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2006

Environmental Law

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Articles 31 - 60 of 90

Full-Text Articles in Law

The Eastern Lowland Gorilla: Saving The Victims Of Coltan, Amy Costanzo Aug 2006

The Eastern Lowland Gorilla: Saving The Victims Of Coltan, Amy Costanzo

ExpressO

This article addresses the demand for coltan and the effects of this demand on the Eastern Lowland Gorilla, a species of great ape residing largely in the Democratic Republic of the Congo, home to greatest coltan reserves in the world. The growing demand for coltan has had a devastating effect on this animal, which includes habitat destruction, gorillas being killed for bushmeat, and baby gorillas being orphaned or sold as pets.

It addresses the international agreements, including CITES and the Convention on Biological Diversity, that have already been passed in an effort to help save the Eastern Lowland Gorilla, among ...


British National Parks For North Americans: What We Can Learn From A More Crowded Nation Proud Of Its Countryside, Federico Cheever Aug 2006

British National Parks For North Americans: What We Can Learn From A More Crowded Nation Proud Of Its Countryside, Federico Cheever

ExpressO

England and Wales contain twelve national parks coverings more than 10 percent of their landscape. Although these parks are managed as national resources, the vast majority of the land within their borders is privately owned. Although they are managed to preserve their natural qualities, they contain farms, towns and roughly 300,000 people. They contain nothing North Americans would consider wilderness. Although recognized national assets, nationally funded, they are administered by boards made up largely of local representatives. Since passage of the National Parks and Access to Countryside Act of 1949, the British have managed to develop a national park ...


Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho Aug 2006

Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho

ExpressO

This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry.

In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though ...


It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar Aug 2006

It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar

Cornell Law Faculty Publications

This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing ...


Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass Aug 2006

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

ExpressO

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection ...


Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn Jul 2006

Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn

ExpressO

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went ...


Ceqa Analysis Of Development Displaced By Rejected Projects, George Lefcoe Jul 2006

Ceqa Analysis Of Development Displaced By Rejected Projects, George Lefcoe

University of Southern California Legal Studies Working Paper Series

In order to prevent the avoidable environmental degradation that often accompanies new development, the California Environmental Quality Act (CEQA) requires state and local decision makers to consider the potential environmental impacts of their discretionary approvals, even when they are voting entitlements for purely private development projects. California cities are burdened with notoriously underfunded transportation infrastructure and poor air quality, so CEQA findings can be marshaled to justify rejection of almost any proposed project. Because of California’s staggeringly high growth rates, projects rejected at one location are likely to find their way to another site within the same market area ...


Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows Jul 2006

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and ...


Bilateral Breakdown: U.S. – Canada Pollution Disputes, Noah D. Hall Jul 2006

Bilateral Breakdown: U.S. – Canada Pollution Disputes, Noah D. Hall

Noah D Hall

The United States and Canada have one of the strongest bilateral relationships in the world, and the history of cooperation and diplomacy on environmental matters has been a major part of their relationship. However, as some recent efforts to resolve U.S.- Canadian pollution disputes through diplomacy and international law have failed, environmental advocates have looked to domestic litigation in U.S. courts to vindicate their rights. Is this a welcome development for environmental protection or a troubling trend for bilateral diplomacy? This essay explores the recent developments with a historical perspective and provides some recommendations for balancing the competing ...


Looking Beyond Environmental Law's Mid-Life Crisis, Linda A. Malone Jul 2006

Looking Beyond Environmental Law's Mid-Life Crisis, Linda A. Malone

Faculty Publications

No abstract provided.


The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth Jul 2006

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

Boston College Law School Faculty Papers

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Statutes Of Repose And The Equal Protection Clause Of The 14th Amendment Of The U.S. Constitution, Garris G. Ference Jun 2006

Statutes Of Repose And The Equal Protection Clause Of The 14th Amendment Of The U.S. Constitution, Garris G. Ference

ExpressO

No abstract provided.


A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich Jun 2006

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.


When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler May 2006

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

ExpressO

This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even “crowd-out” state-level regulatory action by ...


Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp May 2006

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s ...


Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp May 2006

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This ...


Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall May 2006

Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall

Noah D Hall

This article presents a new model for environmental policy, called cooperative horizontal federalism. The cooperative horizontal federalism approach utilizes a constitutional mechanism for states to bind themselves to common substantive and procedural environmental protection standards, implemented individually with regional resources and enforcement. Here, the concept of cooperative horizontal federalism model is illustrated through the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact. Under this proposed compact, the eight Great Lakes states would cooperatively manage the world’s largest freshwater resource under common minimum standards, which are then incorporated into state law and implemented individually. This cooperative horizontal federalism ...


Dealing With Dumb And Dumber: The Continuing Mission Of Citizen Environmentalism, Zygmunt J.B. Plater May 2006

Dealing With Dumb And Dumber: The Continuing Mission Of Citizen Environmentalism, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Surveying the history of citizen environmentalism in the context of environmental law and politics over the past fifty years, this essay hypothesizes five different categories of corporate, governmental, political, and individual actions that deserve to be called “dumb,” and the societal lessons that have been or could be learned from each. If there is truth to the wistful aphorism that “we learn from our mistakes,” then our society is in position to learn a great deal about our world and how it works, which perhaps provides some ground for hope for the years to come. Environmentalism embodies fundamentally rational and ...


Gayanashogowa And Guardianship: Expanding And Clarifying The Federal-Tribal Trust Relationship, Kavitha Janardhan Apr 2006

Gayanashogowa And Guardianship: Expanding And Clarifying The Federal-Tribal Trust Relationship, Kavitha Janardhan

ExpressO

The Onondaga Nation of New York seeks to nullify a series of treaties executed by the State of New York, and thereby assert title to over 3100 square miles of land in Central New York State. The goal of the suit is to enforce an environmental restoration of culturally and historically significant aboriginal lands. In order to bring a claim against the State, the Nation must first compel the federal gov-ernment to act on its behalf. By emphasizing distinctive features of Iroquois self-government, the following Note suggests ways to expand the federal government’s trust responsibility to protect cultural inter-ests ...


The United States' Experience With Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives For Renewable Energy, Mona L. Hymel Apr 2006

The United States' Experience With Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives For Renewable Energy, Mona L. Hymel

ExpressO

Developing sustainable markets for renewable energy technologies presents complex challenges. Financial, institutional and informational obstacles impede advancement of these technologies. Tax incentives are often utilized to assist policy makers in dealing with these challenges. Because tax incentives and subsidies generally decrease governmental revenues, understanding their costs and benefits is critical in determining policy choices. For almost 90 years the United States has granted tax incentives, direct subsidies and other support to the energy industry in an effort to enhance U.S. energy supplies. Historically, those incentives targeted only the petroleum industry. Since the late 1970s, however, Congress has enacted incentives ...


The Law Of Sprawl: A Road Map, Michael Lewyn Apr 2006

The Law Of Sprawl: A Road Map, Michael Lewyn

ExpressO

In the fall of 2004, I taught a seminar on “The Law of Sprawl” at Southern Illinois University (SIU) School of Law. This essay seeks to guide would-be teachers of a course on sprawl by showing how I taught the course.

Specifically, the article asserts that a seminar on sprawl belongs in law school curricula as well as planning school curricula, because a wide variety of legal rules contribute to sprawl. The article then goes on to discuss those legal rules and how I addressed them in my course. For example, the article discusses land use regulations that encourage automobile-dependent ...


Recent Fourth Circuit Environmental Jurisprudence (The Fourth Circuit Summary), Brian M. Hendricks Apr 2006

Recent Fourth Circuit Environmental Jurisprudence (The Fourth Circuit Summary), Brian M. Hendricks

William & Mary Environmental Law and Policy Review

No abstract provided.


Congress' Pet: Why The Clean Air Act’S Favoritism Of California Is Unconstitutional Under The Equal Footing Doctrine , Valerie Jm Brader Mar 2006

Congress' Pet: Why The Clean Air Act’S Favoritism Of California Is Unconstitutional Under The Equal Footing Doctrine , Valerie Jm Brader

ExpressO

The Clean Air Act gives two regulatory powers to one state – California – that it forbids to all others: the power to regulate fuels, and the power to regulate motor vehicle construction. This paper makes the novel argument that by creating a differential in power between the states, these provisions violate the equal footing doctrine, and are therefore unconstitutional. In doing so, it is the first law review article to provide a complete history of the doctrine, a foundational principle that pre-dates the Constitution and remains the law of the land today. Though the doctrine has been relegated to a bit ...


Getting Into The Act: Enticing The Consumer To Become “Green” Through Tax Incentives, Roberta F. Mann, Mona L. Hymel Mar 2006

Getting Into The Act: Enticing The Consumer To Become “Green” Through Tax Incentives, Roberta F. Mann, Mona L. Hymel

ExpressO

Energy tax incentives have historically focused on the supply of energy sources. The U.S. government spends billions of dollars each year propping up the petroleum industry through tax incentives. For example, oil and gas incentives encourage production and enhanced oil recovery strategies. Furthermore, most of the tax incentives directed towards “environmentally friendly” technologies focus on creating new technology or increasing alternative fuel supplies. Meanwhile, federal policy makers have largely neglected the demand side of the energy equation. Properly designed tax incentives can effectively encourage energy consumers to conserve energy and use different energy sources. On the federal level, the ...


Localism's Ecology: Protecting And Restoring Habitat In The Suburban Nation, Jamison E. Colburn Mar 2006

Localism's Ecology: Protecting And Restoring Habitat In The Suburban Nation, Jamison E. Colburn

ExpressO

There is wide agreement among conservation activists and scientists alike that loss and alteration of habitat are the leading threats to biodiversity in America. Suburbs and exurbs, though, are only beginning to acknowledge that they are the problem in the struggle to stem the tide of “sprawl” and other economic processes producing ecosystem-wide habitat degradation today. A recent resurgence in academic and activist attention to local governments in America is reconsidering them as viable solutions to this problem. But most of this dialogue is being based upon a mistaken conception of local governance. Much of the legal scholarship on local ...


Regulatory Reform: The New Lochnerism?, David M. Driesen Mar 2006

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.


Five Views Of The Great Lakes And Why They Might Matter, A. Dan Tarlock Mar 2006

Five Views Of The Great Lakes And Why They Might Matter, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.


Western Growth And Sustainable Water Use: If There Are No "Natural Limits" Should We Worry About Water Supplies? (With S. Van De Wetering), A. Dan Tarlock Mar 2006

Western Growth And Sustainable Water Use: If There Are No "Natural Limits" Should We Worry About Water Supplies? (With S. Van De Wetering), A. Dan Tarlock

All Faculty Scholarship

No abstract provided.


Trends In Constitutional Environmental Law, James R. May Feb 2006

Trends In Constitutional Environmental Law, James R. May

James R. May

This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden ...