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- Washington and Lee Journal of Energy, Climate, and the Environment (5)
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Articles 31 - 60 of 63
Full-Text Articles in Law
An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay
An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay
Saptarishi Bandopadhyay
In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …
Off-Road Torts: The Difficulties Of Representing A Client Injured Due To Defects In Vehicles Modified For Off-Road Use Or Injured Due To A Dangerous Condition Of The Land., Nicholas Morgan
Nicholas Morgan
No abstract provided.
Sara's State Procedural Reform: Reading Cts V. Waldburger Through Canons Of Statutory Interpretation, Alfred Light
Sara's State Procedural Reform: Reading Cts V. Waldburger Through Canons Of Statutory Interpretation, Alfred Light
Alfred Light
This Article takes Justice Antonin Scalia and Professor Bryan A. Garner’s 2012 treatise Reading Law seriously by showing how the Supreme Court applied (or failed to apply) Reading Law’s canons of statutory interpretation in a recent decision evaluating a preemptive provision of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) – 42 U.S.C. §9658 in CTS v. Waldburger. Justice Kennedy applied several semantic and contextual canons: the Ordinary-Meaning Canon, the Fixed-Meaning Canon, the Whole-Text Canon, and the Harmonious Reading Canon. As important, the Court plainly rejected a principle which Reading Law calls a “falsity”: the false notion …
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
Michael D. Hasty
Recent opinions by the Supreme Court have disrupted the scheme envisioned by Congress to regulate wetlands (see § 404 of the Clean Water Act). This article explores this issue by tracing the development of wetlands law. It then assesses current application of the Court’s tests, through the lens of two recent opinions in the Fourth and Sixth Circuits. The paper then summarizes outcomes in the circuits, with emphasis on their lack of uniformity in application. Further, the paper assesses the agencies response to clarify wetland jurisdiction through rulemaking. Finally, the underlying constitutional issues in the Court’s opinions are explored.
The Cost Of Doing Business In Asia: A Comparative Legal Study Of Environmental Regulations In The Emerging Markets Of Thailand, Malaysia, And Indonesia, Brooke R. Padgett
The Cost Of Doing Business In Asia: A Comparative Legal Study Of Environmental Regulations In The Emerging Markets Of Thailand, Malaysia, And Indonesia, Brooke R. Padgett
Brooke R. Padgett
Abstract: This article explores whether voluntary standards, customary law, or more binding bilateral investment treaties are best for corporations, the emerging markets of Thailand, Indonesia, and Malaysia, and the environment itself. While corporations, markets, and the environment facially seem to have divergent priorities, environmental disasters are more costly after the fact than they are to prevent so in reality their priorities may not be so different after all. Some of the potential issues the paper will examine and address are big picture macro level such as fairness to future generations, intergenerational rights; the actual cost through questions of polluter pays, …
Enforcement Activism Of The Eu’S Renewable Energy Directive During The Global Financial Crisis, Jon Truby
Enforcement Activism Of The Eu’S Renewable Energy Directive During The Global Financial Crisis, Jon Truby
William & Mary Environmental Law and Policy Review
No abstract provided.
Facts, Fiction, And Perception In Hydraulic Fracturing: Illuminating Act 13 And Robinson Township V. Commonwealth Of Pennsylvania, Joshua P. Fershee
Facts, Fiction, And Perception In Hydraulic Fracturing: Illuminating Act 13 And Robinson Township V. Commonwealth Of Pennsylvania, Joshua P. Fershee
Joshua P Fershee
Hydraulic fracturing for oil and natural gas is perhaps the most polarizing energy issue in the United States and around the world, and Pennsylvania has emerged as an example of passionate views both for and against hydraulic fracturing for shale gas. To limit local government restrictions on gas drilling, the Pennsylvania legislature passed Act 13 in September 2012, and the Act largely eliminated the ability of local governments to restrict oil and gas operations through zoning. The Pennsylvania Supreme Court overturned Act 13 in December 2013.
This Article reviews how Act 13 came to be, highlights the key provisions of …
Europe Should Dump Cap-And-Trade In Favor Of Carbon Tax With Reinvestment To Reduce Global Emissions, Stephen Sewalk
Europe Should Dump Cap-And-Trade In Favor Of Carbon Tax With Reinvestment To Reduce Global Emissions, Stephen Sewalk
Washington and Lee Journal of Energy, Climate, and the Environment
It is time for the European Union to dump the EU-ETS cap-and trade system, as it is not working. By adopting a carbon tax with reinvestment, the European Union (EU) could reduce its economy-wide emissions by forty-eight percent (and emissions from buildings and utilities by sixty-five percent) within twenty years while automatically putting in place a border tax adjustment. By adopting the carbon tax with reinvestment, the EU's trading partners would be heavily encouraged to adopt the same system, thereby dramatically reducing global emissions. This adoption would occur much like the EU adopting the Value-Added Tax and 150 countries following …
Climate Engineering Field Research: The Favorable Setting Of International Environmental Law, Jesse Reynolds
Climate Engineering Field Research: The Favorable Setting Of International Environmental Law, Jesse Reynolds
Washington and Lee Journal of Energy, Climate, and the Environment
As forecasts for climate change and its impacts have become more dire, climate engineering proposals have come under increasing consideration and are presently moving toward field trials. This article examines the relevant international environmental law, distinguishing between climate engineering research and deployment. It also emphasizes the climate change context of these proposals and the enabling function of law. Extant international environmental law generally favors such field tests, in large part because, even though field trials may present uncertain risks to humans and the environment, climate engineering may reduce the greater risks of climate change. Notably, this favorable legal setting is …
Oil And Gas Law: From Habendum To Patent Law, Emir Crowne, Barbero C. Michael
Oil And Gas Law: From Habendum To Patent Law, Emir Crowne, Barbero C. Michael
Washington and Lee Journal of Energy, Climate, and the Environment
This article outlines and addresses the specific patent issues affecting the oil and gas industry. In so doing, it argues that the business realities of the industry, coupled with its fast-paced environment, make it a perfect example of why the current patent prohibition against professional skills and business methods must be reformed.
The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan
The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan
Erin Ryan
This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …
Curb Your Enthusiasm For Pigouvian Taxes, Victor Fleischer
Curb Your Enthusiasm For Pigouvian Taxes, Victor Fleischer
Victor Fleischer
Pigouvian (or "corrective") taxes have been proposed or enacted on dozens of products and activities that may be harmful in excess: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of using Pigouvian taxes more frequently to address serious social harms.
This enthusiasm for Pigouvian taxes should be tempered. A Pigouvian tax is easy to design—as a uniform excise tax—if one assumes that each individual causes the same amount of harm with each incremental increase in activity on …
Identifying Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy
Identifying Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy
Dr Evgeny Guglyuvatyy
This paper relates to the research project designed to identify which tool: an emission trading or carbon tax would be more appropriate measure to reduce GHG emissions in Australia. To evaluate both of these instruments, this research uses the multi-criteria analysis (MCA) which generally requires two main inputs – evaluation criteria and alternatives performance ranks concerning the criteria. To obtain and verify the evaluation criteria specific to Australian conditions and rank relative importance of those criteria, the Delphi method is utilised by this research. The Delphi study makes use of a group of Australian experts to verify, update and weigh …
Method And Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy
Method And Criteria For Climate Change Policy Evaluation In Australia, Evgeny Guglyuvatyy
Dr Evgeny Guglyuvatyy
Many countries have already implemented either emission trading schemes (ETS) or carbon taxes or both. National governments tend to prefer ETSs over carbon taxes due to the political acceptability of ETSs. The Australian Government proposed emissions trading as a centrepiece of national climate change policy. However, there is still a debate concerning the choice of instruments for climate change policy. This paper suggests that for a comprehensive policy-making process prospective policy instruments require to be evaluated on a multi-criteria basis. To evaluate carbon tax and emissions trading the multi-criteria analysis (MCA) is proposed. To obtain the criteria specific to Australian …
Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin
Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin
A. Michael Froomkin
US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem. Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to …
Regulation Of Greenhouse Gases And Other Air Pollutants In The First Obama Administration And Major Air Issues For The Second Term, Patricia Mccubbin
Regulation Of Greenhouse Gases And Other Air Pollutants In The First Obama Administration And Major Air Issues For The Second Term, Patricia Mccubbin
Patricia Ross McCubbin
President Barack Obama has made addressing climate change the centerpiece of his environmental policy. Most recently, on June 25, 2013, the President gave a groundbreaking speech detailing the steps his administration will take to reduce greenhouse gas emissions throughout the United States. Of great controversy, the President directed the U.S. Environmental Protection Agency (EPA) to limit emissions of greenhouse gases from both new and existing power plants, which represent 40% of total U.S. carbon emissions. The President’s call to action – in his June 2013 speech and throughout his first term – stands in stark contrast to Congress’s inability to …
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Rena I. Steinzor
After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and handled. Then …
Cercla's Mistakes, John Copeland Nagle
Interfaces Between Csr, Corporate Law And The Problem Of Social Costs, Benedict Sheehy
Interfaces Between Csr, Corporate Law And The Problem Of Social Costs, Benedict Sheehy
Benedict Sheehy
Abstract: CSR is an increasingly seen as the preferred approach to addressing the social impacts of industrial production. These social impacts, however, come in the first instance from production and not the corporation. The legal corporation facilitates social costs secondarily. Much of the thinking about CSR fails to adequately take account of the systemic nature of social costs, the legal nature of the corporation and social costs and the so the systemic failure of law to deal with them. This article addresses the interface between the three concepts and related issues of CSR, social costs and corporate law.
Vulnerability And Power In The Age Of The Anthropocene, Angela Harris
Vulnerability And Power In The Age Of The Anthropocene, Angela Harris
Angela P Harris
No abstract provided.
Hiding The Ball: The Sidestepping Of National Pollution Discharge Elimination System Permitting Requirements By Concentrated Animal Feeding Operations, Adam S. Carlesco
Hiding The Ball: The Sidestepping Of National Pollution Discharge Elimination System Permitting Requirements By Concentrated Animal Feeding Operations, Adam S. Carlesco
Adam S Carlesco
Concentrated animal feeding operations (CAFOs) are one of the few point sources under Clean Water Act jurisdiction that are not required to meet more stringent NPDES permitting requirements. After a series of court cases, the EPA proposed rulemaking requiring the submission of information by CAFO operators to create a national database of CAFO locations and operation information, yet that rulemaking was subsequently abandoned. This paper proposes that EPA implement the proposedreporting requirements put forth in their 2010 settlement agreement with environmental petitioners.
Compulsory Water Fluoridation: Justifiable Public Health Benefit Or Human Experimental Research Without Informed Consent, Rita Barnett
Compulsory Water Fluoridation: Justifiable Public Health Benefit Or Human Experimental Research Without Informed Consent, Rita Barnett
Rita Barnett-Rose
Most Americans are under the impression that compulsory water fluoridation is a safe and effective public health measure to fight tooth decay, and courts have routinely upheld compulsory water fluoridation schemes as legitimate exercises of police power to ensure the dental health of communities. Yet the evidence is steadily mounting against water fluoridation, with recent scientific studies suggesting that not only is fluoridation not effective at achieving the stated public health goal of combating dental caries, but also that excess exposure to fluoride contributes to a host of far more serious health concerns, particularly in the very population the public …
Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt
Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt
Mark P Nevitt
Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military to seek national security exemptions from various environmental laws and the military’s poor cleanup record. Yet the Department of Defense (“DoD”) is largely subject to and complies with the full array of American environmental laws in the same manner and extent as any agency of the federal government. While the military’s environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.
This article surveys …
Coping With Climate: Legal Innovation In The Absence Of Full Reform, Robert R.M. Verchick, Faye Sheets
Coping With Climate: Legal Innovation In The Absence Of Full Reform, Robert R.M. Verchick, Faye Sheets
Robert R.M. Verchick
In the absence of a federal legislation directing government to adapt to the unavoidable effects of climate change, the Obama administration has put its faith in existing environmental laws like the Clean Air Act (“CAA”), the Endangered Species Act (“ESA”), and the National Environmental Policy Act (“NEPA”). But often federal objectives focus only on reducing greenhouse gases—what experts call “mitigation”—and neglect strategies for coping with the climate disruptions that we cannot avoid—otherwise known as “adaptation.” Where the federal policy falls short, states are beginning to experiment on their own with climate adaptation strategies. This essay examines both approaches, mitigation and …
Will More, Better, Cheaper, And Faster Monitoring Improve Environmental Management?, Ryan P. Kelly
Will More, Better, Cheaper, And Faster Monitoring Improve Environmental Management?, Ryan P. Kelly
Ryan P Kelly
Two critical problems in environmental management are a lack of primary data and the difficulty of assessing the environmental impacts of human activities. Producing the information necessary to address these twin challenges is often difficult and expensive, which impedes decisionmaking in environmental management. I focus here on the possibility of making data collection more powerful and more cost-effective with a suite of analyses made tractable by emerging technology for genetic analysis. More, better, cheaper, and faster information about the planet’s living resources promises to influence a wide range of legal and policy processes—from Clean Water Act compliance and related public …
Industrial Hemp: Canada Exports, United States Imports, Courtney N. Moran Ll.M.
Industrial Hemp: Canada Exports, United States Imports, Courtney N. Moran Ll.M.
Courtney N. Moran LL.M.
Industrial hemp, a non-psychoactive variety of Cannabis sativa L., (C. sativa) is the greatest renewable resource available to mankind. Industrial hemp is an environmentally friendly crop that does not require herbicides or pesticides and can clean up toxins in soil. Manufacturers can produce hemp into over 25,000 products.
More than 30 industrialized nations, including Canada, cultivate industrial hemp for commercial purposes. Despite the fact that industrial hemp is a viable agricultural commodity, in the United States hemp is classified as marihuana, a Schedule I controlled substance, under the Controlled Substances Act (CSA). Therefore, it is illegal under U.S. federal law …
Offshore Safety And Environmental Regimes: A Post-Macondo Comparative Analysis Of The United States And United Kingdom, Jeffery R. Ray
Offshore Safety And Environmental Regimes: A Post-Macondo Comparative Analysis Of The United States And United Kingdom, Jeffery R. Ray
Jeffery R Ray
Abstract This paper uses a selected review of United States (US) laws resulting from the issues presented by the Deepwater Horizon, or Macondo, incident. Regulatory issues based on engineering concerns are analysed in the second half of the US Chapter. The analysis questions whether the US has truly dealt with Macondo issues or if the issues were effectively tabled. The current state of the US regime indicates that it is either in a transitional phase or it has failed to implement key measures to effectively utilize the post-Macondo regulations. The United Kingdom (UK) offshore safety regime followed by selected environmental …
The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold
The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold
Indiana Journal of Global Legal Studies
This paper explores representative environmental action in international, European Union, and German environmental law as an example of '7egal translation." The Aarhus Convention, dating from 1998, requests signatory parties to provide environmental NGOs with wide access to justice so that the protection of the environment can be controlled by the judiciary. Both the European Union and Germany have implemented the provisions of the Aarhus Convention into their respective legal orders. This process of implementation can be considered as "legal translations." The argument of this paper is that a perspective of '7egal translation" provides new vistas on the various intertwined layers …
An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman
An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman
All Faculty Scholarship
Economic theory developed in the prior literature indicates that under the joint and several liability imposed by the federal Superfund statute, the government should recover more of its costs of cleaning up contaminated sites than it would under nonjoint liability, and the amount recovered should increase with the number of defendants and with the independence among defendants in trial outcomes. We test these predictions empirically using data on outcomes in federal Superfund cases. Theory also suggests that this increase in the amount recovered may discourage the sale and redevelopment of potentially contaminated sites (or “brownfields”). We find the increase to …
How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn
How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn
Michael E Lewyn
The National Environmental Policy Act (“NEPA”) requires federal officials to draft an environmental impact statement (“EIS”) describing the environmental impact of proposed federal actions that significantly affect the environment, as well as analyze the environmental impacts of alternatives to the proposed action. Almost two dozen states have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments.
This article focuses on one of the strictest little NEPA statutes: New York's State Environmental Quality Review Act (“SEQRA”). While most little NEPA statutes cover only government projects,SEQRA also covers private sector projects requiring municipal permits. Furthermore, SEQRA requires the government …