Digital Commons Network^™

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2025, in a Clean Water Act (“CWA”) citizen-suit challenge to a landowner’s filling of a tract of land on St. Simon’s Island, Georgia, under a nationwide dredge-and-fill permit issued by the United States Army Corps of Engineers (the “Corps”), the United States Court of Appeals for the Eleventh Circuit held that the landowner did not waive its right to challenge whether the tract was a wetland by virtue of submitting a form to the Corps in connection with its obtaining coverage under the permit that stated that the landowner accepted that the tract at issue was a jurisdictional water …

Clihhr Leads Push For Regulatory Scrutiny Of Amazon Mining Project, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

The Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), in collaboration with the University of Toronto's International Human Rights Program, filed requests with U.S. and Canadian securities regulators seeking investigations into alleged misrepresentations related to Brazil Potash's proposed mining project in the Brazilian Amazon. The initiative highlights concerns regarding Indigenous rights, environmental impacts, and investor disclosure.

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism., Cynthia A. Williams

Articles by Maurer Faculty

The purpose of this Article is to bring some of the emerging empirical literature evaluating the effects of required greenhouse gas (GHG) disclosure to bear on discussions of disclosure as a mechanism to address climate change. Since disclosure has become such a significant part of global efforts to address climate change, whether it has the effects in fact that are attributed to it in theory is properly subject to interrogation.   In this Article, several interrelated questions will be discussed. First, what does the empirical evidence show about the effects of required (GHG) disclosures on emissions? What mechanisms are engaged in …

Arbitrating Energy: The Impact Of Arbitration On The Energy Transition, Somtochukwu Attamah, Lara B. Fowler

Arbitration Law Review (2009 - Present)

Even prior to recent events in the Middle East, the global energy sector has been undergoing a significant transformation as states pursue regulatory reforms aimed at addressing climate change, environmental protection, and energy system restructuring. These developments have contributed to an increase in disputes arising from energy-related investments, particularly where regulatory measures affect existing investment expectations. This paper examines the role of arbitration in the context of global energy transitions by tracking publicly available arbitration cases through 2022 and analyzing selected energy disputes linked to regulatory change. It explores how arbitration operates not only as a mechanism for resolving …

Trawling For Clues: Examining Nefmc Herring Amendment 8, Christopher Santoro

Honors Scholar Theses

In 2007, almost twenty years ago, the Magnuson-Stevens Act changed the landscape of fisheries management in the US. Through the establishment of Fisheries Management Councils (FMCs), it paved the way for top-down management approaches that helped the government combat nationwide declines or collapses in fish stocks. Among the myriad responsibilities of the FMCs was the expectation that amendments to existing fisheries management plans would be a necessity to adapt to modern circumstances. This thesis focuses on New England Fisheries Management Council's (NEFMC's) Herring Amendment 8 (A8). This amendment, passed in 2021, attempts to lay the groundwork for sustainable management of …

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 2: The United States), Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

This paper, the second in a series of two, focuses on the U.S. legal framework for the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS). The first explores DOCCS governance under international law and is available here: https://scholarship.law.columbia.edu/sabin_climate_change/271/.

DOCCS aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction …

Climate Lies And Unjust Profits, Vanessa Casado-Pérez, Yotam Kaplan, Yael Lifshitz, Niv Meyerson

Faculty Scholarship

The climate crisis has reached a perilous tipping point. Our entrenched reliance on fossil fuels remains unchecked, as fossil fuel corporations wield their power to block meaningful reform and entrench their profits. The political horizon offers little relief—an incoming administration is poised to dismantle vital environmental protections, stripping away the few safeguards that stand between us and climate catastrophe.

In this grim landscape, communities across the nation are turning to the courts with renewed urgency, seeking justice and reform through climate litigation. Yet past efforts have fallen short, stymied by two formidable barriers. First, by centering on greenhouse gas emissions …

The Green Amendment As A Substantive Canon, Blake Zimmerman

Cardozo Law Review

State-level environmental rights amendments, commonly referred to as “Green Amendments,” embody inspired ideals of the environmental conditions owed to all. Their aspirational language—promising a clean and healthful environment for present and future generations—intuits bold action. Nonetheless, when leveraged as a standalone cause of action, the Green Amendment’s ability to exact substantive outcomes has proven less inspired, and jurisprudence in the three Green Amendment states—New York, Pennsylvania, and Montana—reveals several shortcomings. These include that the Green Amendment has been interpreted as providing only procedural rights, the Green Amendment generally does not reach private parties, the Green Amendment’s broad language begets circumspect …

Groundwater Laws And Regulations: Survey Of Twenty-One U.S. States, Rebekah Acosta-Hueston, Abigail Adkins, Khadija Alibhai, Olivia Alland, Matthew C. Allen, Dan Archibald, Jeffrey Berk, John Broussard, Justin Cias, Bradford Eckhart, Blakely Fahning, Jackson Field, Michael Flores, Ellen Earl Gillis, Emma Golightly, Merrick Hayashi, David Hernandez, Kate Keithley, Matthew Maslanka, Erin Milliken, Lucas Mylet, Abigail Nichols, James O’Donnell, James Osteen, Connor Pabich, Cheryl Patterson, Rhyan Phillips, Sarah Rathmell, Margaret Reed, Laura Smith, Kelsi Sorrells, Brooke Thoendel, Ani Tookoian, Sandhya Wagle, Margaret Ward, Mackenzie Watson, Carolyn Wheeler, Ashley Wilde

EENRS Program Reports & Publications

This report constitutes the third and final volume in an ongoing project designed to explore and articulate the groundwater quantity laws and regulations of all fifty U.S. states that could then be used for comparative research. This particular report presents surveys for twenty-one states from across the country. The first volume featured thirteen state surveys while the second volume contained sixteen additional state surveys. Both can be found on the project website at: https://www.law.tamu.edu/US-Groundwater-Laws.

Professor Gabriel Eckstein at Texas A&M University School of Law and Professor Amy Hardberger at Texas Tech University School of Law developed an analytical rubric …

The Legal Framework Of Carbon Trading In The Perspective Of Climate Law: A Comparative Study Of Global Warming Mitigation Strategies Between Indonesia And Brazil, Istikhomah Istikhomah, Laella Millinia

Indonesian Journal of Environmental Law

This study examines the legal framework of carbon trading, focusing on a comparative analysis of global warming mitigation strategies in Indonesia and Brazil. Using a normative juridical method, this research analyzes legal instruments, policies, and international commitments that shape carbon trading mechanisms in both countries. The primary issue explored is the effectiveness of regulatory frameworks in facilitating carbon trading to mitigate climate change while ensuring environmental sustainability and economic growth. Both Indonesia and Brazil have established carbon trading regulations in line with their commitments under the Paris Agreement. However, their implementation strategies differ significantly. Indonesia employs a regulatory based approach …

Climate Change, Flood Management And Internal Displacement In Malaysia: Whose Responsibility?, Sheila Ramalingam Dr

Indonesian Journal of Environmental Law

Malaysia has not escaped the effects of climate change, with the country facing increasingly high precipitation resulting in massive floods occurring almost annually. The floods wreak havoc in terms of destruction of lives and property. Overlooked in this tragedy are those who are internally displaced through the loss of homes, property, livelihood and way of life. Using a qualitative research method, this article seeks to explore the legal rights of Malaysians who are internally displaced due to extreme weather, with a particular focus on floods. In doing so, flood management measures implemented in England and Japan will also be …

Global South Sacrifices: Climate Law Implications On Ambitious Nickel Extractions In Indonesia, Sarah Yessie Hana Monica, Nadine Fakhira Putri Ravanti

Indonesian Journal of Environmental Law

Excessive demands for nickel have prompted massive mining extractions. The global north fascination towards the luscious natural resources owned by the global south has prompted visible environmental degradations. As one of the major global south exporters, Indonesia is bearing the ecological challenges. A smelting furnace in Sulawesi explodes, killing 21 people and injuring 38 others whilst the disposal of heavy metals pollutes the rivers. The 1945 Constitution intended national resources to build the economy with sustainability aspect must also be borne in mind, which was made adamant in the national commitment on Law Number 32 of 2009. This article analyzes …

“Downstream People:” Lessons From The Tar Creek Superfund Site And Quapaw Nation In Pursuit Of An Environmental Justice-Informed Cercla Regime, Leah Fitter

Northwestern Journal of Law & Social Policy

In 1983, the United States Environmental Protection Agency (“EPA”) designated Tar Creek, a former productive zinc and lead mining zone located in northeastern Oklahoma on land predominantly owned by the Indigenous Quapaw people, as a Superfund site. Its designation came in the wake of findings in 1980 that drainage and tailings from the site’s mining days had polluted the zone’s surface water into some of the most toxic water in the country. Tar Creek was an environmental justice disaster that disproportionately exposed the historically marginalized Quapaw Nation to hazardous mining waste and resulted in detrimental health impacts. Despite numerous demonstrations …

The Retreat Of Federal Power And The Rise Of Post-Supremacy Federalism, Victoria Grace Litman

Cleveland State Law Review

This Article introduces the theory of post-supremacy federalism to describe a structural condition in which federal law remains formally binding, but enforcement has durably receded or collapsed. Unlike frameworks grounded in intergovernmental friction or negotiated cooperation, this account begins from federal retreat—the cumulative erosion of enforcement capacity across judicial, administrative, legislative, and executive institutions. Post-supremacy federalism arises when three conditions are met: (1) federal law remains intact; (2) enforcement retreats; and (3) no formal devolution occurs. In this vacuum, states are not merely filling gaps. They are governing by default—under laws that still bind but no longer structure governance in …

Revolutionizing Corporate Accountability: The La Oroya Case And The Right To A Healthy Environment In The Inter-American System, Teresa Jacques Valenzuela

University of Miami Inter-American Law Review

La Oroya v. Perú marks a pivotal moment in the evolution of Business and Human Rights and the Right to a Healthy Environment (R2HE) under the Inter-American legal framework. This paper examines the groundbreaking judgment of the Inter-American Court of Human Rights, which established new standards for state responsibility in regulating and supervising corporate activities to prevent environmental harm. By integrating principles of environmental law with human rights obligations, the case highlights the transformative potential of judicial action in addressing corporate accountability. While the judgment sets a precedent for advancing corporate responsibility, it exposes enduring challenges, including jurisdictional limitations, corporate …

The Right Of Nature: Lessons From Panama For Mangrove Protection In Miami, Jayson Fry

University of Miami Inter-American Law Review

Mangrove ecosystems are indispensable to climate resilience, yet traditional environmental governance has repeatedly failed to prevent their decline. This Note employs a comparative framework to examine Panama and Miami, two rapidly developing coastal regions facing parallel pressures of urbanization and sea-level rise, to demonstrate that mangrove loss persists not because law is absent, but because existing frameworks structurally authorize regulated degradation. Panama’s 2022 Rights of Nature Law, which grants ecosystems legal personhood and enforceable rights, represents a departure from anthropocentric environmental regulation. Its early judicial application in the Cobré Panamá mine case shows how rights-based protections can override extractive economic …

Alaska Dep’T Of Fish And Game V. Federal Subsistence Bd., Mj Fiedler

Public Land & Resources Law Review

A subsistence hunt in Kake, Alaska, during the COVID-19

pandemic sparked a lawsuit from the State of Alaska Department of Fish

and Game challenging the authority of the Federal Subsistence Board to

open the hunt. This lawsuit is a recent addition to a long history of the

State of Alaska’s resistance to federal enforcement of the Alaska National

Interest Lands Conservation Act provision establishing priority for rural

subsistence users. The Ninth Circuit ultimately affirmed the Federal

Subsistence Board’s authority to open the subsistence hunt.

"The Silence Of The Farms": Suppressing Speech And Trampling Transparency To Shield Big Ag, Erin Okuno

Texas A&M Law Review

Do you really know where your last meal came from and whether it was safe to eat? Most people are not aware of the often appalling conditions at agricultural production facilities (aptly known as “factory farms”), including worker injuries and abuse, contaminated food, and environmental pollution, as well as the horrific ways in which the animals are kept, raised, and slaughtered. In the face of these concerning conditions and alarmingly frequent food recalls—including millions of pounds of contaminated meat—it would seem prudent to increase transparency at factory farms, but historically, they have operated behind a shield of secrecy due to …

What The Free-Roaming Cats Dragged In: Regulatory Concerns With Privatized Local Services, Jonathan Korger

Northwestern University Law Review

The United States entrusts local governments to provide citizens with a wide range of public services, and animal control makes up a small but essential piece of these local responsibilities. In recent years, American localities have largely privatized how they manage the nation’s growing free-roaming cat population, relying primarily on animal-loving volunteers and a controversial practice called trap-neuter-return (TNR). Academics have long debated the merits of privatization, but TNR raises a novel question: how should local governments think about regulating a privatized public service when altruism, instead of profits, motivates the service deliverer? This Note argues that TNR demonstrates the …

A Tale Of Two Credits: The Post-Nestlé Alien Tort Statute And Carbon Credit Externalities, Stephanie Mao

Northwestern University Law Review

As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of “phantom” carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms “colonial” carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus …

Revisiting The Missed Pigouvian Opportunity Of The First Industrial Revolution: A Carbon-Based Pigouvian Tax On Ai, Haozheng Jiang

SLU Law Journal Online

As artificial intelligence (AI) reshapes the economy with comparative speed and scope as during the First Industrial Revolution, policymakers face a familiar dilemma: how to preserve technological progress while addressing its negative externalities. This article proposes a uniform, carbon-based Pigouvian tax on AI as a practicable and forward-looking solution to correct one of AI’s most readily measurable negative externalities without stifling innovation. Drawing on lessons from existing carbon-pricing systems, this article contends that such a tax should be designed with flexibility and transparency to promote both effectiveness and political feasibility. Properly structured, the tax would not deter AI development but …

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 1: International Law), Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This paper focuses on the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS), which aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction of new facilities, the intake and processing of water, and the handling and storage of carbon dioxide. Careful siting, design, and operation of DOCCS systems is …

Corporate Fiduciary Duties And The Climate And Biodiversity Crisis, Eric W. Orts, Sandra G. Schafhäutle

Michigan Journal of Environmental & Administrative Law

This Article argues that addressing one of the most urgent environmental challenges facing humanity today—the global climate and biodiversity crisis—calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by …

Expressive And Acquisitive Norms Of Property In The Municipal And Private Contexts: Guerrilla Gardening And Property Reform, Anna Benham

Michigan Journal of Environmental & Administrative Law

There exists a type of expressive property outlaw—the guerrilla gardener. Guerrilla gardening is the practice of gardening without the legal right to do so. The practice of guerrilla gardening can sometimes take on rooted permanence, and as a result, progressively higher stakes. Guerrilla gardeners can operate over years, planting plots of greenery in areas where their hard work can be removed, quite literally, overnight. Many guerrilla gardeners operate with the implicit consent of their neighbors—consent that can be revoked at any time. However, when one bends away from the light insurrections of nonoffensive trespass and examines the other end of …

Four Decades, No Progress: Time For A Columbia River Basin Compact, Liesl L. Bogaard

Michigan Journal of Environmental & Administrative Law

Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River …

Owning Geothermal Energy, Gabriel Eckstein

Michigan Journal of Environmental & Administrative Law

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public …

A Guide To The Best Reading Of Environmental Law: Presumptions For Stability In Statutory Interpretation, Sanne H. Knudsen

Michigan Journal of Environmental & Administrative Law

Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities.

On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for …

Climate Change Litigation Cases In Context, Camille Cameron, Patricia Galvão Ferreira, Riley Weyman

Books

This book provides a timely and detailed analysis of key climate change cases in domestic courts across the globe, examining the procedural, evidentiary, legal, and strategic dimensions of the complex climate governance landscape. It reveals how, as the threats of climate change grow and as policy fails to respond, individuals and groups have increasingly been turning to national courts to seek relief and clarity through litigation.

Chapters:

1. The climate governance tightrope: novel strategies and the role of courts in climate change
2. Mathur v Ontario: youth-led constitutional challenge to government climate policy lights the path to future recognition of climate …

Governing The Energy Bottleneck, Hannah Jacobs Wiseman, Matthew Mchale

Faculty Scholarship

The electrical grid is falling short of its mandate to accommodate new generation—much of which happens to be “clean” zero-carbon generation—and to service load (demand). The bottleneck of grid access, which has vexed renewable energy developers, now affects industries seeking massive quantities of electricity to power single facilities— “large loads” such as data centers and other artificial intelligence operations.

Many of these highly capitalized loads seek clean energy generation; they could, in theory, fund an energy renaissance and provide scale-based benefits for all consumers. But loads that obtain service  are negatively impacting other consumers’ rates and, potentially, the reliability of …

Life, Liberty, And The Pursuit Of A Sustainable Catch: Using Maine's Right To Food To Encourage Sustainability In The Lobster Industry, Emma Rodgers

William & Mary Environmental Law and Policy Review

Every year, millions of sharks, turtles, whales, and other marine life are swept up in fishing gear never meant for them. This collateral damage, known as by-catch, is a persistent and deadly problem in the fishing industry. The World Wildlife Fund (WWF) estimates that around 38 million tonnes of global marine catch each year—40% of all fish pulled from the ocean—is unintended by-catch. Unfortunately, the WWF approximation of annual by-catch likely underestimates the proper amount of by-catch because their estimation includes little information on large marine animals, such as turtles and cetaceans which are also caught in the by-catch process. …