Law Commons^™

From Rio To Kyoto: A Study Of The Involvement Of Non-Governmental Organizations In The Negotiations On Climate Change, Chiara Giorgetti

Law Faculty Publications

This Article analyzes the influence of non-governmental actors on the negotiations of the Framework Convention on Climate Change (FCCC or the Convention). In particular, it evaluates the methods employed by NGOs in furthering their substantive agendas, the interaction among various non-governmental actors, and the results of their efforts. This Article considers two kinds of NGOs: business and environmental. Environmental NGOs (ENGOs) are the self-defined representatives of environmental interests. They campaign for the strict reduction of all gases that induce climate change. On the other side, business NGOs (BNGOs) typically represent the interests of those industries that are involved in the …

The Mescalero Apache Indians And Monitored Retrievable Storage Of Spent Nuclear Fuel: A Study In Environmental Ethics, Noah M. Sachs

Law Faculty Publications

The proposal of the Mescalero Apache Indians of New Mexico to host a nuclear waste storage facility raised difficult questions about political sovereignty, environmental justice, and democratic consent. While the proposal had numerous drawbacks and deserved to be opposed, many of the arguments used against it were conceptually flawed and paternalistic. Arguments decrying bribery of a poor community were particularly weak, while those criticizing targeting of Indian tribes by the United States government and coercion of tribal members by the Mescalero leadership had more merit. The core ethical arguments should be separated from the rhetoric so that policy makers, Native …

The Proposal To Split The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Individuals and organizations concerned about natural resources should be aware of the recent controversial proposal to divide the United States Court of Appeals for the Ninth Circuit. During the first session of the 104th Congress in the fall of 1995, the United States Senate Judiciary Committee approved Senate Bill 956, a measure that would establish a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, and that would leave California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote was important for two reasons: the circuit's division could substantially affect …

"Brownfields Of Dreams?": Challenges And Limits Of Voluntary Cleanup Programs And Incentives, Joel B. Eisen

Law Faculty Publications

As one of the most important current topics in environmental law, the redevelopment of abandoned or underutilized urban properties, better known as brownfields, continues to generate much discussion and debate. Because most agree that abandoned sites located in aging areas and the accompanying exodus of industry to the suburbs are undesirable, the federal government and many state governments have created programs to encourage the redevelopment of these industrial properties. But often overlooked by the advocates of such programs are the difficult political, scientific, and moral questions associated with redevelopment. In this insightful article, Professor Eisen provides the most comprehensive discussion …

In Search Of Accountability: The Legislative Re-Invention Of Environmental Law And Policy In Indiana, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Introduction: Policy In The Wake Of The Kepone Incident, Joel B. Eisen

Law Faculty Publications

The goal of this panel was to examine the policies formed in the wake of the Kepone incident: the environmental laws, the regulations and policies that are designed to safeguard our natural resources to ensure that incidents such as the Kepone incident do not reoccur and if they do, to hold those responsible for environmental damage accountable for their actions.

Northern Rockies Report On 1994 Natural Resources Legislation, Carl W. Tobias

Law Faculty Publications

I want to report on certain political developments in the Big Sky states which will help to illuminate why 1994 was such a dismal year for national legislation relating to Montana natural resources by emphasizing the ongoing wilderness debate. Representative Pat Williams (D-Mont.), who fist won election to the House of Representatives in 1978, developed, introduced and skillfully shepherded through the House a wilderness bill that would have created approximately 1.7 million acres of new wilderness. The legislation would also have released much land for multiple use, particularly for resource development, and would have designated considerable additional acreage for further …

Applying Pesticides: Toward Reconceptualizing Liability To Neighbors For Crop, Livestock And Personal Damages From Agricultural Chemical Drift, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Toward A Sustainable Urbanism: Lessons From Federal Regulation Of Urban Stormwater Runoff, Joel B. Eisen

Law Faculty Publications

This Article focuses on the particularly vexing challenge of forging a sustainable urbanism in Edge Cities and analyzes regulatory attempts to control urban stormwater runoff. If our task is to "describe the natural world and to evaluate our actions toward it in ways that presuppose ... [a] community between nature and mankind," we must also characterize and address this source of considerable pollution, which originates from thousands of dispersed locations. Unfortunately, environmental protection efforts have only begun to address the pollution of urban stormwater runoffs. Parts II and III of this Article detail these largely unsuccessful attempts and conclude that …

Losing The Littoral Zone, Carl W. Tobias

Law Faculty Publications

Review of John Stilgoe, Alongshore (1994)

Elevated Pleading In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark.

The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and …

"Turning Point": The Foundering Of Environmental Law And Policy In Indiana?, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

The Logic And Limits Of Public Information Mandates Under Federal Hazardous Waste Law: A Policy Analysis, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Criminal Prosecutions In Environmental Law: A Study Of The "Kepone" Case, Ronald J. Bacigal, Margaret I. Bacigal

Law Faculty Publications

The effectiveness of criminal prosecutions in the environmental law area is often disparaged. Some commentators suggest that corporate behavior is not significantly affected by criminal convictions because fines that are adequate to deter individual pollutors often have little impact on multi-million dollar corporations. Such a contention, however is challenged by the history surrounding the prosecution of the Allied Chemical Corporation for the pollution caused by the pesticide Kepone. The successful prosecution of the Kepone case dramatically altered Allied's corporate behavior had a significant impact on legislative and administrative inspection schemes, and led to the establishment of an endowment for improvement …

Taking Precedents In The Tidelands: Refocusing On Eminent Domain, W. Wade Berryhill

Law Faculty Publications

The focus of this article is on the state's power of eminent domain as a means of controlling the use of scarce coastal resources. However, in order to determine whether this rather drastic exercise of governmental power is the most appropriate means of effecting its purposes, the state or its delegate must consider the alternatives. This article therefore will first examine briefly other possible means of control; it will then discuss the substantive and procedural requirements of eminent domain; and finally, it will consider problems of post-acquisition resource management.

Of Crabbed Interpretations And Frustrated Mandates: The Effect Of Environmental Policy Acts On Pre-Existing Agency Authority, Carl W. Tobias, Daniel N. Mclean

Law Faculty Publications

When Congress passed the National Environmental Policy Act (NEPA) in 1969, the legislation was acclaimed as one of the most important environmental measures ever enacted. States soon followed the federal lead, so that by 1976 thirty jurisdictions had adopted statutes similar to the national legislation. The Montana legislature was in the vanguard, passing the Montana Environmental Policy Act (MEPA) in 1971.

The federal agencies now appear to have accepted full responsibility for implementation of NEPA, despite some initial reluctance. Several agencies contended at first that the statute did not authorize them to consider in decisionmaking any environmental factors not expressly …

Guaranteeing Solar Access In Virginia, W. Wade Berryhill

Law Faculty Publications

This article will address in order: the mechanics of a solar energy system; the problem of solar access; the traditional public and private remedies available at common law; Virginia's legislative response to the problem of assuring solar access; and some suggestions for the resolution of anticipated solar access conflicts in Virginia.