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Full-Text Articles in Law

Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark P. Nevitt, Robert V. Percival Dec 2017

Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark P. Nevitt, Robert V. Percival

Mark P Nevitt

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions.  Yet they differ dramatically in their governing legal regimes.  For the past sixty years the Antarctic Treaty System (ATS), a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work.  Now climate change is challenging this model.  It is transforming the geography of both polar regions, breaking away massive ice sheets ...


United States V. Gila Valley Irrigation District, Ryan L. Hickey Oct 2017

United States V. Gila Valley Irrigation District, Ryan L. Hickey

Public Land and Resources Law Review

Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.


Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine Of Unconstitutional Conditions, Brian T. Hodges Aug 2017

Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine Of Unconstitutional Conditions, Brian T. Hodges

Seattle Journal of Environmental Law

Washington’s cities and counties are increasingly demanding that owners of residential shoreline properties dedicate large, predetermined critical area buffers as a mandatory condition of any new development. Such demands, when imposed without regard to the specifics of the land use proposal, would appear to violate the essential nexus and rough proportionality tests established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Early decisions from Washington courts faithfully applied these tests, invalidating open space and buffer dedications. But in a ...


Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter Jul 2017

Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter

Congressional and Other Testimony

More information available: http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=106263


Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter Jul 2017

Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter

Amanda Leiter


Environmental Control: Guide Or Roadblock To Land Development - A Symposium - Introduction, Donald W. Dowd Jun 2017

Environmental Control: Guide Or Roadblock To Land Development - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


We Are Not Alone: How Extraterritorial Application Of The Endangered Species Act Can Preserve International Endangered Species And Habitats, Katherine M. Macrae May 2017

We Are Not Alone: How Extraterritorial Application Of The Endangered Species Act Can Preserve International Endangered Species And Habitats, Katherine M. Macrae

Ocean and Coastal Law Journal

The Great Barrier Reef is the world’s largest coral reef ecosystem and is currently in danger of irreparable destruction due to natural and human-made environmental disturbance. This paper focuses on a case, Center for Biological Diversity v. Export-Import Bank, concerning the extraterritoriality application of the Endangered Species Act to a Federal agency’s funding of liquefied natural gas projects in Australia requiring, in part, the dredging of portions of the Great Barrier Reef. As the health of UNESCO World Heritage Sites and other environmentally protected and culturally important geography is jeopardized, United States’ government activity in foreign jurisdictions raises ...


Senator Edmund Muskie's Enduring Legacy In The Courts, Richard J. Lazarus Jan 2017

Senator Edmund Muskie's Enduring Legacy In The Courts, Richard J. Lazarus

Maine Law Review

More than any other legislator in the nation’s history, Senator Ed Muskie is environmental law’s champion. Over forty years ago, Muskie helped secure passage of an extraordinary series of ambitious and demanding air and water pollution control laws that sought no less than to redefine the relationship of humankind here in the United States to our natural environment. The upshot has been the nation’s enjoyment, for more than four decades, of enormous economic growth without the kind of accompanying environmental destruction witnessed during the same time period in the nations lacking such controls. While President Richard Nixon ...


Edmund S. Muskie: A Man With A Vision, Leon G. Billings Jan 2017

Edmund S. Muskie: A Man With A Vision, Leon G. Billings

Maine Law Review

At Senator Muskie’s funeral I noted that I had been on his staff for fifteen years, but had worked for him for thirty. In a way I am still working for him, or at lease, because of him. This fall my colleague and minority counsel, Tom Jorling, and I are team-teaching a course entitled “Origins of Environmental Law” at Columbia University. Preparing for that course, reading old memos to the Senator, re-reading his floor statements, interrogatories, and speeches and going back to the transcripts of Subcommittee discussion has been revealing, inspiring, and refreshing. I am not sure that, at ...


The Ends And Means Of Pollution Control: Toward A Positive Theory Of Environmental Law, David M. Driesen Jan 2017

The Ends And Means Of Pollution Control: Toward A Positive Theory Of Environmental Law, David M. Driesen

Utah Law Review

An understanding of environmental law’s means and ends makes it possible to understand the field as a whole, both in terms of the overall structure of statutes and relationships between means and ends. This analysis of means and ends yields a host of valuable insights and significant research questions. It also provides an important foundation for evaluating proposed regulatory reforms. A reasonably complete theory, at a minimum, should also explain key features of the enforcement regime and the allocation of authority among governments. The theory of means and ends articulated here constitutes a very substantial step forward in constructing ...


Case Note: Jacobs V Save Beeliar Wetlands (Inc), Phillip Paul Dec 2016

Case Note: Jacobs V Save Beeliar Wetlands (Inc), Phillip Paul

The University of Notre Dame Australia Law Review

No abstract provided.


National Wildlife Federation V. National Marine Fisheries Service, Jacob R. Schwaller Oct 2016

National Wildlife Federation V. National Marine Fisheries Service, Jacob R. Schwaller

Public Land and Resources Law Review

The tide in the legal battle surrounding anadromous fish protections in the Columbia River watershed most recently swung in favor of the fish. In the latest iteration of National Wildlife Federation v. National Marine Fisheries Service, the Court found in a lengthy opinion that NOAA fisheries acted arbitrarily and capriciously when it issued its 2014 BiOp concluding that the FCRPS did not violate the ESA. The Court also ruled that the Corps violated NEPA by failing to prepare an environmental impact statement in connection with their records of decision implementing reasonable and prudent alternatives in the BiOp. This decision could ...


Kain V. Department Of Environmental Protection, Sarah M. Danno Aug 2016

Kain V. Department Of Environmental Protection, Sarah M. Danno

Public Land and Resources Law Review

Global climate change and its chronic frustrations generated passage of the Massachusetts Global Warming Solutions Act. The Massachusetts Legislature imposed time-bound implementation mandates on the Massachusetts Department of Environmental Protection with Massachusetts residents acting as compliance watchdogs. In Kain, the Supreme Judicial Court of Massachusetts interpreted the Act in favor of environmental integrity and strict agency compliance standards.


Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch Aug 2016

Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch

Jill Fisch

No abstract provided.


Environmental Protection As A Learning Experience, Daniel A. Farber Aug 2016

Environmental Protection As A Learning Experience, Daniel A. Farber

Daniel A Farber

No abstract provided.


Environmental Justice And Community-Based Reparations, Catherine Millas Kaiman Jul 2016

Environmental Justice And Community-Based Reparations, Catherine Millas Kaiman

Seattle University Law Review

This Article seeks to illuminate the lack of adequate legal remedies that are available for low-income, predominantly minority communities that have suffered historic environmental injustices. The Article not only discusses the lack of adequate legal remedies, but also proposes the use of local, state, and federal reparations programs for communities that have previously suffered environmental injustices; are still living with the effects of environmental injustices, by way of disease, air, soil, and water pollution; or are suffering current and ongoing environmental injustices. As has been recently illustrated by Michigan’s state action of providing lead-contaminated water for over a year ...


Climate Change Law And Policy In The European Union, Sanja Bogojevic May 2016

Climate Change Law And Policy In The European Union, Sanja Bogojevic

Sanja Bogojević

No abstract provided.


Lodging The Sustainable Development Goals In The International Trade Regime: From Trade Rhetoric To Trade Plethoric, Nasser A. Alreshaid May 2016

Lodging The Sustainable Development Goals In The International Trade Regime: From Trade Rhetoric To Trade Plethoric, Nasser A. Alreshaid

Nasser A Alreshaid

While the international community is stimulated by the new sustainable development goals’ impetus, the global trade regime lives through its 40’s mid-life crisis and anticipates what it does not know. Views of the multilateral trading system being stalled by a proliferation of other preferential trade agreements, signal a deep inquiry into this policy trend. What this paper intends to highlight though, is that if lessons are drawn from the new sustainable development goals, these global trade challenges could be mere air turbulence. By introducing the needs of states and their constituents through these goals, an inclusive and more representative ...


In Search Of Accountability: The Legislative Re-Invention Of Environmental Law And Policy In Indiana, Robert F. Blomquist May 2016

In Search Of Accountability: The Legislative Re-Invention Of Environmental Law And Policy In Indiana, Robert F. Blomquist

Robert F. Blomquist

No abstract provided.


The Widening Scope Of Directors' Duties: The Increasing Impact Of Corporate Social And Environmental Responsibility, Thomas Clarke Mar 2016

The Widening Scope Of Directors' Duties: The Increasing Impact Of Corporate Social And Environmental Responsibility, Thomas Clarke

Seattle University Law Review

This Article concerns the widening scope of directors’ duties under the increasing impact of the pressures for corporate social and environmental responsibility. Narrow interpretations of directors’ duties that focus simply on the commercial success of the business and relegate other considerations to externalities are not tenable in the present context. The dawning realization of the global consequences of imminent climate change provides a series of inescapable challenges for business enterprises.


A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada Jan 2016

A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada

Brooklyn Journal of International Law

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with ...


The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey Jan 2016

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey

Osgoode Hall Law Journal

This short reply clarifies and defends the argument presented in “The Environmental Emergency and the Legality of Discretion in Environmental Law.” It responds to the arguments that were made, and that could have been made, in Pardy’s critique “An Unbearable Licence.” The reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.


Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik Jan 2016

Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik

Osgoode Hall Law Journal

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples ...


A Shift In The Wind: Siting More Wind Power Projects Along Texas’ 367-Mile Coast Of Gulf Winds, And Mitigating Potential Risk To Migratory Bird Populations, Oscar Burkholder Jan 2016

A Shift In The Wind: Siting More Wind Power Projects Along Texas’ 367-Mile Coast Of Gulf Winds, And Mitigating Potential Risk To Migratory Bird Populations, Oscar Burkholder

Seattle Journal of Environmental Law

No abstract provided.


Torquing The Levers Of International Power, Steven Ferrey Jan 2016

Torquing The Levers Of International Power, Steven Ferrey

Washington University Global Studies Law Review

The world is now at its climate’s “tipping point” at a precipice to redress global warming; after which our ability to halt a climate temperature rise below 2 degrees Centigrade (3.4 degrees Fahrenheit) is deemed unreachable. How to arrest the fast-accelerating accumulation of long-term carbon in the atmosphere is the legal and environmental challenge of the 21st century. It involves intelligent implementation of legal mechanisms, not technical fixes. Governments must quickly torque the levers of international power, but U.S. courts are finding some of these levers unconstitutional.

This Article identifies, compares, contrasts, and torques the levers of ...


Public Laws And Private Lawmakers, Kimberly N. Brown Jan 2016

Public Laws And Private Lawmakers, Kimberly N. Brown

Washington University Law Review

The Obama Administration’s “Clean Power Plan” for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated to them. The nondelegation doctrine applies to delegations by Congress—not to agencies’ subdelegations of legislative power to private parties. The other doctrinal lens for reviewing rulemaking by entities ...


Disaster Law And Climate Change, Robert Verchick Dec 2015

Disaster Law And Climate Change, Robert Verchick

Robert R.M. Verchick

This chapter describes the international legal regimes that address natural disaster and that address climate change. It also identifies a gap in program coverage and examines how the global community is wrestling with the issue. Consider a serious disaster risk that is amplified by climate change. What legal program should kick in? Should we call on policies intended for disaster-risk reduction (DRR) or for climate-change adaptation (CCA)? Or do we need something new and distinct? The border between DRR and CAA is, as we will see, contested. Where one draws the line depends on science, economic interests, and social values ...


Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren Prum Dec 2015

Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren Prum

Darren A. Prum

In a report from the United Nations Environmental Program that addressed climate change, the authors point out that the built environment in both emerging and developed countries accounts for more than forty percent of the global energy usage while also emitting at least one third of the world’s greenhouse gasses. They further assert that the built environment offers an unsurpassed opportunity to supply cost effective, lasting, and meaningful reductions in greenhouse gas emissions. In response to such a call to action, many state and local governments turned to a variety of policies to ensure that the real estate developments ...


De La Proactividad A La Prevención En Materia Ambiental, Iván Vargas-Chaves Dec 2015

De La Proactividad A La Prevención En Materia Ambiental, Iván Vargas-Chaves

Iván Vargas-Chaves

Este capítulo explica el concepto de la proactividad en materia ambiental y en el ámbito de la salud pública, a partir del caso de estudio del uso del Glifosato en las campañas de aspersión contra cultivos de uso ilícito en Colombia. Nuestra propuesta se sustenta en una distinción entre acción proactiva-positiva y acción proactiva-negativa, siendo la primera la que permite entender que el ser humano es resiliente por naturaleza, y la segunda la que lleva al Estado a no intervenir ante situaciones de vulnerabilidad evidenciable, bajo un supuesto de ponderación errónea de derechos afectados. Al estar despejado este escenario, este ...


General Deterrence And Corporate Environmental Behavior, Dorothy Thornton, Neil Gunningham, Robert Kagan Dec 2015

General Deterrence And Corporate Environmental Behavior, Dorothy Thornton, Neil Gunningham, Robert Kagan

Robert Kagan

This research addresses the assumption that“general deterrence” is an important key to enhanced compliance with regulatory laws. Through a survey of 233 firms in several industries in the United States, we sought to answer the following questions: (1) When severe legal penalties are imposed against a violator of environmental laws, do other companies in the same industry actually learn about such“signal cases”? (2) Does knowing about“signal cases” change firms’ compliance-related behavior? It was found that only 42 percent of respondents could identify the“signal case ...