Law Commons^™

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

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

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.

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

Amicus Curiae Brief State Of Utah Et. Al. V Walsh Et. Al., Ethan Halman Gonzalez

Honors Theses

In accordance with Rule 29 of the Federal Rules of Appellate Procedure, this amicus curiae is submitted in the defense of Walsh and the Department of Labor in releasing the prudence and loyalty in selecting plan investments and exercising shareholder rights rule in November of 2022. These brief mainly focuses on the arbitrary and capricious standard, the major questions doctrine, and the legal standing the Department of Labor has to issue rules that apply to the Employee Retirement Income Security Act of 1974.

Intersectional Management: An Analysis Of Cooperation And Competition On American Public Lands, Robin M. Rotman, Abigail M. Hunt

Faculty Publications

The United States government holds public lands in trust for the whole of the American people. This article focuses on National Monuments under the Antiquities Act. It argues that the federal government should renew its approach to the management of these lands by incorporating principles of environmental justice and long- term environmental viability. The article begins by examining the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It then reflects on recent litigation and political controversy surrounding Bears Ears National Monument and Grand Staircase–Escalante National Monument, to illustrate how the …

Socio-Economic Considerations Of Living Modified Organisms And Impacts On Trade: Evolution Of Environmental Disputes At The World Trade Organization, Leonardo Munhoz

Dissertations & Theses

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ("LMOs"). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ("SECs") arising from LMOs, as stated in article 26.

However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, …

Hunting In Maine, Elizabeth Tibbetts

Honors College

Hunting remains a common practice for many people in the state of Maine. While the stories and traditions held by hunters differ from person to person and family to family. There are commonalities that aid in building the sense of community between hunters in the state of Maine. This hunting community is strengthened through the sharing of stories and the common traditions shared by many. These communities remain strong even as the Maine landscape and hunting legislation changes over time. Here a number of questions regarding hunting are explored through the lens of one family spanning multiple generations through oral …

The End Externalities Manifesto: Restatement, Loose Ends, And Unfinished Business, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Don Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss.

In their End Environmental Externalities Manifesto ("Manifesto") they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is …

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

Reducing Septic-Reliant Households: How A Comprehensive Legal Scheme Could Improve Water Quality, Environmental, And Human Health, Karlin Foor, Anna Bailey

Virginia Coastal Policy Center

Considering the [...] concerns of septic reliance in Virginia, this paper will present and explicate three issues pertaining to the Maryland Sustainable Growth and Preservation Act (the “Septic Law”). Maryland's Septic Law represents an effort at a statewide legal scheme for approaching the issue of rapid development on septic. It may function as a useful starting point for Virginia to approach the danger that failing septic poses to Virginian citizens and the health of the Chesapeake Bay, a vital contributor to the state economy and cultural heritage. Part II opens with an overview of Maryland’s Septic Law. Part III evaluates …

Enabling A Just Transition: Protecting Human Rights In Renewable Energy Projects: A Briefing For Policymakers, Hansika Agrawal, Laura El-Katiri, Kimathi Muiruri, Sam Szoke-Burke

Columbia Center on Sustainable Investment

This briefing provides guidance to policy- and decision-makers (hereafter, “policymakers”) on the benefits of and strategies for taking a human rights-based approach to renewable energy policy. It highlights the various impacts of utility-scale renewable energy projects on peoples and communities, associated risks for policymakers, and explains how national, regional, and global policies can help mitigate those impacts and risks. The briefing addresses different agents of policy- and decision-making: Host states, where renewable energy projects are proposed or located; Home states where corporations pursuing renewable energy investments, especially investments abroad, are based; Development Finance Institutions (DFIs) financing renewable energy investments, especially …

Climate Services: The Business Of Physical Risk, Madison Condon

Faculty Scholarship

A growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty …

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations, April 20-21, 2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

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

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

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 …

Towards Meaningful Research And Engagement: Indigenous Knowledge Systems And Great Lakes Governance, Deborah Mcgregor, Nicole Latulippe, Rod Whitlow, Kristi Leora Gansworth, Lorrilee Mcgregor, Stephanie Allen

Articles & Book Chapters

For thousands of years, Indigenous peoples governed their relations in the Great Lakes region, guided by distinct political, legal, governance, and knowledge systems. Despite historic and ongoing exclusion of Indigenous peoples from Great Lakes governance in the Canadian context and other assaults on Indigenous sovereignty, authority, jurisdiction and responsibilities, Indigenous peoples have maintained their relationships with the Great Lakes. In recent years, Indigenous knowledge systems (IKS) have made inroads in Great Lakes governance, thanks primarily to First Nation political advocacy. However, it remains a challenge to include Indigenous knowledge and implement approaches that bridge Indigenous and Western ways of knowing. …

Policy Comparison Of Lead Hunting Ammunition Bans And Voluntary Nonlead Programs For California Condors, Robin M. Rotman, John H. Schulz, Samantha Totoni, Sonja A. Wilhelm Stanis, Christine Jie Li, Mark Morgan, Damon M. Hall, Elisabeth B. Webb

Faculty Publications

The endangered California condor (Gymnogyps californianus) is negatively affected by lead poisoning from spent lead‐based hunting ammunition. Because lead poisoning is the primary mortality factor affecting condors, the California Fish and Game Commission banned lead hunting ammunition during 2008 in the southern California condor range followed by a statewide ban implemented in 2019. In contrast, the Arizona Game and Fish Department instituted an outreach and awareness program encouraging voluntary use of nonlead hunting ammunition in the northern portion of the state during 2005 and a similar program was launched in Utah during 2012. The juxtaposition of policy tools provided a …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Commentary: Nature-Based Insetting: A Harmful Distraction From Corporate Decarbonization, Nora Mardirossian, Jack Arnold

Columbia Center on Sustainable Investment

Carbon offsetting is used worldwide on a massive scale, purportedly to mitigate climate change by capturing atmospheric carbon or by increasing or protecting carbon storage. Yet, in recent years, offsetting has been increasingly criticized as a strategy that can harm Indigenous peoples and local communities, exacerbate land inequality, and, paradoxically, worsen the global climate crisis. “Carbon insetting” has emerged as an alternative approach to offsetting that localizes nature-based solutions projects and other greenhouse gas removal activities within company value chains and has been adopted by major global brands such as Nestlé, PepsiCo, and Burberry. This commentary takes a deep dive …

Ghg Accounting Methods In The Aluminum Industry, John Biberman, Perrine Toledano, Rohini Ram Mohan

Columbia Center on Sustainable Investment

Primary aluminum production is one of the world’s most GHG-intensive industries, and also one where GHG accounting methods have become the most fully developed. GHG reporting for the primary aluminum sector has largely consolidated under the International Aluminium Institute’s (IAI) guidance, although Environment Canada (EC) guidance remains active and Chinese aluminum smelters will soon additionally be required to report their emissions under the China National Development and Reform Commission’s (China NDRC) guidelines, meant to support the development of the Chinese emissions trading system. The IAI method largely follows best GHG accounting practices, but aspects of it can be improved, and …

Infrastructure, Jurisdiction, Extractivism: Keywords For Decolonizing Geographies, Shiri Pasternak, Deborah Cowen, Robert Clifford, Tiffany Joseph, Dayna Nadine Scott, Anne Spice, Heidi Kiiwetinepinesiik Stark

Articles & Book Chapters

No abstract provided.

Developing Model Federal Legislation To Advance Safe And Responsible Ocean Carbon Dioxide Removal Research In The United States, Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This model federal legislation aims to advance safe and responsible ocean carbon dioxide removal (CDR) research in U.S. waters. Controlled field trials and other in-ocean research is critical to improve scientific and societal understanding of CDR techniques that could help the U.S. reach its climate goals. However, existing legal frameworks were not designed to regulate ocean CDR and, in some cases, unnecessarily or inappropriately restrict needed research. The purpose of this proposed model legislation is to establish clear and efficient permitting regime for in-ocean CDR research. At the same time, the model legislation builds in consultation, monitoring, and other safeguards …

On The Legal Life-History Of Beaches, Josh Eagle

Faculty Publications

Climate change is, among other things, making it more and more difficult to get to the beach. Recent studies show that rising sea levels have been shrinking America’s beaches through erosion and inundation. This trend is unlikely to slow down anytime soon, and some scientists predict that we will see feet of additional sea-level rise within our lifetimes. While beaches are shrinking, reducing the availability of recreational opportunities for locals and tourists alike, the number of people who want to visit the beach has grown dramatically. The growth in demand is due to a variety of factors, including the very …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

A Major Answer To The Major Questions Doctrine, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.

The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an …

The Conundrum Of Managed Retreat, Elizabeth Andrews

Popular Media

No abstract provided.

Speculative Constitutions In Ursula K. Le Guin’S Hainish Cycle And The Rights Of Nature, Ted Hamilton

Faculty Journal Articles

This paper examines two speculative examinations of humanity as a unified species and agent of ecological change: Ursula K. Le Guin’s Hainish Cycle and the rights of nature movement. Le Guin’s Cycle imagines the slow interplanetary reintegration of human polities against a backdrop of cultural and environmental difference. I read the novels of the Cycle as an allegory for the rights of nature movement, which seeks to synthesize traditional and modern knowledge in a legal solution to ecological crisis. Both discourses, I argue, productively imagine a new historical understanding of humanity’s place on Earth, but they provide a weak theory …

Strengthening A One Health Approach To Emerging Zoonoses, Samira Mubareka, John Amuasi, Arinjay Banerjee, Hélène Carabin, Joe Copper Jack, Claire Jardine, Bogdan Jaroszewicz, Greg Keefe, Jonathon Kotwa, Susan Kutz, Deborah Mcgregor, Anne Mease, Lily Nicholson, Katarzyna Nowak, Brad Pickering, Maureen Reed, Johanne Saint-Charles, Katarzyna Simonienko, Trevor Smith, J. Scott Weese, E. Jane Parmley

Articles & Book Chapters

Given the enormous global impact of the COVID-19 pandemic, outbreaks of highly pathogenic avian influenza in Canada, and manifold other zoonotic pathogen activity, there is a pressing need for a deeper understanding of the human-animal-environment interface and the intersecting biological, ecological, and societal factors contributing to the emergence, spread, and impact of zoonotic diseases. We aim to apply a One Health approach to pressing issues related to emerging zoonoses, and propose a functional framework of interconnected but distinct groups of recommendations around strategy and governance, technical leadership (operations), equity, education and research for a One Health approach and Action Plan …

Climate Change And The Law Of National Security Adaptation, Mark P. Nevitt

Faculty Articles

The Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws …

Impact Assessment In The Ring Of Fire: Contested Authorities, Competing Visions And A Clash Of Legal Orders, Dayna Nadine Scott

Commissioned Reports, Studies and Public Policy Documents

In 2007, a significant mineral deposit dubbed the “Ring of Fire” was discovered in the boreal peatlands in Treaty No.9 territory in the far north of Ontario. The original project proposal submitted to the Canadian Environmental Assessment Agency was for a chromite mine and an associated infrastructure corridor to connect the remote location to the provincial high-way system. As years went by without progress on the regulatory approvals, the proponent sold its claims at a loss. In the period that followed, Ontario negotiated with the Matawa First Nations (the nine most proximate First Nations) who were, as a united block, …

Environmental Evidence, Seema Kakade

Faculty Scholarship

The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including, criminal policing, housing, and health care. After all, the people with on the ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as non-experts with little valuable knowledge. This Article explores the lived experience with …

Protecting The Ocean - Moving Forward At 50: London Convention/Protocol And Stockholm Declaration, Fiftieth Anniversary Proceedings, Ronán Long, José Manuel Pacheco Castillo, Elnaz Barjandi, Ríán Derrig, Linda Del Savio, Dorothee Seybold, Andrew Birchenough, Fredrik Haag

Conference Papers

Fifty years have elapsed since environmental concerns were brought to the fore of the international community’s attention. The year 2022 marks the 50th anniversary of the adoption of the London Convention and the Stockholm Declaration, two landmark international instruments that set a path towards the current international environmental regulatory framework. The International Maritime Organization and the World Maritime University hosted the joint International Academic Conference ‘Protecting the Ocean – Moving forward at 50: London Convention and Stockholm Declaration’ with the aim of raising awareness, discussing ocean-climate-related topics, and charting new avenues for impactful future research and policy initiatives. This report …