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Full-Text Articles in Environmental Law

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Josh Eagle

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Eric Biber

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter Jan 2020

Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter

Natural Resources Journal

No abstract provided.


When States’ Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson Feb 2018

When States’ Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson

Heidi Gorovitz Robertson

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those ...


Cleaner, Greener, Healthier: A Prescription For Stronger Canadian Environmental Laws And Policies By David R. Boyd, Alex D. Ketchum Feb 2018

Cleaner, Greener, Healthier: A Prescription For Stronger Canadian Environmental Laws And Policies By David R. Boyd, Alex D. Ketchum

The Goose

Review of David R. Boyd's Cleaner, Greener, Healthier: A Prescription for Stronger Canadian Environmental Laws and Policies.


Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler Feb 2018

Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler

Public Land and Resources Law Review

In MEIC v. U.S. Office of Surface Mining, the cost of coal mining’s climate impacts and the agency’s NEPA review obligations are at issue. The United States District Court for the District of Montana found that the Office of Surface Mining and Enforcement failed to adequately consider the need for an EIS and to take a hard look at the indirect, cumulative, and foreseeable impacts of a proposed coal mine expansion in central Montana. In its NEPA analysis, the court concluded that if the benefits of a carbon-intensive project are quantified, then the costs to the climate ...


Intellectual Property Policies For Solar Geoengineering, Jesse Reynolds, Joshua D. Sarnoff, Jorge L. Contreras Feb 2018

Intellectual Property Policies For Solar Geoengineering, Jesse Reynolds, Joshua D. Sarnoff, Jorge L. Contreras

Jesse Reynolds

Governance of solar geoengineering is important and challenging, with particular concern arising from commercial actors’ involvement. Policies relating to intellectual property, including patents and trade secrets, and to data access will shape private actors’ behavior and regulate access to data and technologies. There has been little careful consideration of the possible roles of and interrelationships among commercial actors, intellectual property, and intellectual property policy. Despite the current low level of commercial activity and intellectual property rights in this domain, we expect both to grow as research and development continue. Given the public good nature of solar geoengineering, the relationship between ...


Cholera And Climate Change: Pursuing Public Health Adaptation Strategies In The Face Of Scientific Debate, Robin Kundis Craig Feb 2018

Cholera And Climate Change: Pursuing Public Health Adaptation Strategies In The Face Of Scientific Debate, Robin Kundis Craig

Utah Law Faculty Scholarship

Climate change will affect the prevalence, distribution, and lethality of many diseases, from mosquito-borne diseases like malaria and dengue fever to directly infectious diseases like influenza to water-borne diseases like cholera and cryptosporidia. This Article focuses on one of the current scientific debates surrounding cholera and the implications of that debate for public health-related climate change adaptation strategies.

Since the 1970s, Rita Colwell and her co-researchers have been arguing a local reservoir hypothesis for cholera, emphasizing that river, estuarine, and coastal waters often contain more dormant forms of cholera attached to copepods, a form of zooplankton. Under this hypothesis, climatically ...


The Flip Side Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen Feb 2018

The Flip Side Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen

Utah Law Review

This Article explores the flipside of Michigan - v. EPA - where the Court’s logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and—like cost—deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate. In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget.


Beyond The Pipeline Wars: Reforming Environmental Assessment Of Energy Transport Infrastructure, James W. Coleman Feb 2018

Beyond The Pipeline Wars: Reforming Environmental Assessment Of Energy Transport Infrastructure, James W. Coleman

Utah Law Review

In recent years, the role of transport infrastructure in energy markets has become a flashpoint for legal conflict. On one hand, the world is experiencing an unprecedented buildout of all kinds of energy transport: oil and gas pipelines, liquefied natural gas projects, power transmission, and port facilities for coal and oil. On the other hand, environmental advocates have increasingly insisted that pipelines and other transport projects should not be built if they would encourage fossil fuel production in markets “upstream” and fossil fuel consumption in markets “downstream” of these projects.

Governments have struggled with how to respond. President Obama famously ...


Guest Species: Rethinking Our Approach To Biodiversity In The Anthropocene, Karrigan Börk Feb 2018

Guest Species: Rethinking Our Approach To Biodiversity In The Anthropocene, Karrigan Börk

Utah Law Review

Western environmental law rests on an outdated philosophy that only fully “natural” places, species, and ecosystems should receive full protection, while human influenced places, species, and ecosystems are lesser habitats not worthy of full-throated protection. As we move into the Anthropocene—a dawning geologic age marked by the emergence of humanity as the dominant force shaping the natural world—this simplistic view loses its power to guide our decisionmaking. In a world where more than 75% of ice free land shows evidence of human alteration, if anthropogenic species, places, or ecosystems are not worth protecting, then there simply is not ...


Backyard Beekeeping In The Beehive State: Salt Lake City’S Beekeeping Regulations, Nuisance Concerns, And The Legal Status Of Honey Bees, Robert T. Moriarty Feb 2018

Backyard Beekeeping In The Beehive State: Salt Lake City’S Beekeeping Regulations, Nuisance Concerns, And The Legal Status Of Honey Bees, Robert T. Moriarty

Utah Law Review

Recognizing the increasing popularity of urban beekeeping and the vital role that bees play in the ecosystem, the Salt Lake City Council has acted to allow keeping bees within city limits. To ensure that bees would not present a significant nuisance, the council implemented a simple set of guidelines to regulate the practice. While the Ordinance is an excellent first step that effectively addresses most of the sources of nuisance associated with honey bees, it would be wise to reassess its provisions now that it has been in place for nearly eight years. Perhaps a survey of complaints about urban ...


Covariant Risk And Nutrient Credit Training, Brian Sawers Feb 2018

Covariant Risk And Nutrient Credit Training, Brian Sawers

Endnotes

Every summer, a dead zone is created in the Chesapeake Bay. The dead zone is created by too much of a good thing: nutrients, especially nitrogen and phosphorus. The largest source of excess nutrients in the Chesapeake is agriculture; manure and artificial fertilizers are washed into streams that eventually reach the bay. In the bay, nitrogen and phosphorus create an algae bloom, which consumes all the dissolved oxygen. Some fish escape, but other creatures expire in this dead sea within the Chesapeake Bay.

To reduce the excess nutrients reaching the bay, several states are experimenting with nutrient credit trading. A ...


Connecticut’S Evolving Views Of Riparian Rights And The Public Trust, Terence H. Mcallister Jan 2018

Connecticut’S Evolving Views Of Riparian Rights And The Public Trust, Terence H. Mcallister

Boston College Environmental Affairs Law Review

Waterbury v. Washington came to the Connecticut Supreme Court as a dispute over water rights that could have been resolved via a number of statutory or common law doctrines. Instead, the court sought to articulate a uniform theory of riparian law in Connecticut, acknowledging all of these competing doctrines. This uniform theory was one of regulated riparianism. After articulating this standard, the court left many decisions to be worked out by lower courts. Since Waterbury was decided, those lower courts have struggled to incorporate a view that reconciles the public trust doctrine in light of Connecticut’s statutory scheme. Many ...


Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone Jan 2018

Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone

Boston College Environmental Affairs Law Review

In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act (“FWPCA”). In this case, the United States Navy violated the FWPCA by discharging munitions—a pollutant as defined by the statute—during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy ...


Cultivating A Culture Of Environmental And Natural Resources Collaboration In Utah, Danya Rumore Jan 2018

Cultivating A Culture Of Environmental And Natural Resources Collaboration In Utah, Danya Rumore

Environmental Dispute Resolution Program

Unhealthy air quality. Growing demands for water in an arid state. Conflicts over public lands and how those lands should be managed. These are just a few environmental and natural resources challenges here in Utah that we hear “keep people up at night.” Such challenges are indeed daunting, and they will not be easily solved. However, in every challenge there is an opportunity. And when it comes to environmental and natural resources challenges, there is a powerful opportunity for people to work together to find mutually beneficial solutions that are, as consensus building guru Larry Susskind puts it, “fair, efficient ...


From Little Acorns, Nicholas A. Robinson Jan 2018

From Little Acorns, Nicholas A. Robinson

Pace Law Faculty Publications

Inaugurating Writing Nature: A Seasonal Program of Readings of Nature Writings, under the shared auspices of the Teatown Lake Reservation and the Hudson Valley Writers Center. Presented at the Hudson Valley Writers Center, Sleepy Hollow, New York.


Water Governance In Haiti: An Assessment Of Laws And Institutional Capacities, Ryan Stoa Jan 2018

Water Governance In Haiti: An Assessment Of Laws And Institutional Capacities, Ryan Stoa

Ryan B. Stoa

The Republic of Haiti struggles to sustainably manage its water resources. Public health is compromised by low levels of water supply, sanitation, and hygiene, and water resources are often contaminated and unsustainably allocated. While poor governance is often blamed for these shortcomings, the laws and institutions regulating water resources in Haiti are poorly understood, especially by the international community. This study brings together and analyzes Haitian water laws, assesses institutional capacities, and provides a case study of water management in northern Haiti in order to provide a more complete picture of the sector. Funded by the Inter-American Development Bank as ...


Wyoming V. Zinke, Jaclyn Van Natta Jan 2018

Wyoming V. Zinke, Jaclyn Van Natta

Public Land and Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, which ...


California V. United States Bureau Of Land Management, Molly M. Kelly Jan 2018

California V. United States Bureau Of Land Management, Molly M. Kelly

Public Land and Resources Law Review

After President Trump’s Executive Order No. 13783 encouraging relaxing regulatory burdens on energy production, the Bureau of Land Management reevaluated its 2016 “Waste Prevention Rule” which addressed waste of natural gas from venting, flaring, or other leaks resulting from oil and natural gas production activities. The BLM sought to postpone the Rule’s compliance date to give the agency time to promulgate a new rule—effectively overruling the 2016 Rule. Plaintiffs challenged the agency’s compliance under the Administrative Procedures Act, and the court found the BLM did not properly follow APA requirements.


Reviewing Reservoir Operations: Can Federal Water Projects Adapt To Change?, Reed D. Benson Jan 2018

Reviewing Reservoir Operations: Can Federal Water Projects Adapt To Change?, Reed D. Benson

Reed D. Benson

This Article begins by reviewing the purposes for federal water projects, and identifies some of the trade-offs involved in operating projects for certain purposes. It then addresses the legal factors that determine or influence project operations, beginning with project authorizing statutes and ending with federal environmental laws. The Article examines Corps and Bureau policies regarding project operating plans, the reasons for agency reluctance to review and revise their plans, and some of the factors that prompt the agencies to proceed with reviews. It then summarizes periodic review requirements in two analogous contexts—federal land management plans, and hydropower project licenses ...


Hb 1 - Space Flight, Malissa Caroline Barger, Ethan L. Smith Jan 2018

Hb 1 - Space Flight, Malissa Caroline Barger, Ethan L. Smith

Georgia State University Law Review

The Act limits the civil and criminal liability of a space flight entity for injuries sustained by space flight participants arising from ordinary negligence. The Act defines new terms and provides a statutory waiver form that participants with informed consent must sign. The Act mandates space flight participants sign the waiver before participating in any space flight activity. The Act does not limit the liability of space flight entities for gross negligence or intentional acts, nor does it prevent suits from anyone other than the space flight participant.


Bitterrooters For Planning, Inc. V. Montana Department Of Environmental Quality, Rebecca A. Newsom Jan 2018

Bitterrooters For Planning, Inc. V. Montana Department Of Environmental Quality, Rebecca A. Newsom

Public Land and Resources Law Review

In Bitterrooters for Planning, Inc. v. Montana Department of Environmental Quality, the Montana Supreme Court found that the Montana Department of Environmental Quality did not violate the Montana Environmental Policy Act when the department issued a wastewater discharge permit for a large retail merchandise store. This decision enforced a narrow interpretation of agency requirements under the Montana Department of Environmental Quality Act, focusing only on direct effects with a close causal connection to the agency action.


Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy Jan 2018

Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy

Faculty Scholarship

No abstract provided.


Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad Jan 2018

Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.


Trademarks And Private Environmental Governance, David E. Adelman, Graeme W. Austin Jan 2018

Trademarks And Private Environmental Governance, David E. Adelman, Graeme W. Austin

Notre Dame Law Review

This Article examines the relationship between private environmental governance and trademark law. Over the past two decades, green trademarks and other forms of private governance have flourished in tandem with the retreat from national and international public law modalities of environmental regulation. The rising political opposition to environmental regulation partly accounts for this change. Also relevant is the rise of globalization, which due to jurisdictional and trade constraints has diminished the effective regulatory control countries have over products sold in their markets.

Private environmental governance is premised on consumers “voting with their wallets” by selecting products that reflect not just ...


Environmental Law Practice: Problems And Exercises For Skills Development, Noah M. Sachs Jan 2018

Environmental Law Practice: Problems And Exercises For Skills Development, Noah M. Sachs

Law Faculty Publications

One of the few books to focus on practice as opposed to pure substantive issues, this book provides environmental law teachers with a new resource for imparting practical skills. The authors have drawn on their wide experience as environmental law professors and practitioners to develop realistic exercises that teach the craft of environmental lawyering. Readers will learn how to bring a federal enforcement action against a polluter; negotiate a Superfund settlement; prepare documents and strategy for a citizen's suit; counsel a corporation on environmental compliance; and comment on an EPA rule making, as well as many other relevant skills ...


Too Big To Fail: Limiting Public Risk In Hydropower Licensing, Joshua Viers, Daniel Nover Jan 2018

Too Big To Fail: Limiting Public Risk In Hydropower Licensing, Joshua Viers, Daniel Nover

Hastings Environmental Law Journal

No abstract provided.


Using Drones To Fight Slavery In The Fields: An Examination Of The Practicality And Constitutionalityof Applying 21st Century Technology To A 21st Century Problem, Claire Wilkens Jan 2018

Using Drones To Fight Slavery In The Fields: An Examination Of The Practicality And Constitutionalityof Applying 21st Century Technology To A 21st Century Problem, Claire Wilkens

Hastings Environmental Law Journal

No abstract provided.


Conservation Easements For Green Urban Spaces, Matthew Olhausen Jan 2018

Conservation Easements For Green Urban Spaces, Matthew Olhausen

Hastings Environmental Law Journal

No abstract provided.