obligations And Environmental Sovereignty, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Symposium: Environmental Accountability In An Age Of Consequences: Foreword, Julie E. Steiner

Faculty Scholarship

The five articles in this Symposium issue each take a different approach to addressing environmental accountability. There is unequivocal evidence that the climate system is warming, caused mainly by the measurable increase in anthropogenic greenhouse gas emissions. The Symposium authors include Denis Binder, Susan Stark, Julie E. Steiner, Chris Erchull, Laura Fisher, and Daniel DePasquale. These Authors challenge all to think broadly about utilization of different accountability mechanisms to ensure more efficient environmental outcomes.

A Tale Of Two Continents: Environmental Management-Based Regulation In The European Union And The United States, Rachel E. Deming

Faculty Scholarship

No abstract provided.

Environmental Regulation Going Retro: Learning Foresight From Hindsight, Jonathan B. Wiener, Daniel L. Ribeiro

Faculty Scholarship

No abstract provided.

Restating Environmental Law, Joel A. Mintz

Faculty Scholarship

Although environmental law springs from deep roots in centuries of common law, during the last forty years in particular it has grown into a well-established and important legal field in the United States with enormous practical consequences. Maturity, however, has also made it notoriously complex, and environmental law’s overlapping statutory schemes and inconsistent federal and state programs have sparked recurring conflict, controversy, and criticism.

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina S. Warren

Faculty Scholarship

It goes by many names: cannabis, marijuana, pot, chronic, grass, reefer, shwag, Mary Jane. Whatever the name, the trend is clear: the weed is legal but the herb ain’t green. Nearly half of all U.S. states have enacted—or have pending— legislation to legalize, decriminalize, or in some way permit the use and cultivation of marijuana. As a result, marijuana has become a significant topic of conversation in the U.S.— especially in the areas of social policy and criminal law. One conversation yet to reach fruition, however, is the industry’s projected impacts on energy demand and the climate. As the industry …

Global Environmental Law At A Crossroads: Introduction, Robert V. Percival, Jolene Lin, William Piermattei

Faculty Scholarship

No abstract provided.

A Step By Step Look At Uarg V. Epa: A New Layer Of Greenhouse Gas Regulation, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

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 …

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 …

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 …

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 …

Who’S Number One? The Most Significant Cases In Environmental Law, James Salzman, J.B. Ruhl

Faculty Scholarship

What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserve for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserve and members of the ABA's Section on Environment, Energy and Resources. We enjoyed a high level of participation, with over 440 responses from across the nation, from …

Earth Jurisprudence: The Moral Value Of Nature, Judith E. Koons

Faculty Scholarship

As planetary environmental crises advance toward us like an enormous oil spill, the call of Earth Jurisprudence has arisen, suggesting that a shift is necessary in the way that we think about law, governance, and nature. A predicate to rethinking law, however, is to reconsider the moral status of nature. This article posits that, to preserve a healthy planet for future generations of human beings - and for Earth itself - it is necessary to recognize Earth as the center of the moral community. As an ethical endeavor, the article turns the question of the moral status of nature through …