Law Commons^™

Fischman Elected To Defenders Of Wildlife Board, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

An environmental law professor at the Indiana University Maurer School of Law has been elected to the board of directors of a national conservation organization dedicated to the protection and restoration of imperiled species and their habitats in North America.

Rob Fischman, the George P. Smith, II Distinguished Professor of Law and an adjunct professor at the O’Neill School of Public and Environmental Affairs, was elected to the Defenders of Wildlife board on Tuesday, May 21.

His teaching, research and service align closely with the organization’s conservation vision of a future where diverse wildlife populations in North America are secure …

Legal, Policy, And Environmental Scholars Discuss Global Food Systems At Indiana Law Symposium, James Owsley Boyd

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The Indiana University Maurer School of Law and its Indiana Journal of Global Legal Studies are hosting scholars from around the country Friday and Saturday (Jan. 19-20) for an interdisciplinary discussion on one of the world’s most prevalent problems—food insecurity.

Data from the World Bank estimate more than 780 million people around the world suffered from chronic hunger in 2022. As climate change affects agricultural production and water accessibility, the problem could worsen in coming years.

“A Fragile Framework: How Global Food Systems Intersect with the International Legal Order, the Environment, and the World’s Populations” will bring together legal, policy, …

Corporate Climate Litigation And Environmental Justice: How Green Amendments Can Be Used To Advance Accountability And Equity, Noah Hines

Indiana Journal of Law and Social Equality

The term “Green Amendment” was first coined by author Maya van Rossum in her 2017 book The Green Amendment: Securing Our Right to a Healthy Environment, in which she argues that modern environmental protection laws are fundamentally failing the most vulnerable people in society and proposes the creation of new constitutional rights as a solution. The provisions van Rossum argues ought to be added to state constitutions as “Green Amendments” are also sometimes called “Environmental Rights Amendments,” and generally enumerate the right of all citizens to a clean or healthy environment. Green Amendments currently exist in Pennsylvania, Montana, Illinois, Hawaii, …

Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd

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Environmental champions and conservationists will mark the 50th anniversary of the Endangered Species Act later this month. That is the law requiring federal agencies to use all methods necessary to prevent extinctions and ensure that federal actions not jeopardize the continued existence of species on the brink of disappearing from the face of the Earth.

In the leadup to the December 27th anniversary, several publications have begun examining the Act’s history and impact over five decades.

Science, the world’s third-most influential scholarly journal based on Google Scholar citations, invited experts from around the country to look ahead as well …

Environmental And Natural Resources Law Symposium: Assessing The August 2023 Amendments To The Waters Of The United States Rule In The Wake Of Sackett V. Epa, Ryan Day

Maurer Law Events

In 1982, the Army Corps of Engineers adopted the EPA definition of “waters of the United States.” This brought an end to a smoldering interagency conflict over the definitions under the Clean Water Act. This relationship was formalized with a 1989 Memorandum of Agreement between the EPA and the Corps; the Corps has largely ceded definitional decision making to the EPA, which develops guidance and supporting materials, while the Corps is responsible for most case-specific jurisdictional determinations under Section 404 of the Clean Water Act. In 2023, the agencies embarked on their latest round of rulemaking. In January, the Biden …

Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd

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The Indiana University Maurer and McKinney Schools of Law jointly will convene leading scholars and practitioners to discuss the implications of the 2023 United States Supreme Court case of Sackett v. EPA. The event, “Sackett v. EPA: What the Supreme Court’s Decision Means for Regulation and Wetlands Conservation,” will take place November 10 in the Wynne Courtroom and Steve Tuchman and Reed Bobrick Atrium at IU McKinney in Indianapolis.

Committee Chaired By Maurer Professor To Complete Its Analytical Review Of Hanford Nuclear Reservation Waste Options, James Owsley Boyd

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A committee chaired by an Indiana University Maurer School of Law professor will complete next week its five-year charge to review the analysis performed by a team investigating how best to treat and dispose of low-level waste at the Hanford Nuclear Reservation in Washington.

John Strait Applegate, the James L. Calamaras Professor of Law, has served as chair of the 13-member National Academies of Sciences, Engineering, and Medicine (NASEM) committee since 2018. The committee will conclude its work with a public meeting in Richland, Washington, on June 6. Applegate had previously chaired a prior review of the waste disposal issue …

Fischman Serves As Witness In Endangered Species Act Hearing, James Owsley Boyd

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An environmental law expert from the Indiana University Maurer School of Law served as an expert witness today (April 18) as part of a congressional hearing on the Endangered Species Act (ESA). Professor Rob Fischman participated in one of three panels convened by the U.S. House Natural Resources Subcommittee on Water, Wildlife, and Fisheries as lawmakers consider four Congressional Review Act (CRA) resolutions challenging the implementation of certain aspects of the ESA.

Climate Security Insights From The Covid-19 Response, Mark Nevitt

Indiana Law Journal

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

Kolender’S Paper Earns Ohio Environmental Writing Award, James Owsley Boyd

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When a Norfolk Southern train derailed in East Palestine, Ohio, spilling hundreds of thousands of gallons of toxic chemicals into the soil, water, and air, Zoe Kolender knew the cleanup efforts would be an arduous task. But she also knew something most people don’t—that environmental disasters like the Norfolk Southern derailment are treated differently depending on the areas in which they occur.

Kolender, a 3L at the Indiana University Maurer School of Law, had been studying the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) while developing a paper for Professor India Thusi’s seminar in Critical Race Theory. CERCLA …

Solving Contemporary Issues In Conservation Through A Market-Based International Park System, Ian Finley

Indiana Journal of Global Legal Studies

In 2016, the United States National Park Service celebrated its centennial, which caused a flurry of calls for reflection and recommendations for improvements for national parks.1 People began urging the national parks to reaffirm their commitment to conservation and recreation, along with encouraging more research.2 It seemed to be a natural time to revisit the original “justification for both Yosemite and Yellowstone park [that] was the protection of unique scenery in the national interest.”3 That being said, in light of developments in national parks over the last one hundred years, it is important to challenge or at least qualify that …

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

Domestic Emergency Pretexts, Amy L. Stein

Indiana Law Journal

Whereas emergencies used to be the exception to the rule, they now seem to be the norm. Wildfires, hurricanes, flooding, and contagious diseases dominate our daily lives. Although these are not the traditional types of military emergencies of our past, these non-wartime emergencies can trigger some of the same emergency powers. And with their use comes some of the same concerns about abuses of such emergency powers. Much ink has been spilled analyzing the tradeoffs associated with necessary emergency powers and frequent abuses in the context of foreign threats—resulting in reduced privacy, civil liberties, and freedoms.

This Article is not …

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …

Deitche Earns Karen Hastie Williams Fellowship, James Owsley Boyd

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La’Kendra Deitche, a 2L from Fort Wayne, Indiana, has been selected as one of eight—and the only one from outside the Washington, D.C. area—Karen Hastie Williams Leadership Fellows, a prestigious fellowship awarded by the D.C. Bar.

Deitche will complete a leadership orientation session followed by a six-month fellowship, from January through June 2023, on the D.C. Bar’s Environment, Energy, and Natural Resources community. The D.C. Bar offers 20 communities that help members develop expertise in specific practice areas.

Law Article By Prof. Rob Fischman Selected For Land Use & Environmental Law Review, James Owsley Boyd

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No abstract provided.

Hidden In Plain Sight: The Dangers Of Environmental Protections Waivers, Olivia Stevens

Indiana Law Journal

When enacting both statutory and regulatory environmental protections, Congress and various agencies have recognized that emergency situations could arise that would require flexibility in the application and enforcement of those protections. Incorporating waivers into such protections provides that flexibility. However, the current state of waivers leaves them vulnerable to abuse. In this Note, I explore how a lack of procedural and substantive safeguards allows the inappropriate use of waivers to further administrative agendas in a way that poses serious risks to both environmental and human health. I then suggest remedial measures available to Congress that would strengthen environmental protections while …

The Ends And The Means: Indigenous Sovereignty, Climate-Related Legal Actions, And Frameworks Of Justice, Connor Marcum

Indiana Journal of Global Legal Studies

Philosophy professor Timothy Morton uses climate change as his foremost example of what he calls a hyperobject: an object that occupies both more physical space and more time than humans can usefully comprehend. For example, one can understand local meteorological occurrences in isolation without necessarily understanding that a given storm was more severe than it should have been because an overall increase in global temperatures makes for a more aggressive, active hydrological cycle. Environmental organizations focused on raising awareness understand this. Public campaigns to wed the nebulous idea of climate change to specific, concrete images are incredibly memorable: think of …

What Will The “Foreseeable Future” Bring For Climate- Imperiled Species?, Olivia Bauer

Indiana Law Journal

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the …

Promoting Regulatory Prediction, Jonathan S. Masur

Indiana Law Journal

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

"On The Eve Of Destruction": Courts Confronting The Climate Emergency, Mary Christina Wood

Indiana Law Journal

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no …

Four Perspectives On A Sustainable Future In Nosara, Costa Rica, Greg Munno, Álvaro Salas Castro, Tina Nabatchi, Christian M. Freitag

Articles by Maurer Faculty

The town of Nosara on Costa Rica’s Nicoya peninsula is home to a vibrant community of diverse residents and is adjacent to an important turtle nesting site. However, tensions between lifelong residents, more recent transplants, visitors, and developers have increased as more of the world discovers this once-isolated haven. Climate change, income inequality, and alienation from a distant government apparatus have further complicated effective land-use planning and fractured social cohesion. Using a mixed-method approach of in-depth interviews (n = 67), Q methodology (n = 79), and public deliberation (n = 88), we explored residents’ priorities for the future of their …

Conservation Law Center Receives Grants For Internships, James Owsley Boyd

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No abstract provided.

Reconsidering Nepa, Brigham Daniels, Andrew P. Follett, James Salzman

Indiana Law Journal

The National Environmental Policy Act (NEPA) ushered in the modern era of environmental law. Thanks to its environmental impact statement (EIS) provision, it remains, by far, the most litigated environmental statute. Many administrations have sought to weaken the law. The Trump administration, for example, put into place regulations that strictly limit the EIS process, which the Biden administration seems poised to roll back. For the most part, however, NEPA has shown remarkable staying power and resilience since its passage just over fifty years ago. As a result, its legislative history remains relevant. But the accepted history of NEPA is deeply …

Goldilocks Deference, Daniel H. Cole, Elizabeth Baldwin, Katie Meehan

Articles by Maurer Faculty

Over the years, courts reviewing rules and decisions of federal administrative agencies have given those agencies greater or narrower latitude in interpreting enabling legislation, ranging from the “hard look” doctrine to various levels of deference under case names such as Chevron, Auer, and Skidmore. This article examines a distinct type of judicial deference that might arise only in a special subset of cases where an agency is sued by two different interested parties arguing diametrically opposed positions. For example, the EPA may be sued on a major, substantive rule by the regulated industry arguing that the rule …

Consumer Perceptions Of The Right To Repair, Aaron Perzanowski

Indiana Law Journal

Part I of this Article details the strategies upon which device makers rely to frustrate repair. Part II considers legislative interventions intended to push back on existing barriers to repair, with a particular focus on the set of bills introduced in state legislatures across the United States. Part III describes the results of a survey of more than 800 U.S. consumers, focusing on their expectations of and experiences with the repair of electronic devices. The legal and policy implications of those results are discussed in Part IV.

Esg And Climate Change Blind Spots: Turning The Corner On Sec Disclosure, Cynthia A. Williams, Donna M. Nagy

Articles by Maurer Faculty

This article examines four areas in which the SEC, for more than a decade, resisted reform or impeded shareholders’ access to sought-after environmental, social, and governance (ESG) information. These areas are: (1) the SEC’s refusal to act on several rulemaking petitions submitted during the years 2009 to 2018, which called for expanded ESG disclosure; (2) the SEC’s grudging promulgation of rules concerning social disclosures as required by Congress in the Dodd-Frank Act of 2010; (3) the SEC’s 2020 revisions to SEC Rule 14a-8, which make the submission of shareholder proposals more difficult, thereby thwarting investor efforts to raise ESG concerns; …

Collaborative Governance Under The Endangered Species Act: An Empirical Analysis Of Protective Regulations, Robert L. Fischman, Vicky J. Meretsky, Matthew P. Castelli

Articles by Maurer Faculty

Recent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage the public and advisory groups.

The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts …

Contracts On The Seabed, Christiana Ochoa

Articles by Maurer Faculty

Four million square kilometers of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometers of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters of Papua …

Bursting The Auto Loan Bubble In The Wake Of Covid-19, Pamela Foohey

Articles by Maurer Faculty

Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such …