Law Commons^™

Putting The Brakes On California's Emissions Standards: An Analysis Of The Legal Challenges California's Advanced Clean Cars Ii Standards Will Face, Michael Maloof

Cleveland State Law Review

This Note discusses the legal implications of California’s Advanced Clean Cars II vehicle-emissions standards. These standards, which would affect vehicle model years 2026 through 2035, seek to eliminate the sale of new gasoline-powered vehicles in favor of only selling electric, zero-emission vehicles. In light of the Supreme Court’s recent decision in West Virginia v. EPA, this type of “generation-shifting” plan stands on broken ground due to the applicability of the Major Questions Doctrine. The agency action here—EPA approval of a Clean Air Act §7543 waiver—is exactly the type of “extraordinary case” that the Court must strike down in order …

A Call For The Legalization Of Two Sustainable Means Of Final Disposition In Ohio, Aimee Sheetz

Cleveland State Law Review

Several states currently have laws that allow for alkaline hydrolysis as an alternative to burial or cremation. A few states also allow for the composting of human remains. People are choosing these means of disposition for themselves and their loved ones due to environmental, financial, and societal reasons. Ohio currently does not allow either of these methods to be performed within the state. There have been attempts to legalize alkaline hydrolysis in Ohio. This Note calls for the legalization of both methods of disposition by including them in the Ohio Revised Code. This would provide clarity to the Ohio Board …

Beyond Response: Reimagining The Legal Academy's Role In Disaster Recovery And Preparedness, Latisha Nixon-Jones

Cleveland State Law Review

This Article proposes expanding the legal academy’s role in responding to disasters and emergencies, specifically through creating disaster clinics that take a community-based lawyering approach. The Article is one of the first to identify the need for community-based disaster legal clinical education that goes beyond the immediate response phase. It also proposes creating a disaster legal pipeline from the clinic through post-graduation employment. The Article furthers the literature’s discussion of the need for sustained disaster legal education. As the global pandemic caused by COVID-19 coronavirus continues to impact vulnerable populations and the frequency of natural disasters continues to increase, this …

Bans On Bags Or Bans On Bans?: A Home Rule Analysis Of Recent Attempts In Ohio To Enact Legislation Eliminating Plastic Bags From Stores, Christine Mika, Karin Mika

Cleveland State Law Review

This Article addresses how Ohio’s Home Rule provision in the Ohio Constitution has played out as legislators grapple with efforts to ban plastic bags from stores. It discusses the complexities of the Home Rule doctrine in Ohio, especially as it relates to the competing authority of state, county, and municipal governments. The Article discusses the history of Home Rule in Ohio, and the pre-emptive relationships between the competing governmental entities stemming from the existence of County and Municipal Charters that also grant legislative powers. It explains that the opting out of plastic bag bans by Ohio municipalities is a valid …

From Models To Mannequins: The Oxymoronic Equation Of International Labor Law Standards In The World Of Fashion, Namrata Bhowmik, Naman Anand

Cleveland State Law Review

Fashion law is an emerging field that addresses the legal issues that arise in the fashion industry. With the rapid growth and globalization of the fashion industry, there is an increasing need for specialized legal guidance in this area. Fashion law encompasses a wide range of legal issues, including intellectual property, contract law, employment law, international trade law, and environmental law.

One of the main drivers behind the need for fashion law is the rise of counterfeiting and intellectual property theft in the fashion industry. With the proliferation of ecommerce and social media, it has become easier than ever for …

When Industry Knocks: Ohio Department Of Agriculture's Fight To Control Pollution Permits For Concentrated Animal Feeding Operations, Alexis Woodworth

Cleveland State Law Review

The Clean Water Act requires that a permit be obtained before discharging pollutants into bodies of water in the United States. In Ohio, these permits are issued by the Ohio Environmental Protection Agency. But in 2002, after growing pressure from agriculture lobbyists, the Ohio Legislature passed legislation to transfer permitting authority over industrial farms to the Ohio Department of Agriculture. To date, this transfer has not been approved by the United States Environmental Protection Agency (EPA). The U.S. EPA has demanded legislative and regulatory changes before it will grant the Ohio Department of Agriculture (ODA) permitting authority. Concerned citizens and …

Bioprospecting Legislation In The United States: What We Are Doing, What We Are Not Doing, And What Should We Do Next, Emily J. Stolfer

Cleveland State Law Review

Bioprospecting is a growing worldwide effort to protect knowledge and the environment. With its potential economic benefit and technological advancements, bioprospecting will continue to grow as the world advances. Other nations have begun to protect the information available and continue to develop legislation. However, the United States has been hesitant to ratify international treaties or implement its own legislation. This Note examines both domestic and international efforts to protect both indigenous people and the environment. It analyzes the legislation the United States currently has in place but also examines where the United States is lacking. Regarding the United States’ failure …

Alito's Voice: Koontz And The End Of Justice Steven's Private Private Property Regulation Policy, Colin W. Maguire

Cleveland State Law Review

This article talks about the substantial distinction between a physical government invasion and a coercive request for funds, if the government action fails under Nollan and Dolan. Clearly, there is a newly recognized risk to water resource regulators who try to stop development in areas which are considered wetlands.

Paradise Lost? A Call To Clarify The Public Purpose Requirement In Ohio's Public Trust Doctrine, Maia E. Jerin

Cleveland State Law Review

The State of Ohio holds all land underlying the waters of Lake Erie and navigable rivers, as well as all artificially filled land, in trust for the benefit of the people of Ohio. Traditionally, private use of trust resources was subject to the public rights of navigation, water commerce, and fishing. This principle, known as the public trust doctrine, exists in every state but takes myriad forms and protects widely varying uses and interests. Many states have clarified their public trust doctrines through statutes or judicial review in order to meet the public’s changing needs, but Ohio’s public trust doctrine …

The Cincinnati Environmental Justice Ordinance: Proposing A New Model For Environmental Justice Regulations By The States, Jeannette De Guire

Cleveland State Law Review

The majority of environmental justice policies today exist as extremely decentralized municipal ordinances or as extremely centralized government agency strategies. Each system of regulation presents distinct advantages. Therefore, an analysis of the City of Cincinnati Environmental Justice Ordinance within the context of the ongoing debate between the benefits of centralized versus decentralized environmental regulations (the centralization-decentralization debate) examines the advantages of each scheme of regulations more extensively. However, each argument in favor of one type of regulation represents a disadvantage of the other, so this Note argues that by implementing environmental justice regulations at the state level, with the Cincinnati …

An Environmental Law Even Judge Learned Hand Would Violate: Ohio Epa Needs Non-Monetary Penalties To Enforce Construction Npdes Permits, David Emerman

Cleveland State Law Review

The Ohio EPA regulates construction sites by issuing NPDES permits that impose restrictions on the discharge of stormwater. Construction sites, however, have little incentive to follow these requirements. For many construction sites, it is more economical to be out of compliance and risk an unlikely fine than to comply with the permit. When these construction sites are out of compliance, stormwater runoff carries sediment into waterways and adversely affects water quality. In negligence torts, the Learned Hand Formula is used to determine what a reasonable person would do. The Learned Hand Formula, when applied to what an economically reasonable construction …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights , Allison M. Dussias

Cleveland State Law Review

The Article examines three pathways recently followed by tribes and Native communities in seeking protection of their rights to valued subsistence resources focusing on the legal principles and theories on which they have relied, including treaty rights, environmental law, tribal sovereignty, and international human rights law, as they have followed their different pathways.

Crossing The Home-Rule Boundaries Should Be Mandatory: Advocating For A Watershed Approach To Zoning And Land Use In Ohio, Melanie Shwab

Cleveland State Law Review

This Article advocates that Ohio adopt a mandatory “watershed-approach” to land use planning and zoning throughout the state. Ohio should adopt this approach to increase water quality in the state by reducing nonpoint source pollution, achieve greater environmental regulation uniformity, and offset the unfettered zoning power of municipalities operating in the absence of a comprehensive plan.

Holding Nature Responsible: The Natural Conditions Exception To Water Quality Standards Of The Clean Water, Shimshon Balanson

Cleveland State Law Review

Part I provides a background to the Clean Water Act (“CWA”), including a brief review of its history, structure, and the development of water quality standards. The analysis in Part II.A explores the states' responsibilities in compiling a list of impaired water under CWA § 303(d), while Part II.B reviews the evolution of the “natural conditions” exception in case law, state regulation, and EPA policy and guidance. Part II.C evaluates the validity of the “natural conditions” exception from three frameworks—scientific, public policy, and legal—and raises serious questions as to whether deviatory water quality standards cohere with the principles and purposes …

Environmental Audit Privilege Laws: Stripping The Public's Right To Know, Jennifer Lukas Jackson

Cleveland State Law Review

This Note argues that because the public places a high premium on its right to know, Congress should enact a federal statute that prohibits a privilege for environmental audits. A federal prohibition on a privilege for environmental audits will make the state statutes unconstitutional under the Supremacy Clause of the United States Constitution. This Note has six parts. Part II provides background on the traditional environmental regulatory regime and the role that the public plays in enforcing environmental statutes. Part III is an analysis of some of the typical state environmental audit privilege laws, including a discussion of the major …

Ozone Transport And The Clean Air Act: The Answers Are Blowin' In The Wind, Shari R. Desalvo

Cleveland State Law Review

This Note addresses the major provisions of the Clean Air Act that deal with the transport of ozone from one state to another. After an overview of the Act and specific sections dealing with ozone transport, the Note discusses the Environmental Protection Agency's (the "EPA") inconsistent interpretation and application of the Act, as exposed through the limited case law addressing this issue to date. Next, using the illustrative cases of Pennsylvania and Ohio, the Note discusses how Northeastern states are suffering economically and physically due to Midwestern pollution. This Note concludes that it is time for the EPA to stop …

Virtual Borders - Some Legal-Geo-Philosophical Musings On Three Globally Significant Fragil Ecosystems Under United Nations' Agenda 21 , Robert F. Blomquist

Cleveland State Law Review

The purpose of this article is to use the 1992 United Nations Conference on Environment and Development’s Agenda 21 discussion of globally significant fragile ecosystems as an imaginative launching point for some tentative explorations of what a recent Stanford Law Review Symposium terms "law and borders" studies. More specifically, I am interested in sketching and briefly analyzing what I call the "legal-geo-philosophical" characteristics of three examples of globally significant fragile ecosystems addressed in Agenda 21: (1) drylands, (2) mountains, and (3) coastal areas. The article's legal-geo-philosophical analysis, then, is an initial attempt to ponder some of the connections between law, …

Chance V. Bp Chemical, Inc.: Changing Ohio's Perception Of Stigma Damages , Heidi B. Eisman

Cleveland State Law Review

An increased public awareness of environmental hazards has filled the courts with plaintiffs seeking damages for the potential harm a contaminant may cause. Typically, the principle of damages is a simple one, requiring only that some type of harm or injury has occurred. When no such injury has occurred, plaintiffs still pursue claims under the theory of “stigma damages.” However, the majority of courts have held that stigma damages alone cannot be recovered, and instead, actual physical impact is required before a court will award damages. Ohio courts had previously reached conflicting conclusions on the issue of stigma damages. Recently …

Lawmaker As Lawbreaker: Enforcement Actions Against Municipalities For Failing To Comply With The Clean Water Act, G. Nelson Smith Iii

Cleveland State Law Review

The Clean Water Act makes it unlawful for anyone, including municipalities, to discharge a pollutant into navigable waters except as authorized by specific sections of the Act. To implement this prohibition, as well as the exceptions, the Act established a complex system regulating all discharges into the navigable waters of the United States. Under the Act, the discharge of pollutants without a permit or in violation of a permit condition may result in civil penalties and/or a criminal penalty per day per violation. While these penalties could be extremely costly for municipalities, the problem becomes even more severe because many …

Industrial Property Transfer Liability: Reality V. Necessity, Ellen Joanne Gerber

Cleveland State Law Review

Under the Comprehensive Environmental Response Compensation and Liability Act, the current owner is liable for the cleanup of hazardous waste, even if a previous owner was responsible for the soil and groundwater contamination, unless he can prove he is an innocent landowner. In response to CERCLA, many owners of industrial facilities have chosen to relocate their companies to rural areas. Unfortunately, these actions have a substantial impact on former industrial urban areas. Section II of this article discusses the liability of a landowner in a CERCLA action. In addition, it sets forth the elements of the innocent landowner defense and …

Superfund Liability Alternatives For The Innocent Purchaser, David W. Marczely

Cleveland State Law Review

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposes liability for cleanup costs where there has been a release to the environment of a hazardous substance. Liability has been construed by the courts as strict, even though Congress rejected an explicit provision of strict liability. Moreover, CERCLA liability permits no defenses except those found in the Act. CERCLA provides an affirmative defense to liability actions where a third party has solely caused the release of the hazardous substance. Congress attempted to clarify the land contract issue as part of the Superfund Amendments and Reauthorization Act of 1986 …

Evaluation Of Recycling Legislation Pending Before The 119th Session Of The Ohio General Assembly, Christopher D. Knopf

Cleveland State Law Review

This Article summarizes and analyzes the recycling bills before the 119th Session of the Ohio General Assembly. Part I of this Article reviews the requirements and recommendations of H.B. 592 and the State Plan. Part II provides an overview of the recycling bills and identifies the three basic approaches to recycling represented by these bills. Parts III, IV, V, and VI summarize and evaluate the recycling bills. This Article uses three criteria to evaluate the recycling bills: (1) consistency with H.B. 592 and the State Plan, (2) effectiveness in preventing the disposal of solid waste in landfills, and (3) efficiency …

The Epa's Discretion To Regulate Acid Rain: A Discussion Of The Requirements For Triggering Section 115 Of The Clean Air Act, Stuart N. Keith

Cleveland State Law Review

Acid rain does not respect political boundaries; the problem of acid rain has had a devastating effect on human health and the environment of the northeastern United States as well as the area across the Canadian border. Recognizing the implications of trans-boundary air pollution problems such as acid rain, Congress amended section 115 of the Clean Air Act to permit the Administrator of the Environmental Protection Agency to order the reduction of air pollution menaces emanating from the United States which affect foreign nations. New York v. Thomas is the first major case to interpret section 115 and it will …

How Lawyers Deal With The Recent Changes In The Area Of Environmental Law, Dorothea M. Polster

Cleveland State Law Review

Recent changes in the area of environmental law regarding the cleanup of hazardous waste sites, particularly in the federal arena, are forcing lawyers to revise their strategy when advising commercial real estate developers. Lawyers have traditionally focused upon the economic aspects of a commercial real estate transaction such as the enforceability of leases, mortgage encumbrances, restrictions, title issues, and site inspection of the premises. In addition to focusing upon these traditional aspects, new and important emphasis must be placed on the analysis and determination of the condition of the physical property itself. Recent federal legislation such as the Comprehensive Environmental …

The Discovery Rule: Fairness In Toxic Tort Statutes Of Limitations, Bill Shaw, Pat Cihon, Malcolm Myers

Cleveland State Law Review

The costs associated with the disposal of toxic waste can be classified in two ways. The first category is made up of environmental losses such as the contamination of rivers, lakes, and ground water with the resulting destruction of aquatic life, wildlife, and vegetation and includes expenses incurred in cleanup. The second category is comprised of losses sustained by individuals and includes both property damage and physical injury resulting from direct or indirect contact with hazardous wastes. Injured individuals have two options in their pursuit of compensation: statutory and common law. This Article argues that statutory recourse is not only …

The Discovery Rule: Fairness In Toxic Tort Statutes Of Limitations, Bill Shaw, Pat Cihon, Malcolm Myers

Cleveland State Law Review

The costs associated with the disposal of toxic waste can be classified in two ways. The first category is made up of environmental losses such as the contamination of rivers, lakes, and ground water with the resulting destruction of aquatic life, wildlife, and vegetation and includes expenses incurred in cleanup. The second category is comprised of losses sustained by individuals and includes both property damage and physical injury resulting from direct or indirect contact with hazardous wastes. Injured individuals have two options in their pursuit of compensation: statutory and common law. This Article argues that statutory recourse is not only …

Judicial Development Of Standards Of Liability In Government Enforcement Actions Under The Comprehensive Environmental Response, Compensation And Liability Act, Stephen Q. Giblin, Dennis M. Kelly

Cleveland State Law Review

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) represents the first major attempt on a national level to address the problem of abandoned hazardous waste sites. CERCLA permits an action to be brought in federal court for recovery of amounts disbursed from the Superfund against, inter alia, any person who arranges for treatment or disposal of wastes at a site, typically the generator of the hazardous wastes. CERCLA's enforcement provisions contain numerous ambiguities and apparent inconsistencies on issues that directly affect the potential liability of CERCLA's defendants. Many of the inadequacies probably can be traced to the …

When Is One Generator Liable For Another's Waste, Kenneth C. Moore, Kathiann M. Kowalski

Cleveland State Law Review

Since the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund Act) was adopted as a compromise bill by the lame duck Congress in December of 1980, companies that generated and disposed of hazardous wastes at off-site facilities have been seriously concerned about the question of when one company can be held liable for clean-up and other response costs associated with another company's wastes. Two issues are central to the question of when one generator may be liable for another's waste: 1) whether and to what extent a causal connection must be shown to exist between a generator's waste …

Executive Order 12,114 - Environmental Effects Abroad: Does It Really Further The Purpose Of Nepa, Francis M. Allegra

Cleveland State Law Review

Executive order 12,144 is a cross-product of two separate vectors. On one axis it is a statement of foreign policy directing administrative review of the extra territorial environmental effects of major federal activities. On the other it is an alleged resolution of a long-standing intergovernmental controversy concerning the applicability of the National Environmental Policy Act of 1969 to major federal actions having solely nondomestic environmental impacts. In either context, the Order should be viewed as an attempt by the United States to assume a more responsible role in world environmental affairs. This note will examine the Executive Order and compare …

Executive Order 12,114 - Environmental Effects Abroad: Does It Really Further The Purpose Of Nepa, Francis M. Allegra

Cleveland State Law Review

Executive order 12,144 is a cross-product of two separate vectors. On one axis it is a statement of foreign policy directing administrative review of the extra territorial environmental effects of major federal activities. On the other it is an alleged resolution of a long-standing intergovernmental controversy concerning the applicability of the National Environmental Policy Act of 1969 to major federal actions having solely nondomestic environmental impacts. In either context, the Order should be viewed as an attempt by the United States to assume a more responsible role in world environmental affairs. This note will examine the Executive Order and compare …