Law Commons^™

Deep Sea Mining. A New Frontier For International Environmental Law, Antonino Troianiello

antonino troianiello

Abstract — This paper intends to explore the main issues of the recent Deep Sea mining rush, which indeed raises huge strategic, geopolitical and environmental concerns. It notes that most of these concerns are significantly linked to the obvious insufficiency of international regulation regarding seabed exploitation. It concludes by stressing the need to implement as soon as possible a global regulation dimension under the Economic Exclusive Zone’s regime.

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

State Succession To Territorial Obligations: The Case Of South Sudan And The 1959 Nile Waters Agreement, Mohamed S. Helal

Mohamed S. Helal

South Sudan’s independence has increased the number of Nile riparian States to eleven. Unfortunately, the Nile remains without an all-inclusive legal regime to regulate its use and to ensure that this indispensible natural resource is conserved for future generations. What, therefore, are the legal obligations of the newborn Republic of South Sudan regarding the Nile River? Specifically, this paper asks whether the Egyptian-Sudanese Nile Waters Agreement of 1959 has devolved onto South Sudan. This paper looks to the law of State succession to treaties to answer to this question. This is a field of international law that is beset with …

Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford

R. S. Radford

Penn Central Transportation Co. v. City of New York has been called the “polestar” of regulatory taking jurisprudence. Yet after 35 years, there is still no consensus on whether Penn Central sets forth a three-part balancing test, or a "one strike, you're out" checklist. This article presents an empirical analysis of how Penn Central is actually applied in the federal courts, finding distinct differences in the application of the test across jurisdictions.

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu

Shi-Ling Hsu

Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio.

This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …

The Importance Of Being Earnest: An Environmental Whistleblower’S Guide To Protection Under Sox § 806 And Dodd-Frank, John J. Tollefsen

John J. Tollefsen

This paper argues that the reason so few whistleblowers have won in court is because counsel failed to focus on SEC rule violations. It lays out a strategy for reversing that trend by identifying 13 SEC rules that could be cited by environmental whistleblowers under SOx §806 and its Dodd-Frank cousin.

Peak Coordinating Bodies And Invasive Alien Species: Is The Whole Worth More Than The Sum Of Its Parts?, Sophie Riley

Sophie Riley

The development of regimes to regulate invasive alien species (IAS) has historically progressed in a fragmented and ad hoc manner. To remedy this situation the United States of America and Great Britain have introduced peak coordination bodies to draw their regimes together. However, in Australia, the Senate has expressed concern at the consequences of establishing such bodies, concluding that they merely duplicate regulation at the various levels of government; and, additionally, have the potential to destabilize Australia’s constitutional balance of powers. Using a comparative methodology based on the ‘functionalist’ approach, this paper undertakes a comparative study of IAS regulation in …

Shockwave: Lender Liability Under Cercla After United States V. Fleet Factors Corporation, Nicholas M. Kublicki

Pepperdine Law Review

No abstract provided.

Climate Change Regulation And Litigation: A "Lost Decade" Of Controversy And Confrontation, Richard Faulk

Richard Faulk

Years ago, we published our first article regarding climate change. In it, we foresaw “stormy weather ahead,” but we attempted to begin a “constructive dialogue” about the issues raised by global climate change. Today, we can look back over a decade of controversy and confrontation regarding climate change in virtually all legal forums and institutions – and say, without hesitation, that the issue of global climate change has truly experienced a “lost decade.”

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

Rena I. Steinzor

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 Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith W. Rizzardi

William & Mary Environmental Law and Policy Review

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Michael Pappas

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

Protecting Coastal And Estuarine Resources- Confronting The Gulf Between The Promise And Product Of Environmental Regulation , Robert V. Percival

Robert Percival

No abstract provided.

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Robert Percival

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider An Inter-Sovereign Approach To Accommodate Federal And Tribal Interests In Water Resources, Jeffrey T. Matson

Jeffrey T Matson

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of …

Review Of "Wild Ideas" By David Rothenberg, David N. Cassuto

David N Cassuto

No abstract provided.

Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto

David N Cassuto

This Article examines the evolution of EPA's audit policy, explores the reasons for states' dissatisfaction with it, and then discusses whether the federal policy should have been issued as a rule under the Administrative Procedure Act (APA). Part I examines the evolution of the federal audit policy and then analyzes the strengths and weaknesses of the policy in its current form. Part II explores various types of evidentiary privilege and looks at the arguments for and against extending the privilege to audit reports. It then offers a similar analysis of the case for limited immunity, concluding that neither an expanded …

Air Pollution Control On The Southern Ute Indian Reservation, Sam Maynes

Sam W. Maynes

No abstract provided.

Cows, Congress, And Climate Change: Authority And Responsibility For Federal Agencies To End Grazing On Public Lands, Marya Torrez

Articles in Law Reviews & Journals

No abstract provided.

Get Smart To Go Green?, Alfred R. Light

Alfred Light

This article critiques the LEED Neighborhood Development rating system. As presently constituted, LEED-ND is unlikely to succeed in the way other LEED rating systems have. The rating system ignores important aspects of the quality of life in modern American suburbia such as security and privacy. If the proponents of smart growth and the new urbanism are to attract ordinary Americans to their quest for traditional neighborhoods, they must incorporate standards that recognize such missing dimensions. The aesthetics of a traditional neighborhood may not be completely congruent with factors which encourage environmental sustainability. LEED-ND ignores technological innovation, such as the implications …

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

Dc Circuit Says Epa's "Transport Rule" Violates Clean Air Act: Is "Cooperative Federalism On The Rise?", Richard Faulk

Richard Faulk

From a strictly legal perspective, it appears that the term “cooperative federalism” is emerging as a bedrock principle of air pollution policy under the Clean Air Act. Both the DC Circuit and the Fifth Circuit have now recognized that the policy is plainly required – and that this Congressional mandate trumps any less deferential policy that the EPA might wish to pursue. Although the concept cannot be extended further than the language of the Clean Air Act permits, it is a powerful tool for restraining the EPA’s authority.

It Takes A Global Sustainability Movement, John C. Dernbach

John C. Dernbach

No abstract provided.

Fairness In The Bay: Environmental Justice And Nutrient Trading, Rena I. Steinzor, Robert R.M. Verchick, Nicholas W. Vidargas, Yee Huang

Rena I. Steinzor

Maryland, Virginia, Pennsylvania and other states in the Chesapeake Bay region, with support from the Environmental Protection Agency, are working toward developing water quality trading programs intended to help meet federal pollution limits for the Bay. This white paper from the Center for Progressive Reform warns that even if a trading system succeeds in reducing overall pollution in the Bay, it might still have a dire effect on low-income and minority communities in the Bay region. If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a …

Agricultural Secrecy: Going Dark Down On The Farm: How Legalized Secrecy Gives Agribusiness A Federally Funded Free Ride, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This briefing paper examines the agricultural secrecy granted by section 1619 of the 2008 Farm Bill, its implications for transparency and oversight, and its impact on other federal agencies such as the U.S. Environmental Protection Agency (EPA). In an era of fiscal responsibility, tight budgets, and increasing pressure on the environment, the public has a right to know whether the U.S. Department of Agriculture (USDA) is making the best decisions about how to allocate public funds. Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Setting The Bar For "Injury" In Environmental Exposure Cases: How Low Can It Go?, John C. Cruden, Carla Burke, John Guttmann, Robert V. Percival

Robert Percival

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of "injury" in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included …

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

Robert Percival

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 …

Book Review: Environmental Protection And Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

This article reviews Environmental Protection and Human Rights (Cambridge University Press, New York 2011), a textbook co-authored authored by Donald K. Anton and Dinah L. Shelton. The book examines the growing recognition by scholars, activists, governments, and international and domestic tribunals of the linkages between environmental protection and human rights. Although intended for use as a law school textbook and accompanied by five online problem-oriented case studies, this comprehensive volume will also serve as a valuable reference for scholars and practitioners as well as an excellent survey for newcomers to the field.

The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation Of The Winters Doctrine, Sandi Zellmer, Justin Huber

Sandi Zellmer

The doctrine of implied federally reserved water rights, as established by Winters v. U.S., 207 U.S. 564 (1908), is important to the realization of federal land management goals. Recently, the doctrine’s ability to protect those goals when federal land is set aside for non-Indian purposes has been greatly limited by several poorly reasoned and result-oriented state court decisions. The primary factors that have led to these erosions of the Winters doctrine’s utility are: (1) the McCarran Amendment, 43 U.S.C. § 666, which allows states to force the U.S. to assert its federally reserved water rights claims in state court general …