Digital Commons Network^™

Data Centers Face Volatile Regulatory Landscape, Michael B. Gerrard

Sabin Center for Climate Change Law

The construction of new data centers for artificial intelligence has become a major engine of the U.S. economy. More than 700 data centers are now under construction across 40 states, with many more to come.

These are typically multi-billion-dollar projects. This boom is facing growing public opposition, which has led to an extremely volatile regulatory land-scape, especially at the state and local levels. That landscape is the subject of this article. This volatility has raised the cost of capital for data centers and led to the cancellation of many, and to heightened due diligence by lenders and others.

Seqra Developments: Amendments To Ease Housing Construction, Revised Regulations, New Cases, Michael B. Gerrard

Faculty Scholarship

In the hopes of easing the housing shortage, on May 26 the New York Legislature passed and Governor Kathy Hochul signed a bill that will exempt many multifamily housing projects from the State Environmental Quality Review Act (SEQRA).

A month before, the New York State Department of Environmental Conservation (DEC) issued regulations on protecting disadvantaged communities, and took steps to require more discussion of climate impacts under SEQRA.

Environmental Repair In The Energy Transition, Martin Lockman

Faculty Publications

For nearly a century, American laws have required mines, oil and gas companies, and other potentially hazardous industries to restore land affected by their activities to a safe condition when they are done with it. These laws represent a grand bargain—they allow operators to make profitable but damaging use of land today in exchange for the promise of expensive remediation tomorrow. However, this bargain has proven hard to enforce. Dozens of “zombie” mines scar mountains in Kentucky. Unrecorded “orphaned” wells poison groundwater in Texas. Over the past century, these laws have become the center of a legal arms race. Fossil …

Leveraging Citizen Science To Advance Environmental Justice In Climate-Vulnerable Communities Post-Loper Bright, Lauren Valli

Seattle Journal of Technology, Environmental, & Innovation Law

The Supreme Court’s 2024 decision in Loper Bright Enterprises v.

Raimondo removed the judicial obligation to defer to the Environmental

Protection Agency’s statutory interpretations, overturning forty years of

Chevron v. NRDC jurisprudence. Now, generalist judges must

independently evaluate complex scientific data when determining

statutory meaning, creating the risk that well-resourced industry parties

will use their litigation advantages to secure pollution-permissive statutory

interpretations. Without deference to EPA’s technical understanding and

public welfare considerations, environmental litigation outcomes

increasingly depend on which party can most persuasively present

environmental data in court. This interpretation shift widens the

environmental enforcement gap and disproportionately harms historically …

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.

Antitrust & The Immoral Energy Economy, Kristen Van De Biezendos

Faculty Scholarship

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But these rationales reflect a misunderstanding of the purpose of public utility law and its preference …

From Property To Personhood: Reimagining Nature's Place In The Legal Order, Lan Cao

William & Mary Environmental Law and Policy Review

This Article explores the emerging rights of nature movement as a radical departure from traditional environmental approaches, grounded in a “new consciousness” that challenges the anthropocentric world-view. The Article sets the stage for a defense of the rights of nature by providing a comprehensive critique of the current model of economic development, primarily focused on GDP, which has proven detrimental to environmental health by neglecting broader values; the Article also highlights alternative measures adopted by entities like the UN and EU that incorporate factors like happiness. Rights of nature builds upon that foundation for a broader understanding of development and …

Clihhr And Other Institutions Publish Report "Resistance: Mura Struggle Against Canadian Potash Mining In Brazil's Amazon", Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

The Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), together with university legal clinics in Brazil, Canada, and the United States, published a report examining the impacts of a proposed Canadian potash mining project in the Brazilian Amazon and its potential risks to Indigenous communities and the environment.

Marine Environmental Protection : An Investigation Into Existing Global Laws Addressing Marine Plastic Pollution, Maryland De Castro

World Maritime University Dissertations

No abstract provided.

Corrected Amicus Brief Filed By Amici Curiae Law Professors In 25-11612 & 25-11821, William Snape, Delicianna Winders, Patrick Parenteau, Christopher Courchesne, Hope Babcock, Holly Doremus, Paul Boudreaux, Oliver A. Houck, Zygmunt J.B. Plater, Michelle Benedict Nowlin, Daniel Rohlf

Amicus Briefs & Court Filings

STATEMENT OF THE ISSUES: Whether the district court's injunction requiring FDEP to cease Endangered Species Act-violating conduct, obtain an incidental take permit before it continues with the conduct, and implement reasonable protective measures violates principles of cooperative federalism, the Tenth Amendment, or the anti-commandeering doctrine.

A Lockean Theory Of Coastal Climate Adaptation, Lingxi Chenyang

Ocean and Coastal Law Journal

What rights do coastal residents have as the seas swallow their homes and livelihoods while the government fails to act? Many legal and policy reforms have been proposed to help people better respond to climate-induced coastal erosion. Little has been said about the underlying theories of climate governance. This Symposium Article identifies three theories of climate adaptation in the context of disappearing coastlines: scientific realism; economic realism; and liberal rights. According to scientific realism and economic realism, the key obstacle to effective climate adaptation is an uninformed government facing a scientifically and economically complex climate future. To the extent that …

Annual Review Of Seqra Cases And Developments, Michael B. Gerrard

Faculty Scholarship

The New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024.

Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice.

A constant theme is the tension between thoroughly studying important project impacts and involving …

The Procedural Architecture Of Climate Justice: Comparative Lessons From Regional Human Rights Courts, Indira Boutier

National Law School Journal

Climate change, once narrated through scientific data and economic costs, is now unavoidably framed as a question of rights and justice. This article examines how litigation before the African, European, and Inter-American human rights courts makes the procedural dimensions of climate justice visible. Procedural justice here is understood capaciously and includes not only rules of access, standing, and evidence, but also the recognition of corporations as duty bearers in transnational accountability regimes. A comparison of the three regions shows how colonial legacies, institutional architectures, and political economies shape the channels through which communities can contest climate harm. Litigation emerges less …

Improving Distributional Analysis In Regulatory Evaluation: An Assessment Of The 2023 Circular A-4, W. Kip Viscusi, A. Fraas, John D. Graham, Kerry Krutilla, Randall Lutter, Jason F. Shogren

Vanderbilt Law School Faculty Publications

The November 2023 revision to OMB Circular A-4 expands upon past guidance on distributional assessment in regulatory impact analysis and adds new options for conducting it, such as the use of distributional weights based on the marginal utility of income. This note explores the implications of key changes suggested in the 2023 guidelines and addresses modeling and data challenges that could yield recommendations for future revisions. We suggest that progress in improving distributional assessment in regulatory impact analysis is most likely if federal agencies collaborate with the National Science Foundation to produce model distributional analyses for different types of regulations.

Analysis Of Environmental Law Scholarship 2023-2024, Michael P. Vandenbergh, Chloe C. Allen, Linda K. Breggin, Sydney C. Schoonover

Vanderbilt Law School Faculty Publications

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of some of the most creative and feasible environmental law and policy proposals from the legal academic literature each year. The articles that are considered include all environmental law articles published in select law journals during the previous academic year. The law journal articles that are republished and discussed are selected by Vanderbilt University Law School students with input from their course instructors and an …

Information For Environmental Governance: The Value Of State Of The Environmental Reports In A Polarized Era, Michael Vandenbergh, M. Caballero, Ethan I. Thorpe

Vanderbilt Law School Faculty Publications

The increasingly dysfunctional federal democratic process poses chal- lenges to effective, consistent responses to the most important environmental risks. Information about the state of the environment and the performance of environmental protection measures can play a surprisingly important role by providing the information necessary for the public and decision-makers to resist disinformation efforts and prioritize the responses to these threats. Until 1997 the White House Council on Environmental Quality (CEQ) produced annual State of the Environment (SOE) reports as required by Section 201 of the National Environmental Policy Act of 1969. In response to paperwork reduc- tion legislation adopted in …

Antitrust & The Immoral Energy Economy, Kristen Van De Biezendos

Faculty Scholarship

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But both rationales reflect a misunderstanding of the purpose of public utility law and its preference …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

Environmental Law In Trump’S Second Term, Michael B. Gerrard

Faculty Scholarship

Donald Trump’s victory in the Nov. 5, 2024 election and Republican control of both the Senate and the House (if that happens) will mean a reversal of much of the environmental progress under the Biden administration, just as the 2016 election reversed large parts of the Obama environmental legacy. However, rapid advances in the technology and economics of clean energy have created a momentum that can be slowed but not stopped. States can adopt their own stronger standards despite what happens in Washington, with a few exceptions, and can use their procurement power and their pension funds’ investment clout to …

Addressing Energy Insecurity Upstream: Electric Utility Ratemaking And Rate Design As Levers For Change, Emma Shumway, Diana HernáNdez, QëNdresa Krasniqi, Vivek Shastry, Abigail Austin, Michael B. Gerrard

Faculty Scholarship

Millions of Americans are impacted by energy insecurity each year, in part due to unaffordable and inequitable electricity rates. The electric ratemaking process presents opportunities to confront issues of affordability and equity or to instead entrench traditional approaches. State legislatures, public utility commissions (PUCs), and advocates all play vital roles in making the former a reality. Historically, ratemaking has been criticized as an insular and highly technical process that caters to utilities rather than customers. But states like California and New York are making strides by broadening PUC legal authority to include explicit consideration of equity issues, adjusting incentives and …

Living The Good Life In The Anthropocene, Kevin J. Lynch, Karrigan Börk, Karen Bradshaw, Rebecca Bratspies, Bruce Carpenter, Cinnamon Carlarne, Robin Kundis Craig, Sarah Fox, Josh Galperin, Francis Hicks, Keith Hirokawa, Ruhan S. Nagra, Michele Okoh, Jessica Owley, Amber Polk, Melissa Powers, Shannon Roesler, J .B . Ruhl, Danielle Stokes, Anastasia Telesetsky

Sturm College of Law: Faculty Scholarship

The Stockholm Resilience Centre has concluded that the number of "planetary boundaries" we are crossing has increased from three in 2009, when the Centre's researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between "safe" and "just" planetary boundaries raises questions regarding how to conceptualize the "good life." In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the "good" as well as the various elements necessary to …

Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo

Georgetown Law Faculty Publications and Other Works

The climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal …

Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto

UMKC Law Review

Groundwater serves as a vital, limited resource for people all over the world. The United States Geological Survey reports that about 140 million people in the United States rely on groundwater for drinking water, of those, almost 43 million people rely on groundwater from domestic (or private, non-public supply) wells. In rural areas, groundwater is often the only available source of drinking water, making protection of groundwater quality in these regions a paramount concern.

Mirroring the various state regulatory approaches to groundwater management and protection, much of the recent media coverage of groundwater in the West focuses on water allocation …

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

Natural Resources In The Arctic: The Equal Distribution Of Uneven Resrouces, Ganeswar Matcha, Sudarsanan Sivakumar

Sustainable Development Law & Policy

This paper analyses the governance machine in place at the Arctic and examines the application of the principles of “common heritage of mankind” at the Arctic. This paper also offers some tentative propositions aimed at protecting Out Bound investment rights and how the World Trade Organization or other countries, like the U.S., can intercede in the Arctic investment sphere and attempt to regulate along with the United Nations Convention for the Law of the Sea.

Incentivizing Sustainability In American Enterprise: Lessons From Finnish Model, Vasa T. Dunham

Sustainable Development Law & Policy

The disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on …

Editor's Note, Shade Streeter, Reagan Ferris

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Sabin Center For Climate Change Law Annual Report 2023, Sabin Center For Climate Change Law

Sabin Center for Climate Change Law

This year the Sabin Center for Climate Change introduces its first annual report, which highlights and synthesizes our cutting-edge research and innovative engagements in 2023.

Seeding A Movement: Indigenous Food Sovereignty, Mariaelena Huambachano

University of Miami Law Review

For many Indigenous peoples, well-being is bound up with and inseparable from the natural world. But since colonialism, Indigenous traditions and access to traditional foods or foodways have been disrupted, imperiling their health and well-being. In this Article, I discuss the role of Indigenous cosmovision/worldview and Indigenous Food Sovereignty in achieving environmental justice. Specifically, in this Article, I discuss that despite, or perhaps because of, efforts to deny Indigenous peoples’ access to healthy and culturally appropriate foods, Indigenous Food Sovereignty took a rise of preciousness in informing natural regenerative food systems, and ultimately, “holistic/collective well-being.”