Law Commons^™

A Fishery, A Sanctuary, A Sink, And A Disaster: The Often Hapless Management Of California's Salton Sea, William M. Mclaren

Will McLaren

Over a century ago, a series of questionable management decisions and water-diversion engineering mistakes in Southern California produced an “unnatural” waterbody called the Salton Sea. Since then, the Sea has served as a recreational destination with fluctuating popularity, a sanctuary for migratory birds, a sink for agricultural runoff and urban wastewater, and one of the most productive tilapia and corvina fisheries in the United States. However, the Sea’s resources and associated uses have steadily deteriorated since its formation.

The contrast between the ethics that drove resource management decisions at the time of the Salton Sea’s formation to those employed in …

The Death Of The Duty To Apply: Limitations To Cafo Oversight Following Waterkeeper & National Pork Producers, William M. Mclaren

Will McLaren

Should regulators have an affirmative burden to show industrial livestock facilities are polluting before imposing permit requirements, or should facility owners have a duty to apply for permits? This article analyzes that question in the context of water quality permitting and the concentrated livestock industry, with an emphasis on permitting regimes under the Clean Water Act (CWA).

Concentrated animal feeding operations (CAFOs) have, in the past decade, received a decisive answer to the above inquiry. In Waterkeeper Alliance v. EPA and National Pork Producers v. EPA, two federal appellate courts determined that CAFOs have no duty to apply for a …

What Is The Big Fracking Deal?, Vanessa Klass

Vanessa Klass

At a time when the country has struggled to grow economically, energy production in the United States has been one of the most promising success stories. A large part of the success behind this remarkable oil and gas production as well as job creation is due to an energy-extraction process known as Hydraulic Fracturing (also known as “fracking”). Fracking has transformed America’s energy potential by allowing increased production of oil and natural gas from formerly inaccessible shale formations. As a result, the United States surpassed Russia as the world’s top natural gas producer, becoming the world leader in natural gas …

The Designation Of Protected Areas Pursuant To Biodiversity-Related Meas: An Effective Way Of Conserving Natural Resources?, Marco Citelli

Bocconi Legal Papers

The objective of the article is to see how and to which extent the creation of protected areas pursuant to biodiversity-related MEAs, as a way of balancing state sovereignty over natural resources and the concern of the international community over global environmental protection, can effectively serve the purpose of conserving biodiversity. To that extent, relevant rules under biodiversity-related MEAs will be analyzed as well as the practice developed at international level by the Conference of the Parties of the 1992 Convention on Biological Diversity (CBD COP) and the strategies respectively developed at national and sub-national level by a selected number …

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Julia Johnson

This article explores the reasons why previous attempts at biofuels legislation in the United States have not been successful and focuses upon market-level incentives that drive consumer willingness to purchase biofuels. For the U.S.’s biofuels policies to be more effective, the nation must better employ consumer-side factors and devise policies around promoting biofuels’ ability to compete with conventional fuels. Consumer-side factors include biofuels’ accessibility and pricing, as well as the ease and attractiveness of purchasing alternative energy-powered vehicles. The U.S.’s initiatives have also neither been aggressive enough, nor sufficiently comprehensive, to enable the U.S. to mirror Brazil’s success.

This article …

The Problems With The Private Enforcement Of Cercla: An Empirical Analysis, Garry A. Gabison

Garry A. Gabison

This paper investigates the effect of the public enforcement filings on the private filings of CERCLA suits. First, this paper argues and empirically tests that private suits are more substitute than complement of private suits. Second, it finds that the EPA has in place procedures and remedies not accessible to private enforcers. In general, the EPA settles more cases pre- and post filing. Furthermore, private parties have more cases dismissed. This paper argues that this point to the EPA selecting easier cases and leaving harder cases to the private enforcer – or so its procedures make it seem from the …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

The Public Trust Doctrine, Private Water Allocation, And Mono Lake: The Historic Saga Of National Audubon Society V. Superior Ct., Erin Ryan

Erin Ryan

This article tells the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in …

Features Of Forestry In Bangladesh And Available Legal Protections And Implications, Mahmudul Hasan

Mahmudul Hasan

Due to climate change as well as rise of global temperature Bangladesh is going to face a massive environmental challenge. Being an environmentally vulnerable country Bangladesh needs to step immediately to take all sort of measures to prevent the growing environmental threats. Forestry plays a pivotal role to protect environment as well as biodiversity of a particular region. Being agriculture based country and a coastal region Bangladesh already has been facing the adverse effect of decrease of forest lands. For some decades desertification has been taking place in many arena of the country. And due to the large amount of …

Regulation Of Chemical Risks: Lessons For Tsca Reform From Canada And The European Union, Adam Abelkop, John D. Graham

Adam Abelkop

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. …

Governing For The Corporations: History And Analysis Of U.S. Promotion Of Foreign Investment, Michael R. Miller

Michael R Miller

This paper explores and analyzes U.S. government support for foreign investors, especially major oil companies.

Throughout the 20th Century the US government has repeatedly used its international political influence to benefit US corporate activities abroad. The US government and others assumed initially that this was in the larger interests of the United States because US companies would represent and promote the United States’ policy agenda.

However, US corporate activities abroad over the last century seem to indicate this assumption was flawed. In numerous examples, US corporations have either ignored or thwarted the stated interests of the US government. At first …

Protecting Children Attending School Through Effective Regulations Of Harmful Volatile Organic Compounds, Michelle Gregory

Michelle Gregory

The United States Environmental Protection Agency (EPA) has a regulation known as the Federal Clean Air Act Currently, the Federal Clean Air Act only sets the framework for air pollution control as it affects industrial settings.Although industrial facilities are not major sources of ozone depletion per se; they are sources of high emissions of volatile organic compounds (VOCs), which are the precursors of ozone depletion.The EPA has not established standards for indoor VOCs and nonindustrial settings. As a result, public health is compromised as states and communities are left to determine policies relating to land development and indoor safety standards. …

U.S. Military Responsibility For Environmental Clean Up In Contingency Environments, Jennifer Neuhauser

Jennifer Neuhauser

U.S. Military Responsibility for Environmental Clean Up in Contingency Environments Environmental destruction is an inevitable by-product of warfare. However, the new paradigm of U.S. military contingency operations requires a strategic vision beyond merely engaging the enemy. American military commanders in the 21st century must also seek to win the “hearts and minds” of the local population in order to solidify gains and ensure lasting victory. Unfortunately, many commanders have not adapted to this new way of thinking. As a result, commanders fail to consider the long-term environmental damage inflicted by their soldiers during combat operations, damage which must be borne …

Archaeological Sites And Mangrove Forest: A Legal Overview Of The Ecologically Critical Areas In The Bangladesh Context, Arpeeta Shams Mizan

Arpeeta Shams Mizan

Ecologically critical area as a concept is practised globally to preserve the natural biodiversity of environmentally endangered areas. These areas also fall under the criteria of natural and cultural heritage. Since the Stockholm Declaration, leading international legal instruments have reiterated their sanctity in consonance with the principles of Intergenerational equity and also of human rights. The environmental law in Bangladesh has incorporated these principles by making provisions for Ecologically Critical Areas (ECAs) in the Bangladesh Environment Conservation Act 1995 (as amended in 2010) and the Environment Conservation Rules 1997. Bangladesh is a signatory to the World Heritage Convention, the principal …

Palila, People, And Politics: Perfect Facts, Law, And Lawsuits With Imperfect Results, Joanna C. Zeigler

Joanna C Zeigler

This paper discusses the endangered bird, the Palila, and the stakeholder perspectives that have influenced the bird's protection under the Endangered Species Act.

Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen

David M Driesen

This essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that …

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Mark P Nevitt

The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear–until recently.A federal district court ruled …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James Thuo Gathii

Third world citizens—parties who often have the most to lose in natural resource contracts between their governments and foreign investors—often have no voice in negotiations of the contracts and consequently have no remedy under contract law when harms occur or when the contracts are not properly enforced. The privity doctrine, which permits contract suits only by parties to the contract, bars these citizens from suing because they were not in privity with any of the contracting parties, despite that these contracts are generally made for the benefit of these citizens. However, some countries have adopted—and this Essay argues other countries …

Management Regimes And Its Impact On The Wetland Fisheries Management In Assam, Ganesh Chandra

Ganesh Chandra

Assam is endowed with copious aquatic wealth in the form of beels, swamps, ponds and rivers. The floodplain wetlands (beels) extending over one lakh hectare, constitute the most important fishery resource of the state. The beels are considered as one of the most productive ecosystems owing to their characteristic interactions between land and water system. These wetlands are the common property resource and under different management regimes. These wetlands are under various management regimes, i.e., private management (individuals and groups), fishermen cooperative management, Community-based fisheries management (decentralized management, Government works as facilitator) and open access. Most of the unregistered beels …

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Renewable Energy: Where We Are Now And How Renewable Energy Investment And Development Can Be Expanded, Kevin M. Walsh

Kevin M Walsh

The renewable energy field is currently stifled because many renewable energy developments require tax equity investors to provide additional funds to get the project off the ground and running. The Code provides tax credits to incentivize investors to invest. Currently, the Investment Tax Credit (“ITC”) is the only available credit left for renewable projects placed in service from 2014 on. Tax credits are a step in the right direction to encourage renewable investment; however, the credits are limited in application mostly to large financial institutions. Moreover, investments into one specific renewable energy project can be risky because there is no …

"You Must Remember This:" Nothing Lasts A Hundred Years, David D. Butler

David D. Butler

Much of what any given generation thinks of as "natural," is, in fact, the result of a prevoious generation's civil engineering projects. Medieval French peasants used to say that mythical giants built the Roman acquiducts of Southern France, because the notion that mere humans could have constructed such systems was simply beyond their post Black-Death conception.

A Legal Approach To The Improvement Of Energy Efficiency In Europe And The United States: Greening The Existing Building Stock, Teresa -. Parejo

Teresa - Parejo

In large cities buildings are responsible for 40% of energy consumption and 36% of CO2 emissions in the EU, and 70% of energy consumption and 40% of CO2 emissions in the US. Hence, improving the energy performance of buildings is a very cost-effective way to fight against climate change.

Most of the potential for energy savings is in existing buildings so they provide the greatest opportunities and challenges, but the measures adopted until today to improve energy efficiency, despite some innovative proposals, have been insufficient and mainly focused in new buildings. All the actions developed either by the EU and …

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 …

Argentine Legislation And Climate Change - Legislación Argentina Y Cambio Climático, Luis Gabriel Escobar Blanco

Luis Gabriel Escobar Blanco

This presentation was exposed in two different events, in preparation for de COP 2014 in Lima. First how panelist in "Encuentro de Cambio Climatico", organized by Ministerio de Tierras Ambiente y Recursos Naturales of Mendoza's Estate. Later in the EFICI (III Congreso de Educación en Ciencia Empírica en Facultades de Ingeniería) in UTN (Universidad Tecnológica Nacional - Regional Cuyo)

The objective this dissertation is diffusion and knowledge the argentinian legislation on climate change.

And evaluate domestic legislation by criteria Globe International Institute

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.

Key Change: The Role Of The Creative Industries In Climate Change Action, Tim Hollo

Matthew Rimmer

The role of the creative industries – arts and artists – in helping to drive the changes in laws and behaviours that are necessary to tackle climate change, while not superficially obvious, is a deep one. Arts and artists of all kinds, as cultural practitioners, have been closely entwined with social change and social control since time immemorial, in large part because they help shape our understanding of the world, framing ideas, prefiguring change, and opening hearts and minds to new ways of thinking. They have played a major role in campaigns for law reform on many issues, and climate …

Facts Can Be Stubborn: The Importance Of The Fact Section In Environmental Law, L.A. County Flood Control Dist. V. Natural Res. Def. Council, 133 S. Ct. 710 (2013), Aaron Schaer

Aaron Schaer

L.A. County is a perfect example of a difficulty that underlies many environmental cases. The facts are often incredibly complex, and based on science that even the PhDs among us struggle to comprehend. And if this were not enough, the environmental laws that these facts are siphoned through are no walk in the park themselves. Quite the opposite, as should be expected from political compromises over intricate, ever-evolving science. Environmental laws are rife with jargon and compound terms that are best left to acronyms like NAAQS and NPDES. This itself has become food for fodder, as these laws have been …

Sb 469 Shouldn't Be Rushed, Robert R.M. Verchick, Christine Klein

Robert R.M. Verchick

No abstract provided.

La Responsabilidad Por Daño Ambiental: Una Mirada A Sus Fundamentos Y A La Especial Tutela Que Merecen, Leonardo Jara Bazan

Leonardo Jara Bazán

No abstract provided.