Law Commons^™

Climate Change Under Nepa: Avoiding Cursory Consideration Of Greenhouse Gases, Amy L. Stein

Amy L. Stein

Neither the National Environmental Policy Act (“NEPA”) nor its implementing regulations require consideration of climate change in NEPA documentation. Yet an ever-growing body of NEPA case law related to climate change is making it increasingly difficult for a federal agency to avoid discussing the impacts of those emissions under NEPA in its Environmental Impact Statements (“EISs”). Although consideration of climate change in NEPA documents sounds right in theory, within the current legal framework, the NEPA documents provide only lip service to the goals of NEPA without any meaningful consideration of climate change. An empirical evaluation of two years of selected …

State Fish Stocking Programs At Risk: Takings Under The Endangered Species Act, Amy L. Stein

Amy L. Stein

Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a …

Restoration Rx: An Evaluation And Prescription, Alyson C. Flournoy

Alyson Flournoy

In this introductory article, I explore what ethics, science, economics, and law suggest about the value of restoration. These themes -- the questions and challenges posed by ethics, science, economics, and law -- resonate throughout the Articles in this Symposium. Drawing on the presentations given at the Symposium and the literature on environmental restoration, this article reviews some of the major questions that science and ethics pose for restoration, as well as the challenges posed by the economic and legal contexts within which environmental restoration occurs. After a brief comment on the definition of restoration, this article addresses the challenges …

Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy

Alyson Flournoy

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

Alyson Flournoy

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes. This effort …

Harnessing The Power Of Information To Protect Our Public Natural Resource Legacy, Alyson Flournoy, Heather Halter, Christina Storz

Alyson Flournoy

In practice, our laws have proven unequal to the lofty objectives of preserving a legacy of public natural resources for our children or achieving sustainable use of these resources. There are many factors that contribute to this shortfall, but inherent inadequacies in the design of these statutes cannot be overlooked as an important determinant. Despite the statutes' broadly stated aspirations toward sustainability and protection of the interests of future generations, only a handful of these statutes include strong and enforceable mandates for sustainable resource use. Many of these statutes accord natural resource-management agencies broad discretion to balance and permit a …

Building An Environmental Ethic From The Ground Up, Alyson Flournoy

Alyson Flournoy

Over the last twenty years there has been a remarkable theoretical flourishing in the field of environmental philosophy, with the development of biocentric ethics, animal rights theories, deep ecology, ecofeminism, modified utilitarianism, moral pluralism and theories drawing on numerous religious and cultural traditions. These theories explore the intellectual and moral causes for the environmentally destructive practices of the dominant western industrial and economic culture, and propose alternatives that might avoid these consequences. This symposium raises a worthy question: to what extent have these theories had practical impact on environmental law and policy. I come to this question as a lawyer …

In Search Of An Environmental Ethic, Alyson C. Flournoy

Alyson Flournoy

A preliminary analysis of several core environmental provisions suggests that the mix of values embedded in our environmental statutes is substantially similar to the values found in the common law and non-environmental statutes. That is, the environmental statutes tend to reflect human concerns that predate any dawning of environmental awareness -- with only a modest introduction of new values or reasons for caring that are uniquely attributable to concern for the human relationship to the environment. If this is true, it seems to undermine a tenet of the public debate. It may call into question the very naming of these …

The Environmental Commerce Clause, Christine A. Klein

Christine A. Klein

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect. This study …

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Joel M Pratt

Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …

Global Environmental Constitutionalism, Erin Daly, James May

Erin Daly

No abstract provided.

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Evaluation Of Directive 2014/52/Eu And Spanish Law 21/2013 Along With The Need To Include The Reverse Environmental Assessment Analysis For The Adaptation Of Projects, Plans, And Programs To The Effects Of Climate Change, Teresa -. Parejo

Teresa - Parejo

The need for action on climate change is recognized around the world, and the European Union is not an exception. For that reason, the new Directive 2014/52/EU stresses the requirement to strengthen the quality of the Environmental Impact Assessment procedure by including the so-called “Reverse Environmental Impact Assessment”, which adds to the traditional tool a new and complementary vision that takes into account the effects of the changing climate into certain public and private projects.

Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord

Brittany DeBord

The United States seeks to achieve energy security and self-sufficiency by acquiring energy from Canadian tar sands and promoting a domestic tar sands industry. However, support for this industry is inconsistent with the greenhouse gas reduction policies of the Energy Independence and Security Act and the North American Agreement on Environmental Cooperation, since tar oil extraction creates three times more carbon emissions than conventional oil extraction. Legislation limiting lifecycle greenhouse gas emissions has already been implemented through the Renewable Fuel Standard Program in response to concerns that plant-based fuel production leads to greater carbon emissions than intended. Since the lifecycle …

Constitution And Pollution: Federalism At Work, David R. Hodas

David R. Hodas

No abstract provided.

Looking To The Practices Of Transnational Corporations To Protect The Global Environment: A New Theory Of Custom In International Environmental Law, Matthew Thurmer

Matthew A Thurmer Mr.

To a large extent, international environmental law has been unsuccessful. As a result, new and creative thinking is needed to protect the global environment. This paper, in particular, considers an approach to customary international law that is based on the practices of transnational corporations (TNCs) rather than the practices of states. Of course, many TNCs are harming the Earth. Thus, the state must regulate these multinational companies to establish practices that are environmentally sound. If enough states pass and enforce such laws, then at some point a rule of custom will arise that can protect the global environment.

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

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

Robert Percival

No abstract provided.

Testimony Before The Committee On Energy And Commerce, Subcommittee On Environment And Economics, U.S. House Of Representatives, Hearing On Constitutional Considerations: States Vs. Federal Environmental Policy Implementation July 11, 2014, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

Testimony Before The Committee On Science, Space, And Technology, Subcommittee On Oversight And Environment, U.S. House Of Representatives Hearing On Status Of Reforms To Epa's Integrated Risk Information System, July 16, 2014, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

Presidential Power To Address Climate Change In An Era Of Legislative Gridlock, Robert V. Percival

Robert Percival

No abstract provided.

Winning Safer Workplaces: A Manual For State And Local Policy Reform, Rena I. Steinzor

Rena I. Steinzor

We set out to compile a list of rules and policies that could be implemented by state and local governments to provide better protections for U.S. workers. This manual includes more than two dozen such ideas, organized into thematic chapters: Chapter 1: Empowering Workers, with proposals designed to strengthen workers' individual and collective power to demand changes in their workplaces; Chapter 2: Making Sure Crime Doesn't Pay, with ideas for strong enforcement of workplace health and safety rules that will punish bad actors and deter similar behavior;Chapter 3: Strengthening Institutions, with recommendations intended to bolster government agencies' efforts to protect …

Consequences For Cleanup: Epa Gets Serious About Weak Watershed Improvement Plans, Rena I. Steinzor, Anne Havemann

Rena I. Steinzor

In a landmark series of reports issued on June 26, 2014, the Environmental Protection Agency (EPA) put the seven jurisdictions that pollute the Chesapeake Bay on notice that their plans for reducing nitrogen, phosphorous, and sediment fall short of where they must be to make cleanup by 2025 a reality. By EPA’s reckoning, Pennsylvania and Delaware were furthest off the mark, but Maryland, New York, Virginia, and West Virginia face EPA action if they fail to substantially improve their plans. Of the seven jurisdictions, only Washington, D.C. escaped serious criticism.

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The …

Sara's State Procedural Reform: Reading Cts V. Waldburger Through Canons Of Statutory Interpretation, Alfred Light

Alfred Light

This Article takes Justice Antonin Scalia and Professor Bryan A. Garner’s 2012 treatise Reading Law seriously by showing how the Supreme Court applied (or failed to apply) Reading Law’s canons of statutory interpretation in a recent decision evaluating a preemptive provision of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) – 42 U.S.C. §9658 in CTS v. Waldburger. Justice Kennedy applied several semantic and contextual canons: the Ordinary-Meaning Canon, the Fixed-Meaning Canon, the Whole-Text Canon, and the Harmonious Reading Canon. As important, the Court plainly rejected a principle which Reading Law calls a “falsity”: the false notion …

Sustainable Development, John Dernbach

John C. Dernbach

No abstract provided.

Assessing The Legal Toolbox For Sea Level Rise Adaptation In Delaware: Options And Challenges For Regulators, Policymakers, Property Owners, And The Public, Kenneth Kristl

Kenneth T Kristl

Sea level rise is a real and growing issue in the State of Delaware. Over the next 90 years, a significant percentage—between 8 and 11 percent—of Delaware is at risk of being inundated. The threat of inundation has the potential to trigger reactions from some property owners that will seek to protect their interests. Thousands of these resulting individual, ad hoc decisions and non-decisions will make it difficult to carry out a unified strategy to adapt to the massive economic and geographic impacts sea level rise will likely cause in the State. It therefore behooves regulators, policy makers, property owners, …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Identifying Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy

Dr Evgeny Guglyuvatyy

This paper relates to the research project designed to identify which tool: an emission trading or carbon tax would be more appropriate measure to reduce GHG emissions in Australia. To evaluate both of these instruments, this research uses the multi-criteria analysis (MCA) which generally requires two main inputs – evaluation criteria and alternatives performance ranks concerning the criteria. To obtain and verify the evaluation criteria specific to Australian conditions and rank relative importance of those criteria, the Delphi method is utilised by this research. The Delphi study makes use of a group of Australian experts to verify, update and weigh …

Method And Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy

Dr Evgeny Guglyuvatyy

Many countries have already implemented either emission trading schemes (ETS) or carbon taxes or both. National governments tend to prefer ETSs over carbon taxes due to the political acceptability of ETSs. The Australian Government proposed emissions trading as a centrepiece of national climate change policy. However, there is still a debate concerning the choice of instruments for climate change policy. This paper suggests that for a comprehensive policy-making process prospective policy instruments require to be evaluated on a multi-criteria basis. To evaluate carbon tax and emissions trading the multi-criteria analysis (MCA) is proposed. To obtain the criteria specific to Australian …