The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Mark P Nevitt

Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …

Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

What The Frack? How Weak Industrial Disclosure Rules Prevent Public Understanding Of Chemical Practices And Toxic Politics, Benjamin W. Cramer

Benjamin W. Cramer

Hydraulic fracturing, known colloquially as “fracking,” makes use of chemically-formulated fluid that is forced down a gas well at great pressure to fracture underground rock formations and release embedded natural gas. Many journalists, environmentalists, and public health advocates are concerned about what may happen if the fracking fluid escapes the well and contaminates nearby drinking water supplies. This article attempts a comprehensive analysis and comparison of all relevant fracking fluid disclosure regulations currently extant in the United States, and considers whether the information gained is truly useful for citizens, journalists, and regulators. In recent years the federal government and several …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm, Elisabeth D. Mering

Michael Blumm

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The proviso authorizes the U.S. Environmental Protection Agency (EPA) overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual, perhaps unprecedented in environmental law. The exceptional nature of section 404(c) …

Deployment Of Geoengineering By The Private And Public Sector: Can The Risks Of Geoengineering Ever Be Effectively Regulated?, Daniela E. Lai

Daniela E Lai

Geoengineering has been described as any large-scale environmental manipulation designed with the purpose of mitigating the effects of climate change without decreasing greenhouse gas emissions (GHGs). Currently there are no specific rules regulating geoengineering activities particularly if geoengineering is deployed in areas beyond national jurisdiction. This article argues that, in order to mitigate the risks of geoengineering, there needs to be effective regulation of its deployment both in international and domestic law. The risks of geoengineering can only be effectively regulated if there is international cooperation between all levels of governments and private individuals involved in the research and development …

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Julia Johnson

This article explores the reasons why previous attempts at biofuels legislation in the United States have not been successful and focuses upon market-level incentives that drive consumer willingness to purchase biofuels. For the U.S.’s biofuels policies to be more effective, the nation must better employ consumer-side factors and devise policies around promoting biofuels’ ability to compete with conventional fuels. Consumer-side factors include biofuels’ accessibility and pricing, as well as the ease and attractiveness of purchasing alternative energy-powered vehicles. The U.S.’s initiatives have also neither been aggressive enough, nor sufficiently comprehensive, to enable the U.S. to mirror Brazil’s success.

This article …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

The Precautionary Principle In The Colombian Constitutional Jurisprudence: Scientific Uncertainty And Selective Omissions [En Español], Daniel A. Monroy, Camilo E. Ossa

Daniel A Monroy C

En el presente artículo se propone hacer una lectura crítica al principio de precaución, buscando profundizar, de manera específica, algunas cuestiones que minan el equilibrio del principio como instrumento guía para la toma decisiones de quien corresponde tomarlas. Así, el artículo está estructurado en dos partes, (i) por un lado se aborda la cuestión teórica, desarrollando la concepción que, en la doctrina, se tiene frente al principio, teniendo en cuenta dos aspectos esenciales como son: las implicaciones que supone afronta la “incertidumbre científica”, elemento fundamental del principio; y, la defensa de la tesis según la cual en muchos casos la …

C(R)Ap And Trade: The Brave New World Of Non-Point Source Nutrient Trading And Using Lessons From Greenhouse Gas Markets To Make It Work, Victor B. Flatt

Victor B Flatt

After several decades of improvement, water quality in the United States is getting worse, and the problem is primarily caused by run-off from non-point sources, such as farms and urban development. These non-point sources have never had regulatory mandates in the Clean Water Act, and have proven very difficult to control. With little likelihood of comprehensive statutory changes, the EPA and the states that administer the Clean Water Act have looked to other regulatory means to address this problem. One of the most prominent has been the use of markets in pollution (particularly for nutrient pollution from run-off) to provide …

The Rural Environmental Cadastre (Car) As A Tool For Environmental Regularization In Land Reform Settlements, Lucas Abreu Barroso, Guilherme Viana De Alencar

Lucas Abreu Barroso

2014 marks the 50th anniversary of the Land Statute (Law n. 4,504 / 1964). Enacted at the beginning of the military dictatorship, the Land Statute was the formula found to contain the pressure coming from rural areas which demanded a government policy based on Land Reform. Although designed primarily to distribute land in the Northern Region, after the re-democratization in 1985, peasant movements were present in the five regions of the country, showing that the struggle for land happened nationwide. According to the National Institute for Settlement and Agrarian Reform, by 2013, in Brazil 1,288,444 families were settled in the …

An Economic Approach To Collective Rights And Their Means Of Supply: The Case Of Right To "The Enjoyment Of A Healthy Environment" And The Right To "Rational Management And Use Of Natural Resources" [En Español], Daniel A. Monroy

Daniel A Monroy C

This paper has two main objectives (i) Demonstrate that the defining characteristic of collective rights related to non-excludable of the benefits derived from the "means" of supply and the material "objects" of rights, is consistent with the microeconomic defining characteristic of so-called "public goods" and "commons " (together we call these as non-excludable resources). On the other hand, (ii) Demonstrate that when we analyze the collective rights as non-excludable resources this aims important omitted challenges by traditional legal doctrine related with the adequate supply of collective rights, this happens because the problems of the -Olsonian- logic of collective action. For …

If You Had A Fundamental Human Right To A Particular Environment, What Would That Look Like?, Carter Dillard

Carter Dillard

Many environmentalists believe that because the earth has in the last several decades become largely a human environment in which pure nature or wild places uninfluenced by humans no longer exist, people ought to abandon the idea of wilderness entirely and do the best they can in a world dominated by humans. That would be a mistake. The idea of nature and wilderness in particular, or of places and things in the world relatively uninfluenced by humans, actually provides the foundation on which to build the international human right to a particular environment that some environmentalists have been looking for. …

Lands Council, Karuk Tribe, And The Great Environmental Divide In The Ninth Circuit, Michael Blumm, Maggie Hall

Michael Blumm

The Ninth Circuit Court of Appeals, the nation’s largest appellate court, with jurisdiction over fifteen judicial districts and 61 million people—almost 20 percent of the nation’s population—spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court’s en banc reviews do not include all twenty-nine judges but instead only panels of eleven. Thus, en banc panels can reflect the kind of diversity of opinion they aim to reduce.

Recently, the …

Protection Of Human Rights And The Environment: Links And Approaches, Abdulkadir Bolaji Abdulkadir

Abdulkadir Bolaji Abdulkadir

Environmental degradations have adverse consequences, both short-term and long-term on the efficacious enjoyment of environmental human rights. Though these consequences are the results of the errant use and abuse of the environment resources by the affluent people and rich states around the globe, and their engagement with such activities that are not environmentally friendly, the most susceptible and sufferers are less privileged and indigent population of the developing and least developed countries. The best example of it is the phenomenon of global warming and its impact on countries across the world. Global warming, which is causing adverse weather conditions as …

Issues And Challenges In Environmental Justice Delivery System In Malaysia And Nigeria: The Need For Liberalising The Strict Rules Of Locus Standi, Abdulkadir Bolaji Abdulkadir

Abdulkadir Bolaji Abdulkadir

The court remains the last hope of the commoners. Where the authority erred in law, the only avenue to make them accountable to the public is through the interference of the court. However, seeking environmental justice is a difficult task for the masses due to the stringent rules involved in environmental matters. These rules pose a great challenge to the victims of environmental degradation. These rules are the problem of locus standi, institution of class action, limitation of time, the issue of cost and burden of proof. All these rules to a great extent present a difficult task to victims …

Comparative Climate Change Torts, Robert F. Blomquist

Robert F. Blomquist

No abstract provided.

A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn

Lea B Vaughn

Abstract: Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self aggrandizing manipulators of various social and environmental causes. A more nuanced examination of “cause lawyering” reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of “cause lawyering” limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that …

The Conflicting Concerns Of The Automatic Stay And Environmental Laws, Brett T. Bradford

Brett T. Bradford

This paper explores the conflict between the automatic stay in bankruptcy law and environmental laws regarding cleaning up pollution. It is shown that the two areas of law have fundamentally different purposes that work to disrupt the bankruptcy process. The purpose of the automatic stay is seriously disrupted by the government imposing clean up costs on the debtor while in bankruptcy. This paper shows the affects of the two conflicting areas of law and possible solutions to the problem.

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Stepan Wood

This Article examines the history of Canadian environmental law to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic, and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced …

Anatomy Of Industry Resistance To Climate Change: A Familiar Litany, Robert L. Glicksman

Robert L. Glicksman

The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.

This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch …

Symposium Introduction: Contemporary Issues At The Intersection Of Public Health And Environmental Law, Patricia Ross Mccubbin

Patricia Ross McCubbin

This article serves as an introduction to the forthcoming symposium in the Southern Illinois University Law Journal, which presents the proceedings of a conference held at the SIU School of Law on February 27, 2009, on “Contemporary Issues at the Intersection of Public Health and Environmental Law.”

Epa's Endangerment Finding For Greenhouse Gases And The Potential Duty To Adopt National Ambient Air Quality Standards To Address Global Climate Change, Patricia Ross Mccubbin

Patricia Ross McCubbin

The U.S. Environmental Protection Agency (EPA or the Agency) recently announced its intention to make a finding under the Clean Air Act that greenhouse gases from new cars and light trucks endanger the public health and welfare by contributing to global climate change. That proposed endangerment finding and the vehicle emission standards that will follow are highly controversial, with industry representatives vigorously challenging EPA’s scientific conclusions. Of even greater controversy, however, is the possibility that issuance of the final endangerment finding will obligate EPA and the states to regulate greenhouse gases from nearly every sector of the economy with “national …

A Federal Obligation, Robert R.M. Verchick

Robert R.M. Verchick

No abstract provided.

An Unnatural Disaster: The Aftermath Of Hurricane Katrina, David Driesen, Alyson Flournoy, Sheila Foster, Eileen Gauna, Robert Glicksman, Carmen Gonzalez, David Gottlieb, Donald Hornstein, Douglas Kysar, Thomas Mcgarity, Catherine O'Neill, Clifford Rechtschaffen, Sidney Shapiro, Christopher Schroeder, Rena Steinzor, Joseph Tomain, Robert R.M. Verchick, Karen Sokol

Robert R.M. Verchick

No abstract provided.

Critical Space Theory: Keeping Local Geography In American And European Environmental Law, Robert R.M. Verchick

Robert R.M. Verchick

Recently, legal scholars have begun to explore the meaning and significance of geographic space in law within the United States and internationally, a project highlighted in a 1996 Stanford Law Review symposium. Much of this discussion draws implicitly and explicitly on critical legal theory in approaching geographic themes -- suggesting the beginning of what the author calls "Critical Space Theory." This article uses Critical Space Theory to address the legal significance of geography in relation to two environmental issues in the United States and the European Union: (1) transborder waste transportation and (2) judicial standing. Each issue raises questions of …

In Defense Of Environmental Rights In East European Constitutions, Elizabeth F. Brown

Elizabeth F Brown

This Article analyzes how the environmental rights in East European constitutions could have been drafted to make them enforceable, rather than merely aspirational.