Law Commons^™

Invasive Species And Climate Change, Invasive Species Advisory Committee

National Invasive Species Council

ISSUE

Climate change interacts with and can often amplify the negative impacts of invasive species. These interactions are not fully appreciated or understood. They can result in threats to critical ecosystem functions on which our food system and other essential provisions and services depend as well as increase threats to human health. The Invasive Species Advisory Committee to the National Invasive Species Council recognizes the Administration’s commitment to dealing proactively with global climate change. However, unless we recognize and act on the impact of climate change and its interaction with ecosystems and invasive species, we will fall further behind in …

New Energy Geopolitics?: China, Renewable Energy, And The "Greentech Race", Joel B. Eisen

Chicago-Kent Law Review

Commentators believe that programs in China promoting development of new renewable energy capacity have produced astonishing achievements in a short period of time. Evoking the "space race" between the United States and the U.S.S.R. after the launch of the Sputnik satellite in 1957, observers contend that the United States and China are in a "greentech race" to secure international leadership in the development and deployment of renewable energy. As U.S. Energy Secretary Chu has put it, many believe this is a modern "Sputnik moment." This Article finds that China's programs and initiatives are indeed leading to considerable success, but, using …

Agriculture's Fate Under Climate Change: Economic And Environmental Imperatives For Action, John N. Moore, Van Bruggen

Chicago-Kent Law Review

Farming, ranching, and other agricultural activities are in a relatively unique position amongst all human-caused sources of global warming. Unlike fossil fueled power plants and vehicles, for example, agriculture will suffer direct economic losses from the impacts of global warming on its products, such as through reduced crop yields. Also unlike other causes of global warming, agriculture can both mitigate global warming and increase revenue through a range of different practices, such as carbon sequestration and investments in carbon-friendly renewable energy. This article explains how global warming affects agriculture, especially in the Midwest and Great Plains, and how agriculture contributes …

The Legal-Political Barriers To Ramping Up To Hydro, Dan Tarlock

Chicago-Kent Law Review

Hydroelectric energy is the oldest major source of non-carbon, renewable energy and is the only conventional renewable resource in the current energy mix. Increased hydro capacity would seem to be a key element of any United States energy policy designed to promote the greater use of renewable resources. However, for several decades hydro has been perceived as a mature, fully developed technology. This article argues that any effort to stimulate substantial new hydro capacity will face a series of environmental legal and policy constraints. Efforts to adapt to global climate change will further complicate efforts to increase hydro electric generation. …

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate …

Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen

University of Michigan Journal of Law Reform

Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency …

Kyoto's So-Called "Fatal Flaws": A Potential Springboard For Domestic Greenhouse Gas Regulation, Denee A. Diluigi

Golden Gate University Law Review

This Comment discusses the United States' capability to initiate a new domestic program to confront climate change in the wake of the current political stance on environmental issues. Additionally, this Comment proposes a program premised on market-based incentives that will serve as a compromise between industry and the environment to ensure that the United States takes affirmative action to reduce and limit domestic GHG emissions. Section II of this comment discusses the various factors that contribute to the scientific phenomenon of global warming. It also addresses the scientific community's divergent positions with respect to the causes of global warming and …

Ratification Resisted: Understanding America's Response To The Convention On Biological Diversity, 1989-2002, Robert F. Blomquist

Golden Gate University Law Review

This Article undertakes a broad, synoptic evaluation of America's complex response to the Convention. It paints an intricate picture of American legal and policy initiatives, on multiple levels, for enhanced domestic and international protection of biodiversity juxtaposed with concomitant legal and policy footdragging. Part I limns, in bold lines, the basic structure of the matter: initially it provides a brief overview of the genesis and contents of the CBD; then,' it sketches a chronological synopsis of America's formal and informal response to the CBD. Part II adds some detailed brushwork: it attempts to deepen understanding of the various tensions, concerns, …

U.S. Climate Change Policy Under G.W. Bush, Armin Rosencranz

Golden Gate University Law Review

In this short article, I review the development of U.S. climate change and energy policy under President George W. Bush, describe various executive branch initiatives to address the issue of global climate change, and assess the prospects for progressive U.S. action to address climate change over the remainder of the Bush Presidency. This is a short article because the repudiation of Kyoto speaks for itself and the domestic initiatives that could arguably influence greenhouse gas abatement seem extraordinarily modest in scope and cost.

U.S. Climate Change Policy Under President Clinton: A Look Back, Amy Royden

Golden Gate University Law Review

This article describes the evolution of the Clinton Administration's policy on climate change and point to factors that influenced its deliberations. It focuses on the U.S. positions in international negotiations, international reaction to these positions, and domestic policies and politics that influenced these positions. More detailed analyses of certain issues - such as full descriptions of all the climate change-related activities undertaken by the federal government, both abroad and at home - are beyond the scope of this article.

Consensus Among Many Voices: Articulating The European Union's Position On Climate Change, Nuno S. Lacasta, Suraje Dessai, Eva Powroslo

Golden Gate University Law Review

This article attempts to provide an overview of key policy elements of the European Union's climate policy since the adoption of the UNFCCC in 1992. Section II discusses the main features of the EU as an actor vis-a-vis its Member States and the international community at large. Section III identifies the key actors at play in the EU context; Section IV analyzes the EU's track record on domestic policies and measures. Section V, in turn, debates selected key topics in the international climate change negotiations from a EU perspective. Finally, section VI debates the prospects of continued international EU leadership …

Essay: The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

James Salzman

Over the last several years, so-called “carbon markets” have emerged around the world. These markets trade different types of greenhouse gas credits. In this essay, we take a close look at an unexpected and unprecedented development – premium “green” currencies have emerged alongside and even displaced standard compliance currencies. Past experiences with other environmental compliance markets, such as the sulfur dioxide and wetlands mitigation markets, suggest the exact opposite should be occurring. Indeed, buyers in such markets should only be interested in buying compliance, not in the underlying environmental integrity of the compliance unit. In carbon markets, however, higher quality …

Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

Climate Change And The Public Law Model Of Torts: Reinvigorating Judicial Restraint Doctrines, Donald G. Gifford

Donald G Gifford

The Article traces the origins of climate change litigation back to earlier forms of “public interest tort litigation,” including government actions against the manufacturers of cigarettes, handguns and lead pigment. Public interest tort litigation is different in kind from traditional tort actions, even asbestos and other mass products litigation. These new lawsuits address society-wide or even worldwide problems and seek judicially imposed regulatory regimes. As such, they more closely resemble civil rights litigation and what Abram Chayes deemed “the public law model” than they do earlier tort actions. I conclude that the public law model of tort litigation is the …

International Greenhouse Gas Offsets Under The Clean Air Act, Nathan D. Richardson

Faculty Publications

Offsets, and in particular international offsets, have been advanced as an important tool in climate policy, capable of significantly reducing the costs of emissions reductions. As attention turns to the existing CAA as a potential vehicle for general reduction of GHG emissions, an important question is whether regulation under the statute is compatible with international offsets. Certain regulatory programs under the CAA are likely candidates for GHG regulation, but many of them are legally incompatible with international offsets. Those programs that might permit use of international offsets have other problems that make them unpopular choices for GHG regulation. To the …

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 …

Greenhouse Gas Regulation And Border Tax Adjustments: The Carrot And The Stick, M. Benjamin Eichenberg

Golden Gate University Environmental Law Journal

Global climate change due to the emission of anthropogenic, or manmade, greenhouse gases (GHGs) has the most widely dispersed costs of any transboundary environmental problem that the international community has yet faced. In other words, it is a global public problem and thus provides few incentives for unilateral or individual mitigation. This makes finding solutions difficult because international coalitions must face the problem of free-riders who benefit from reduced GHG concentrations at zero cost—those who make the economically rational decision to let others reduce atmospheric GHG concentrations while they continue to build GHG-intensive economies. Three of the primary complaints raised …

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 …

India’S Integrated Energy Policy: A Source Of Economic Nirvana Or Environmental Disaster?, Deepa Badrinarayana

Deepa Badrinarayana

India’s rapidly growing economy naturally demands increasing energy needs from the industrial scale down to the personal. Mindful of potential negative impacts of economic development, India is making efforts to encourage growth while preserving and protecting the environment and human rights. India’s Integrated Energy Policy sets out the roadmap for how the country plans to achieve the balance among development, environmental protection, citizens’ rights, energy security, and a host of other priorities and concerns. Though ambitious and broad in scope, the Policy may prove inadequate in mitigating environmental impacts of development, and thus inadequate in balancing India’s needs, particularly in …

Marine Bioinvasions And Climate Change, James T. Carlton, Sandra C. Lindstrom, Celia M. Smith, Jennifer E. Smith

National Invasive Species Council

BACKGROUND

Invasive species are second only to habitat destruction as the greatest cause of species endangerment and global biodiversity loss. Invasive species can cause severe and permanent damage to the ecosystems they invade. Consequences of invasion include competition with or predation upon native species, hybridization, carrying or supporting harmful pathogens and parasites that may affect wildlife and human health, disturbing ecosystem function through alteration of food webs and nutrient recycling rates, acting as ecosystem engineers and altering habitat structure, and degradation of the aesthetic quality of our natural resources. In many cases we may not fully know the native animals …

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.

Slides: Livestock Grazing On The Public Lands, Joe Feller

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Joe Feller, Professor of Law, Arizona State University Law School; Visiting Professor, University of Colorado Law School

33 slides

Some Reflections On Fish And Wildlife Resources (Report Chapter Nine), Todd True

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

4 pages.

Includes Proposed Revisions to the National Objectives, Principles and Standards for Water and Related Resources Implementation Studies

Slides: America's Redrock Wilderness, Scott Groene

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Scott Groene, Executive Director, Southern Utah Wilderness Alliance (Moab, UT)

23 slides

Agenda: The Past, Present, And Future Of Our Public Lands: Celebrating The 40th Anniversary Of The Public Land Law Review Commission's Report, One Third Of The Nation's Land, University Of Colorado Boulder. Natural Resources Law Center

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Sponsors: US Dept. of the Interior, Bureau of Land Management; Western Resource Advocates; The Wilderness Society; National Wildlife Federation; Rocky Mountain Mineral Law Foundation Grants Program, Red Lodge Clearinghouse; United States Forest Service, Rocky Mountain Research Station.

Conference moderators, panelists and speakers included University of Colorado Law School professors William Boyd, David H. Getches, Sarah Krakoff, Mark Squillace and Charles F. Wilkinson.

In 1964 Congress established the Public Land Law Review Commission to review the public land laws of the United States and to determine whether revisions were necessary. The Commission was comprised of six members appointed by the President, …

Slides: Celebrating Flpma: Land Use Planning At The Blm, Marcilynn Burke

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Marcilynn Burke, BLM Deputy Director - Programs and Policy, U.S. Dept. of the Interior, (Washington, D.C.)

30 slides

Local Surface Water Policy Under Conditions Of Climate Change, Elizabeth Brabec, Elisabeth Hamin, Chingwen Cheng

Elizabeth Brabec

Climate change means two things for local stormwater managers – that storm events will become more severe, and rainfall will, in many instances, become more erratic, causing enhanced periods of drought and flood. Two approaches are needed to deal with the eventualities: mitigation and adaptation.

While urbanization increases stormwater runoff and decreases the lag time of stormwater discharge, there is also a resulting lack of infiltration and reduction in evapotranspiration (Brunke and Gonser 1997). Stormwater detention, retention and infiltration have attempted to compensate, resulting in the concentrated point location infiltration of stormwater, which replenishes groundwater and baseflow. Equally important to …

Global Warming Advocacy Science: A Cross Examination, Jason S. Johnston

All Faculty Scholarship

Legal scholarship has come to accept as true the various pronouncements of the Intergovernmental Panel on Climate Change (IPCC) and other scientists who have been active in the movement for greenhouse gas (ghg) emission reductions to combat global warming. The only criticism that legal scholars have had of the story told by this group of activist scientists – what may be called the climate establishment – is that it is too conservative in not paying enough attention to possible catastrophic harm from potentially very high temperature increases. This paper departs from such faith in the climate establishment by comparing the …

The Implications Of Climate Change Litigation For International Environmental Law-Making, David B. Hunter

David B. Hunter

Climate advocates are increasingly raising specific climate change concerns before domestic courts, human rights tribunals, international commissions and other national and international decisionmaking bodies. Win or lose, these litigation strategies are significantly changing and enhancing the public dialogue around climate change. This article discusses the awareness-building impacts of climate litigation as well as related impacts such strategies may have on the development of climate law and policy. The article argues that litigation's focus on specific victims facing immediate threats from climate change has increased the political will to address climate change both internationally and nationally. It has also shifted the …

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 …