Natural Resources Law Commons^™

Interpreting "Enhancement Of Survival" In Granting Section 10 Endangered Species Act Exemptions To Animal Exhibitors, Anne Haas

Pace Environmental Law Review

Managing endangered species in captivity presents a unique set of problems. Despite their enormous potential to preserve species in the wild - through captive breeding programs, conservation initiatives, and environmental advocacy - many facilities are lagging behind. Part II of this note discusses the evolution of zoos from ancient Egyptian displays of wealth to modern day conservation and education centers. Focusing on the Endangered Species Act, Part III introduces various laws protecting captive animals. Part IV discusses the great potential of zoos to preserve species and the ecosystems on which they rely, while acknowledging the diverse nature of animal exhibitors …

A Sitting Duck: Local Government Regulation Of Hunting And Weapons Discharge In The State Of New York, Gary E. Kalbaugh

Pace Environmental Law Review

On March 31, 2014, the New York State Legislature significantly modified New York's Environmental Conservation Law. The Environmental Conservation Law imposes limitations on the discharge of longbows. A longbow is defined by New York's Department of Environmental Conservation as “a longbow, recurve bow or compound bow which is designed to be used by holding the bow at arm's length, with arrow on the string, and which is drawn, pulled and released by hand or with the aid of a hand-held trigger device attached to the bowstring.”

Before the 2014 amendment, longbows could not be discharged in such a way that …

A Comparative Legal Approach For The Risks Of Offshore Methane Hydrates: Existing Laws And Conventions, Roy Andrew Partain

Pace Environmental Law Review

This article provides a review of the existing laws and conventions that might be applied to the development of offshore methane hydrates. Offshore methane hydrates are an exciting emerging new energy resource; one with great potential to provide vast energy supplies, and also one with substantially novel risks and hazards to the environment, marine flora and fauna, and adjacent human communities. Some of these new risks include cataclysmic levels of greenhouse gas emissions, subsea landslides, and tsunamis. As such, it is important to take a survey of the existing laws and conventions that could be applied to such risks, examine …

The Curious Untidiness Of Property & Ecosystem Services: A Hybrid Method Of Measuring Place, John Page, Ann Brower, Johannes Welsch

Pace Environmental Law Review

Theoretically, this paper builds on ideas of ecosystem services (ES) in landscapes, property theories of plurality and marginality, and the legal geography of localized place. Methodologically, we will explore three divergent ways of measuring ES in a propertied landscape. Substantively, combining property theory and spatial methods in this way will allow for future consideration of property arrangements that might be more optimal and representative of contextualized place.

Part II presents the qualitative method--a narrative description of the flow of resources and services across a transect from the mountains to the sea. Narrative is effective in describing the aesthetics and indelibly …

Innovative Financing For Renewable Energy, Richard L. Ottinger, John Bowie

Pace Environmental Law Review

This paper discusses successful innovative methods for financing the high initial equipment costs of many renewable energy resources, with case studies of their application. Financial instruments for renewable energy installations are frequently dependent on physical and economic infrastructure. In response to this fundamental interconnectedness between infrastructure, economy, and financial instruments, this paper follows a rough structure of financing methods used in: Areas unserved by an electricity grid; Areas of modest means served by limited transmission interconnections; and Areas with developed regional or national grid connectedness.

Renewables have many benefits, but they also face challenges as they enter the existing market …

Improving The Legal Implementation Mechanisms For A Carbon Tax In China, Haifeng Deng

Pace Environmental Law Review

Within the framework of existing Chinese environmental laws, carbon taxation faces four main challenges: the contradiction of existing taxes, conflict with the carbon emissions trading system, necessary adjustments to the organizational structure of tax collection and management, and coordination with international trade rules. Implementing a carbon tax is a complete and systematic process containing three stages: introduction, collection, and impacts assessment. In order to address these problems, it is necessary to construct legal implementation mechanisms for carbon taxation in China. The legal mechanisms of implementing a carbon tax include a series of coordination and safeguard measures aimed at optimizing the …

Alternative Funding For An Equitable Park System In New York City And State, Christopher Rizzo

Pace Environmental Law Review

Private efforts have successfully transformed a select few parks, which has created allegations of park inequity at a time when many neighborhood parks are overgrown and understaffed. Public-private partnerships reflect a national debate about the proper role of the private sector in maintaining parks, highways, bridges, and other essential civic infrastructure. But for most neighborhood parks the debate is irrelevant. They completely lack access to either adequate public funding or private revenue. One-time infusions of public capital dollars into the neediest parks cannot solve the ongoing operation and maintenance problem.

This paper identifies an array of alternative revenue strategies to …

Municipal Wildfire Management In California: A Local Response To Global Climate Change, Sameer Ponkshe

Pace Environmental Law Review

This Note will examine the wildfire issue in California within the context of municipal government. Part II-A will present a concise look at the current state of affairs regarding climate change, which demonstrates that because little has changed on the international level regarding emissions reductions, the responsibility of protecting people from the catastrophes associated with climate change will fall to lower levels of government. Part II-B will then discuss how wildfire activity is affected by climate change, with specific attention to how the western U.S. has been affected. Part III of this Note focuses on actions of several different municipalities …

How To Avoid Constitutional Challenges To State Based Climate Change Initiatives: A Case Study Of Rocky Mountain Farmers Union V. Corey And New York State Programs, Lauren Baron

Pace Environmental Law Review

Considering the decision in Rocky Mtn. v. Corey and the EPA's actions in accordance with the President's Plan, this comment will outline best practices states can use in creating climate initiatives based on the challenges California faced in Rocky Mtn. v. Corey. Part II of this comment will analyze the reasoning in Rocky Mtn. v. Corey. Although certiorari was denied in the case, Part II will analyze recent Supreme Court dormant Commerce Clause jurisprudence to determine which cases are relevant to consider when analyzing a dormant Commerce Clause challenge to state based climate initiatives. Part III will discuss the current …

The Declaration Of Interdependence: A New Declaration To Overthrow The Tyranny Of Small Decisions And Achieve Sustainability, Phillip M. Kannan

Pace Environmental Law Review

Two declarations are the foundation of modern international environmental law and policy: the Stockholm Declaration on the Human Environment and the Rio Declaration on the Environment and Development. Both of these declarations include well-established principles of international environmental law and policy such as state responsibility, territorial sovereignty, the necessity of ecosystem protection, and the importance of international cooperation. In addition, they both embrace revolutionary ideas. For example, the Stockholm Declaration held out the possibility of a human right to a healthy environment and suggested the need to integrate economic development and social development with environmental protection, which is the seed …

Ending The Tyranny Of The Status Quo: Building 21st Century Environmental Law, Scott Schang, Leslie Carothers, Jay Austin

Pace Environmental Law Review

Over the past few years, the Environmental Law Institute (ELI or the Institute) has worked to assess the notable successes and current challenges of United States environmental law to inform a new agenda for the twenty-first century. Founded in 1969, at the beginning of modern environmental law, the Institute has been both participant and analyst of an impressive record of major accomplishments in pollution reduction, greater protection of public health, and more intelligent conservation and management of natural resources, in both the public and the private sector. Like the majority of environmental lawyers and policy professionals examining today's challenges, we …

Environmental Law's Heartland And Frontiers, Todd S. Aagaard

Pace Environmental Law Review

This short paper offers three propositions to help maintain the traditional core of environmental law while also expanding environmental concerns into the frontiers of the field: 1. Environmental law in the heartland and environmental law at the frontiers of the field differ in important ways. 2. The distinctive features of the heartland and frontiers provide important functional benefits for the adaptive development of environmental law in each respective area. 3. Maintaining a distinctive heartland and frontiers of environmental law creates a dialectic relationship between the two that includes tension but also, if properly managed, potential synergies.

The locus of innovation …

The Safe Drinking Water / Food Law Nexus, Margot J. Pollans

Pace Environmental Law Review

At 2 AM on August 2, 2014, the Ohio Environmental Protection Agency issued the following warning to the citizens of Toledo: “Do Not Drink.” The Ohio City's tap water was contaminated with microcystin, a toxin that can cause diarrhea, vomiting, and abnormal liver function. The source was an algal bloom in Lake Erie resulting from high levels of agricultural fertilizers and animal waste. For three days, Toledo residents drank only bottled water.

This is just one of many similar examples of agricultural contamination of urban drinking water supplies. Creating a physical connection between urban and rural communities, this pollution highlights …

California Climate Law---Model Or Object Lesson?, Daniel A. Farber

Pace Environmental Law Review

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes.

At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening …

Environmental Law In Austerity, James Salzman, J.B. Ruhl, Jonathan Remy Nash

Pace Environmental Law Review

The EPA has always had enemies. Vigorously denouncing EPA's activities as “overzealous,” “job killing,” or a “regulatory train wreck” has become commonplace on the campaign trail and from special interest groups covered by the agency's reach. Perhaps this is to be expected, since EPA's regulations influence a remarkably wide range of activities throughout the country. The agency, though, has been subject to far more than just harsh rhetoric.

Over the past three decades, there have been concerted efforts in Congress to restrain the EPA both by legislation and, less directly, by reducing its resources. Crippling amendments have largely failed but …

Distributed, Nega-, And Reclaimed: Setting Expectations In The "New" Resource Base, Michael Pappas

Pace Environmental Law Review

At this point in time, environmental law faces the task of drawing a budget for living within our resource means, and this budget will be tightly stretched. It must provide energy, water, food, and materials to a growing population; it must cope with the depletion of formerly abundant resources; and it must act both to mitigate climate impacts and adapt to the changes already manifesting. To do this, the budgeting must consider resources and uses that have previously been considered insignificant and that have not received attention in terms of ownership, allocation, or governance. Thus, the future of environmental law …

Engines Of Environmental Innovation: Reflections On The Role Of States In The U.S. Regulatory System, Alexandra Dapolito Dunn, Chandos Culleen

Pace Environmental Law Review

This article focuses on the role that states play in environmental regulation. Specifically, this article offers examples of the central part in the evolution of United States environmental regulation states played in the past, continue to play today, and will play in the future. First, this article explores the history of state environmental regulation, demonstrating that despite a lack of resources, states were actively engaged in environmental regulation before the advent of the modern era of federal environmental regulation in the 1970s. This article relates not only the regulatory efforts of states, but also the practical benefits of state regulation. …

Bridging The North-South Divide: International Environmental Law In The Anthropocene, Carmen G. Gonzalez

Pace Environmental Law Review

This article calls for a fundamental reorientation of international environmental law to bridge the North-South divide and respond to the ecological crises of the Anthropocene. Such a reconceptualization of international environmental law must be normatively grounded in respect for nature and in the quest for environmental justice within, as well as between, countries.

International environmental law must directly challenge the relentless drive toward economic expansion and unbridled exploitation of people and nature rather than merely attempt to mitigate its excesses. An essential step toward such a reconceptualization is to examine the ways in which international law has historically engaged with …

Reconceptualizing The Future Of Environmental Law: The Role Of Private Climate Governance, Michael P. Vandenbergh

Pace Environmental Law Review

The title of this Symposium, Reconceptualizing the Future of Environmental Law, accurately captures the challenge facing environmental law scholars and policymakers in 2015. The success of environmental law in the future will not arise from doubling down on the approaches developed over the last 50 years. Instead, it will arise from our willingness to learn from the past without being bound by the conceptual frameworks that dominated the early development of the field.

In particular, a successful future for environmental law is more likely to emerge if we acknowledge that the environmental problems, policy plasticity, and regulatory institutions that shaped …

Pace Environmental Law Review 2015 Symposium: Reconceptualizing The Future Of Environmental Law, Cayleigh S. Eckhardt

Pace Environmental Law Review

Pace Environmental Law Review's 2015 Symposium, entitled Reconceptualizing the Future of Environmental Law, can be traced back to over a year ago when a few Pace Environmental Law faculty members approached me and Katie Hatt, the Managing Editor of the law review, with an idea.1 No, not an idea, rather a question. They simply asked us, “what do you think the future holds for environmental law?” This question transformed into an extensive conversation about the past, the present, and the future of environmental law.

Koontz V. St. Johns River Water Management District: Can Environmental Impact Analysis Preserve Sustainable Development From The New Reach Of The Supreme Court's Exactions Jurisprudence?, Patrick F. Carroll

Pace Environmental Law Review

The United States Supreme Court has raised the legal standard for a municipality to use land use exactions for sustainable development. Land use exactions frequent local government affairs and occur when a government demands a dedication of land or money in exchange for a municipal approval, such as a permit. Koontz v. St. Johns River Water Management District found certain proposed government exactions for land use permits as “demands” on the applicant and required a “‘nexus' and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant's proposal,” regardless of whether the exaction was …

In Defense Of Ecosystem Services, J.B. Ruhl

Pace Environmental Law Review

It is a great honor and pleasure to deliver the Garrison lecture at the Pace University Law School, especially on an evening during which we have paid fitting tribute to the lives of two giants of environmental law and policy, Joe Sax, and David Sive. I chose the topic of ecosystem services for this auspicious occasion for three reasons and to answer three questions.

First, the path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it …

The Master Limited Liability Partnerships Parity Act: Friend Or Foe?, Sonia J. Toson

Pace Environmental Law Review

In April of 2013, Democratic Senator Chris Coons of Delaware introduced legislation that seeks to level the playing field between renewable and non-renewable energy companies. Titled the “Master Limited Partnerships Parity Act” (MLPPA), the legislation would amend the federal tax code to allow renewable energy companies to form master limited partnerships and thereby gain valuable financing and tax advantages. This legislation would clear the way for the formation of master limited partnerships investing in renewable energy, which would have significant impact on clean energy production in the United States. This article discusses the Master Limited Partnerships Parity Act and explores …

Reexamining What We Stand To Lose: A Look At Reinitiated Consultation Under The Endangered Species Act, Catherine E. Kanatas, Maxwell C. Smith

Pace Environmental Law Review

This article first examines the role reinitiated consultation plays within Congress's statutory framework and concludes that in many ways, reinitiated consultation is the glue that holds the Endangered Species Act's protective scheme together. While the ESA generally prohibits any injury to an endangered species, Congress has authorized the Service to permit such injuries under certain circumstances. But these authorizations must be accompanied by a limit that will trigger reinitiated consultation if exceeded. Thus, without reinitiated consultation, these preauthorized injuries or “takes” would prove gaping leaks in Congress's “Ark,” leaving little or no safety for endangered species. Moreover, reinitiated consultation has …

Regulation Of Chemical Risks: Lessons For Reform Of The Toxic Substances Control Act From Canada And The European Union, Adam D.K. Abelkop, John D. Graham

Pace Environmental Law Review

The purpose of this Article is to compare the regulatory systems in Canada and the EU, and use comparative insights to draw some lessons that may be of interest to U.S. policy makers engaged in TSCA reform. CEPA and REACH are seen by stakeholders as state of the art in chemicals assessment and management, and thus the U.S. may draw useful insights from them. Indeed, the European Union and Canada have each been urging other countries to join in a globalization of the REACH or Canadian programs, respectively. Regardless of what TSCA reformers choose to learn from the Canadian and …

Arguments In Support Of A Constitutional Right To Atmospheric Integrity, Elizabeth Fuller Valentine

Pace Environmental Law Review

As used in this paper, “atmospheric integrity” refers to the interrelated physical, chemical, and biological processes on planet Earth that enable human and non-human life now and in the future and recognizes that modern civilization has developed within the relatively stable, current geologic period known as the Holocene. I chose to focus on atmospheric integrity, rather than more broadly on environmental integrity, because the health of terrestrial and aquatic habitats is inextricably tied to atmospheric stability. This assertion is not meant to minimize the multitude of harms impacting land and water. It is just that the magnitude of the climate …

The Tyranny Of Plastics: How Society Of Plastics, Inc. V. County Of Suffolk Prevents New Yorkers From Protecting Their Environment And How They Could Be Liberated From Its Unreasonable Standing Requirements, Albert K. Butzel, Ned Thimmayya

Pace Environmental Law Review

Ever since the Court of Appeals of New York issued its holding in the landmark case Society of Plastics Industry, Inc. v. County of Suffolk, citizen oversight of government-approved and government projects with environmental implications has suffered curtailment inconsistent with the objectives of the State Environmental Quality Review Act (SEQRA). At the center of the conflict between SEQRA and citizen enforcement are the restrictive standing requirements formulated by Society of Plastics, which include the demand that a petitioner demonstrate harm distinct from injury to the general public. Not only does such a prerequisite for consideration of a case's merits ignore …