Environmental Law Commons^™

The International Regulation Of Climate Engineering: Lessons From Nuclear Power, Jesse Reynolds

Jesse Reynolds

Proposals for climate engineering—intentional large scale interventions in climate systems—are increasingly under consideration as potential additional responses to climate change, yet they pose risks of its own. Existing international regulation of large-scale field testing and deployment is considered inadequate. This article looks to the closest existing analogy—nuclear power—for lessons, and concludes that climate engineering research will most likely be promoted and will not be the subject of a binding multilateral agreement in the near future. Instead, climate engineering and its research will probably be internationally regulated gradually, with an initially low degree of legalization, and through ...

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development.

By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace ...

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.)

After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling ...

Climate Engineering Field Research: The Favorable Setting Of International Environmental Law, Jesse Reynolds

Jesse Reynolds

As forecasts for climate change and its impacts have become more dire, climate engineering proposals have come under increasing consideration and are presently moving toward field trials. This article examines the relevant international environmental law, distinguishing between climate engineering research and deployment. It also emphasizes of the climate change context of these proposals, and the enabling function of law. Extant international environmental law generally favors such field tests, in large part because, even though field trials may present uncertain risks to humans and the environment, climate engineering may reduce the greater risks of climate change. Notably, this favorable legal setting ...

Should Chevron Have Two Steps?, Richard M. Re

Indiana Law Journal

Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a ...

Will More, Better, Cheaper, And Faster Monitoring Improve Environmental Management?, Ryan P. Kelly

Ryan P Kelly

Two critical problems in environmental management are a lack of primary data and the difficulty of assessing the environmental impacts of human activities. Producing the information necessary to address these twin challenges is often difficult and expensive, which impedes decisionmaking in environmental management. I focus here on the possibility of making data collection more powerful and more cost-effective with a suite of analyses made tractable by emerging technology for genetic analysis. More, better, cheaper, and faster information about the planet’s living resources promises to influence a wide range of legal and policy processes—from Clean Water Act compliance and ...

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

A. Michael Froomkin

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem.

Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to the deployment of ...

Demanding Supply: The Bioenergy Farm Lease’S Critical Role In Biomass Supply Chain Optimization, A. Bryan Endres, Elise C. Scott

A. Bryan Endres

As the bioenergy industry in the U.S. expands to meet increased demands for transportation fuel under the Renewable Fuel Standard and electrical power under state Renewable Portfolio Standards, farmers will seek the ability to grow dedicated, high-yielding energy crops of a perennial nature on leased property. Given the large amount of farmland in the U.S. that is leased, such contributions will represent a significant, though currently not well understood, portion of the biofuel industry supply chain. Through the use of contracts as governance schemes, the parties to a bioenergy farm lease can navigate three key areas of such ...

Regulation Of Greenhouse Gases And Other Air Pollutants In The First Obama Administration And Major Air Issues For The Second Term, Patricia Ross Mccubbin

Patricia Ross McCubbin

President Barack Obama has made addressing climate change the centerpiece of his environmental policy. Most recently, on June 25, 2013, the President gave a groundbreaking speech detailing the steps his administration will take to reduce greenhouse gas emissions throughout the United States. Of great controversy, the President directed the U.S. Environmental Protection Agency (EPA) to limit emissions of greenhouse gases from both new and existing power plants, which represent 40% of total U.S. carbon emissions. The President’s call to action – in his June 2013 speech and throughout his first term – stands in stark contrast to Congress’s ...

Is ‘Human Rights’ The Right Approach For Protecting The Interests Of Forest-Dependent People?, Prakash Kashwan

Prakash Kashwan

Nature conservation is often promoted in the name of the greater good of humanity. However, in a large number of cases, nature conservation is associated with increased militarization of resource control (see the select bibliography below). International conservation organizations have responded to such concerns by developing proposals for what they refer to as ‘rights-based approaches to conservation’. Some of the biggest conservation organizations have also come together to form the Conservation Initiative on Human Rights (CIHR), which is a consortium of international conservation NGOs that seek to improve the practice of conservation by promoting integration of human rights in conservation ...

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 ...

Implementing The Policy Of The U.N. Declaration On The Rights Of Indigenous Peoples, Roxanne T. Ornelas

The International Indigenous Policy Journal

On September 13, 2007, the United Nations General Assembly voted to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP). This was an historic event as work on UNDRIP had been ongoing for 30 years before its passage. Today, UNDRIP provides a framework for addressing human rights protections for Indigenous peoples globally. This article examines the significance of UNDRIP as a public policy tool for developing national policy to support future resource and land management consultations that are based on free, prior, and informed consent.

Chapter 10: Our Citizen Briefing Points To The God Committee Staff, Zygmunt J.B. Plater

Snail Darter Documents

Notes compiled in preparation for Zygmunt Plater's testimony before the "God Committee" - the Endangered Species Committee of the U.S. Department of the Interior - on January 23, 1979.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.

Chapter 11: The Duncan-Baker Rider Amendmenton The 1980 Water Projects Appropriations Bill, Zygmunt J.B. Plater

Snail Darter Documents

Text of the amendment offered by Congressman John Duncan, Sr. to the 1980 Water Appropriations Bill, which authorized the completion of the Tellico Dam and Reservoir project despite the Supreme Court's finding that the project was in violation of the Endangered Species Act.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.

Chapter 11: The First Defeat Of The Override Attempt—In The Senate Committee On Envt&Public Works, Zygmunt J.B. Plater

Snail Darter Documents

Text of the amendment offered by Congressman John Duncan, Sr. to the 1980 Water Appropriations Bill, which authorized the completion of the Tellico Dam and Reservoir project despite the Supreme Court's finding that the project was in violation of the Endangered Species Act.

Manuscript section from The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Fish and Killed a River. Represents a portion of the original manuscript edited out when the text was condensed for publication.

A State’S Duty To Prepare, Warn, And Mitigate Natural Disaster Damages, Jessica Lucia Frattaroli

Boston College International and Comparative Law Review

The past two decades have brought an onslaught of increasingly severe natural disasters. Scientists warn that climate change will continue to worsen this phenomenon. Infrastructure has not, and will not, hold up to the threats these natural disaster pose. In light of this new global reality, this Note explores what duty a state has to prepare for, warn of, and mitigate natural disaster damages. Past disasters have left victims unsatisfied with their government’s response to their needs. In 2005, Hurricane Katrina left victims in the U.S. Gulf region abandoned for days; in 2008, the Myanmar government refused to ...

Putting A Price On Carbon: The Metaphor, David M. Driesen

David M Driesen

This Essay analyzes the characterization of both pollution taxes and so-called cap-and-trade programs addressing greenhouse gas emissions as policies that “put a price on carbon,” a characterization that has come to dominate both policy discussion and much modern scholarship on environmental instrument choice. It shows that the rationale for characterizing cap-and-trade— a quantitative rather than a pricing mechanism— as putting a price on carbon suggests that analysts should likewise treat traditional regulation as a mechanism putting a price on carbon.

Treating “market-based mechanisms” as uniquely putting a price on carbon reflects and perpetuates a tendency to see markets and government ...

Fixing The Cec Submissions Procedure: Are The 2012 Revisions Up To The Task?, John H. Knox

Golden Gate University Environmental Law Journal

The citizen submissions procedure of the North American Commission for Environmental Cooperation (CEC) celebrates its twentieth birthday this year. After a promising childhood, the procedure has had a stormy adolescence, vexed by accusations of ineffectiveness, bias, and delay. In 2012, the CEC adopted revisions to the procedure that promise to improve its timeliness, but do little or nothing to address its other problems. As the procedure enters its twenties, settled maturity is still a distant prospect. Created in 1993 by the North American Agreement on Environmental Cooperation (NAAEC), a tri-national agreement between Canada, Mexico, and the United States, the submissions ...

Understanding Canada's Responses To Citizen Submissions Under The Naaec, Chris Tollefson, Anthony Ho

Golden Gate University Environmental Law Journal

The North American Agreement on Environmental Cooperation (NAAEC) is a side-agreement to the North American Free Trade Agreement (NAFTA), to which the United States, Canada, and Mexico are signatory parties (Parties). A central feature of the NAAEC is its citizen submission on enforcement matters (SEM) process, by which citizens and citizen groups from any of the three signatory countries can call on the NAAEC Secretariat to consider whether a Party is failing to effectively enforce its environmental laws. To date, there have been eighty-one citizen submissions filed against the three Parties. Much of the scholarship surrounding the SEM process has ...

Seeking A Regulatory Chill In Canada: The Dow Agrosciences Nafta Chapter 11 Challenge To The Quebec Pesticides Management Code, Kathleen Cooper, Kyra Bell-Pasht, Ramani Nadarajah, Theresa Mcclenaghan

Golden Gate University Environmental Law Journal

No abstract provided.