Law Commons^™

Property Rights On The New Frontier: Climate Change, Natural Resources Development, And Renewable Energy, Alexandra B. Klass

Alexandra B. Klass

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control …

The Invading Waters: Climate Change Dispossession, State Extinction, And International Law, Jared D. Hestetune

Jared D Hestetune

The level of the sea is inevitably rising. Even the conservative estimates of the IPCC portray a dire future for low-lying island nations such as the Republic of Maldives. The future of an inundated state bodes ill for Maldives's continued participation in international relations. This essay analyzes the possibility of the persistence of a state after its territory has been submerged and destroyed, and it comes to the unfortunate conclusion that a submerged state will de facto become extinct in international law. Thus, entire nationalities will disappear, which likely consequence is strong motivation to protect the human right of national …

Finishing The Climate Change Puzzle: A Proposal For The United States National Climate Change Law, Carolyn Aguilar

Carolyn Aguilar

An analysis of the 2009-2010 Congressional climate change bill proposals and its potential impacts on international environmental agreements and its impacts on subnational climate change laws. This article proposes a potential best solution for a new national climate change law.

Hannibal Eclipsed? Envelopment By Public Nuisance, Richard Faulk

Richard Faulk

Only recently, the ancient tort of public nuisance was “down” and in the process of being “counted out” when its expansion was rejected by the highest courts of New Jersey, Rhode Island, Missouri and Ohio. Within the past year, however, it was remarkably resuscitated by federal courts that approved it as a vehicle for redressing climate change and interstate pollution. Without the constraints of geography, public nuisance now “spans the globe” in an enveloping maneuver that threatens to reduce Hannibal’s legendary victory at Cannae to a mere neighborhood brawl. Unless the tort’s scope is narrowed by reviewing courts, its pincer …

(If) Things Fall Apart: Searching For Optimal Regulatory Solutions To Combating Climate Change Under Title I Of The Existing Clean Air Act If Congressional Action Fails, Timothy J. Mullins, M. Rhead Enion

Timothy J Mullins

The prospects for a Congressional climate change bill have lessened since the Copenhagen summit. If the legislative process fails, EPA may have a number of options available under the existing Clean Air Act to create a cap-and-trade program that could, in many ways, mimic a Congressionally-created regime. Under Title I in particular, EPA could have this type of authority under the NAAQS program (§§ 107–110) or the New Source Performance Standards and existing source regulation (§ 111(b) and (d)). This Article analyzes the potential of both of these sections and their associated regulatory programs to create a large-scale cap-and-trade program …

Eyes On The Climate Prize: Rewarding Energy Innovation To Achieve Climate Stabilization, Jonathan H. Adler

Jonathan H Adler

Stabilizing atmospheric concentrations of greenhouse gases at double their pre-industrial levels (or lower) will require emission reductions far in excess of what can be achieved with current or projected levels of technology at a politically acceptable cost. Substantial technological innovation is required if the nations of the world are to come anywhere close to proposed emission reduction targets. Neither traditional federal support for research and development of new technologies nor traditional command-and-control regulations are likely to spur sufficient innovation. Technology inducement prizes, on the other hand, have the potential to incentivize and accelerate the rate of technological innovation in the …

The Theater Of Climate Change, Richard Faulk

Richard Faulk

President Obama's unilateralism promises nothing to avert planetary disasters, and since the fabled “green economy” is, at least presently, an elusive myth, one can only conclude that there must be another agenda: wealth redistribution for its own sake. If any other result is intended, it has not been credibly articulated. Unless a realistic, reliable and transparent program for replacing our wealth is created, siphoning current resources will diminish and ultimately extinguish American prosperity.

Not Only Innovation But Also Collaboration, Funding, Goodwill And Commitment: Which Role For Patent Laws In Postcopenhagen Climate Change Action, Estelle Derclaye

Estelle Derclaye

Patent laws can do their bit to help reduce our greenhouse gas emissions. In 2009, accelerated grant procedures and reduction of fees have been put in place by among others the UK and US patent offices. Private initiatives such as the eco-patent commons to licence technology free of charge have been taken. But greening patent law is only a small part of the solution. However well-intentioned all these initiatives are, for several reasons, they may not be sufficient or even at all used. More than intellectual property-related solutions, what will be needed is non-intellectual property-related solutions such as using technology …

The Winter Of Our Discontent: The Impact Of Copenhagen's Failure, Richard Faulk

Richard Faulk

Far from treating climate change as a “universal” problem that transcends national boundaries, the Copenhagen conference devolved into a frustrating exercise in nationalism, where individual nations, or groups of nations, tried to satisfy their particular needs, as opposed to redressing global climate problems. Now that Copenhagen’s uproar has faded, it is appropriate to evaluate the consequences of the conference’s failure for American industry.

Anatomy Of Industry Resistance To Climate Change: A Familiar Litany, Robert L. Glicksman

Robert L. Glicksman

The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.

This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch …

Framing Water Policy In A Carbon Affected And Carbon Constrained Environment, Noah D. Hall, Robert H. Abrams

Noah D Hall

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water …

Individualism Submerged: Climate Change And The Perils Of An Engineered Environment, Juliet P. Stumpf, Daniel J. Chepaitis, Andrea Panagakis

Juliet P Stumpf

Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit of adaptive strategies such as large-scale geoengineering projects to reduce solar radiation or ameliorate sea-water inundation. In place of returning greenhouse gas emissions to natural levels, these approaches put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. In other words, they privilege mechanisms that increase each individual=s dependence on a collective decisionmaker and decrease the individual=s capacity to …