Law Commons^™

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen, Madeline Gottlieb, Joshua Linn, Nathan Richardson

Vanderbilt Law Review

Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by a firm; and (2) there may be principal-agent …

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen

Vanderbilt Law Review

Nathan Richardson 64 Vand. L. Rev. 1853 (2011) Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by …

How States Can Affect Federal Deepwater Port Lng Licensing Decisions: A Case Study Involving The Deepwater Port Act And The Coastal Zone Management Act, Linda Krop

Golden Gate University Environmental Law Journal

This Article explores the general role of coastal states in permitting offshore LNG terminals, and the specific role that California played in the licensing process for the proposed Cabrillo Port LNG project. There are many facets of state authority, including the approvals required for the portions of LNG projects located within a coastal state’s jurisdiction (primarily within the first three miles offshore), the application of state laws to proposals to construct offshore LNG facilities under the DWPA, the authority of the governor of the adjacent coastal state to approve or “disapprove” deepwater port projects, and the right of a coastal …

The Cape Wind Offshore Wind Energy Project: A Case Study Of The Difficult Transition To Renewable Energy, Kenneth Kimmell, Dawn Stolfi Stalenhoef

Golden Gate University Environmental Law Journal

This article presents the story of one renewable energy alternative that is available wherever the wind blows strong and steady. If that alone is not sufficient enticement to read further, the authors also promise to present one of the most engaging permitting sagas ever known to this field. Indeed, the Cape Wind Energy project was held captive by the permitting process for nearly a decade – in stark contrast to numerous offshore oil projects – due to the imposition of disproportionally rigorous regulatory scrutiny and the dogged political pressure applied by a few wealthy homeowners with ocean views in the …

Riding The Wave: Confronting Jurisdictional And Regulatory Barriers To Ocean Energy Development, Danielle Murray, Christopher Carr, Jennifer Jeffers, Alejandra Núñez-Luna

Golden Gate University Environmental Law Journal

This Article provides a brief history of wave energy development, examines the status of hydrokinetic projects undertaken at a state and local level, and navigates the overlapping, and often competing, jurisdictional mandates confronting U.S. project developers. It also explores lessons learned from the European Union’s (EU) recent regulatory experience and provides recommendations for short- and long-term steps forward in the United States. Part II discusses early wave energy projects, research and policy developments, and highlights recent advances in technical testing and economic feasibility of wave energy projects. Part III analyzes the status of hydrokinetic energy development at the state and …

Siting Offshore Hydrokinetic Energy Projects: A Comparative Look At Wave Energy Regulation In The Pacific Northwest, Rachael Salcido

Golden Gate University Environmental Law Journal

This Article considers the approaches that Oregon, California, and Washington have taken to address the need for additional renewable energy while also undertaking a shift to comprehensive ocean management. Discussion of offshore federalism, a component of the opportunities and challenges of this nascent industry, is highlighted at various points. The Memoranda of Understanding that these coastal states have entered into with the Federal Energy Regulatory Commission have been central to facilitating hydrokinetic energy development. While each state has taken a slightly different approach to folding wave energy into its alternative energy and marine management agendas, the progress made is encouraging …

The Deepwater Horizon Oil Spill Trust And The Gulf Coast Claims Facility: The “Superfund” Myth And The Law Of Unintended Consequences, Alfred R. Light

Golden Gate University Environmental Law Journal

Two months after the April 2010 Deepwater Horizon explosion, BP and the Obama White House announced the creation of the $20 billion Deepwater Horizon Oil Spill Trust (“the Trust”) to pay individuals and businesses suffering losses arising from the disaster. Although BP initially paid certain claimants, Kenneth R. Feinberg, a Washington lawyer who previously administered the 9/11 Compensation Fund, opened the Gulf Coast Claims Facility (“the Facility” or GCCF) in August to “independently” resolve disaster claims against BP. As publicly advertised, the Facility and the $20 billion Trust, to which it has access to pay claims, are designed to address …

Restructure And Reform: Post-Bp Deepwater Horizon Proposals To Improve Oversight Of Offshore Oil And Gas Activities, Leila Monroe

Golden Gate University Environmental Law Journal

This Article chronicles the multiple reviews that were conducted into the BP oil spill, in an attempt to understand the flaws in government management and oversight that allowed this disaster to occur. It endeavors to distill the key recommendations produced by numerous reviewers related to improving DOI’s management and oversight of offshore oil and gas exploration and development activities. Although they are also critically important topics, each with identified opportunities for improvement, it is not within the scope of this Article to provide an in-depth discussion of industry culture and practice, technological failures, oil spill response, or spill restoration.

Part …

A Regulatory Wake-Up Call: Lessons From Bp’S Deepwater Horizon Disaster, Rebecca M. Bratspies

Golden Gate University Environmental Law Journal

In learning from the BP disaster, there are two levels at which to understand what happened, and two kinds of lessons to draw: straightforward and complex. The straightforward lesson focuses on BP as a distinct entity, emphasizing the company’s culpability for its poor decisions. The complex lesson does not deny BP’s culpability but seeks to situate BP’s private actions within a broader regulatory context in order to identify systemic failures that contributed to the disaster.

This Article delves into both sets of lessons, concentrating more on the “complex” explanation, which involves recognizing gaps in the statutory scheme and conflicts in …

Pricing Pelicans And Petrol: In Introduction To The Issue, Paul Stanton Kibel, Angela Haren Kelley

Golden Gate University Environmental Law Journal

No abstract provided.

Masthead - Vol. 5 #1

Golden Gate University Environmental Law Journal

No abstract provided.

Regulations Of Hydraulic Fracturing Under The Safe Drinking Water Act, Keith B. Hall

Buffalo Environmental Law Journal

For more than 20 years after the 1974 enactment of the Safe Drinking Water Act ("SD WA ), the US. Environmental Protection Agency interpreted the SDWA as not applying to hydraulic fracturing. The United States Eleventh Circuit ruled in 1997 that the SDWTA applied to fracturing, but the EPA chose not to consent to that interpretation outside the Eleventh Circuit. Further the EPA continued to take the position that its existing SDWTA regulations did not apply to hydraulic fracturing, and it never promulgated new regulations to cover fracturing. In 2005, the Congress passed legislation that generally is read as applying …

Reconsidering The Use Of Forced Pooling For Shale Gas Development, Lindsey Trachtenberg

Buffalo Environmental Law Journal

Hydrocarbons can be produced more efficiently ihen neighboring landowners work in cooperation, rather than in competition. Yet market failures often make it difficult for landovners and the well operators iwith whi om they contract to reach agreements for the cooperative development of hy drocarbon reservoirs. Therefore, some states have enacted forced pooling provisions, vhich allow states to compel cooperative development under certain criteria. While forced pooling is generally acceptable for traditional oil and gas resources, state legislatures and regulators should reassess their forced pooling provisions as they are applied to shale gas resources. Based on the unique characteristics of shale …

An Ecosystem-Based Approach To Slowing The Synergistic Effects Of Invasive Species And Climate Change, David A. Strifling

Duke Environmental Law & Policy Forum

No abstract provided.

Beyond Absurdity: Climate Regulation And The Case For Restricting The Absurd Results Doctrine, Katherine Kirklin O'Brien

Washington Law Review

The absurd results doctrine of statutory interpretation allows courts to depart from clear legislative text when a literal reading would be “absurd.” Traditionally, courts defined an absurd result as one that offends fundamental social values. Over time, however, courts have expanded the concept of legal absurdity to include outcomes that do not violate moral principles, but instead present regulatory burdens deemed too onerous to reflect congressional intent. In June 2010, the U.S. Environmental Protection Agency (EPA) invoked this expansive reading of the absurd results doctrine to support a regulation known as the “Tailoring Rule,” which the agency promulgated as part …

The Limits Of Liability In Promoting Safe Geologic Sequestration Of Co2, David E. Adelman, Ian J. Duncan

Duke Environmental Law & Policy Forum

No abstract provided.

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Duke Environmental Law & Policy Forum

No abstract provided.

Innovations In Governance: A Functional Typology Of Private Governance Institutions, Tracey M. Roberts

Duke Environmental Law & Policy Forum

No abstract provided.

The Justiciability Of Climate Change: Acomparison Of Us And Canadian Approaches, Hugh Wilkins

Dalhousie Law Journal

Climate change-related disputes, which often include novel, complex,or politically sensitive matters, have experienced a mixed reception by the courts. Defendants both in Canada and the United States have raised the issue of justiciabilitythe question of whether a matter is of the quality or state of being appropriate or suitable for review by a court-with some success in attempts to have these cases summarily dismissed. The author reviews the types ofclimate change cases that have been launched, examines the US and Canadian laws of justiciability analyzes the.paths in which the caselaw regarding justiciability in these countries is headed, and suggests how …

Global Law And The Environment, Robert V. Percival

Washington Law Review

This Article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …

Earth Jurisprudence And Lockean Theory: Rethinking The American Perception Of Private Property, Traci Lynne Timmons

Environmental and Earth Law Journal (EELJ)

Earth Jurisprudence and Lockean Theory

Abstract by Traci Lynne Timmons

Thomas Berry, father of the Earth Jurisprudence movement, called for re-examining human-Earth relations. Earth Jurisprudence aspires to promote a greater respect for nature and all living things on Earth, aiming to intertwine Earth’s natural law with the body of law that governs humanity. This paper explores Earth Jurisprudence as an alternative to the property regime in the United States. It examines the fundamental principles of property ownership, frequently attributed to the philosophy of John Locke, but digs deeper into these “Lockean” roots to reveal important caveats to Locke’s general principles …

The Wilderness Myth: How The Failure Of The American National Park Model Threatens The Survival Of The Iyaelima Tribe And The Bonobo Chimpanzee, Mark Hopson

Environmental and Earth Law Journal (EELJ)

The Wilderness Myth

Abstract by Mark Hopson

Contrary to popular opinion, and the vast majority of legal scholarship on the subject, the traditional American model for a national park is scientifically and logically unsound. Further, this model has been adopted at a terrible social cost to the indigenous tribes who lived on the land that became national parks. Every government that has chosen to implement the American national park model has done so at the expense of indigenous people.

This article chronicles the creation of the world’s first national parks, Yosemite and Yellowstone, and the legal battles involved. The article …

Human Rights And Climate Change, Marc A. Schulz

Buffalo Human Rights Law Review

Book review of Human Rights and Climate Change, Stephen Humphreys, ed.

Legal Developments Since The Enactment Of The Oil Spill Liability Act Of 1990, Jay Angle, Anna Leonenko, Katelyn Overmiller, Rebecca Ternes, Katie Wagner, Kenneth Stark

Penn State Environmental Law Review

No abstract provided.

Addressing Environmental Injustices: A Capability Approach To Rulemaking, Shannon M. Roesler

West Virginia Law Review

No abstract provided.

Looking Backward From The Year 2099: Ecozoic Reflections On The Future, Samuel Alexander

Environmental and Earth Law Journal (EELJ)

Looking Backward from the Year 2099: Ecozoic Reflections on the Future

Abstract by Samuel Alexander

Story, myth, and narrative played a central role in Thomas Berry’s writings. He told new stories about the Universe and our place in it, stories not only about where we have been and where we seem to be going, but also stories about where we could go, if only we exercised our freedom in different ways. Inspired by Berry, in this paper I have dared to experiment with story, by attempting to look back on the 21st century from the vantage point of the year …

Evolving From Dominion To Communion: How Legal Rights For Nature Can Exist In Balance With Individual Property Rights In A Global Commons, Dan Leftwich

Environmental and Earth Law Journal (EELJ)

Abstract coming soon.

Continuing The Great Work: A Tribute To Thomas Berry, Patrick E. Tolan Jr.

Environmental and Earth Law Journal (EELJ)

Continuing the Great Work: A Tribute to Thomas Berry

by Patrick Tolan

Profound scholar and author, Father Thomas Berry, recognized and related human destiny to the destiny of the universe. In his book, The Great Work: Our Way into the Future, and in his teaching, Berry challenged humanity to enter into a new era in harmony with the universe. This article is a tribute to Thomas Berry, recognizing the importance of his contribution to a new and emerging field of Earth Jurisprudence and launching an Earth Jurisprudence and Environmental Justice Journal that will afford thinkers and scholars the opportunity to …

The Cost Of The Bright Red Strawberry: The Dangerous Failure Of Pesticide Regulations To Account For Child Farmworkers, Luthien L. Niland

Golden Gate University Environmental Law Journal

Agriculture is the most dangerous industry for child workers, yet the laws that regulate the work of children in the fields are among the least protective of worker health and safety. This Article examines the failure of U.S. laws and international obligations to protect children from the devastating effects of pesticide exposure. Part II of this Article will explain the presence of children in fields and their heightened vulnerability to pesticides compared to adult farmworkers. In addition, it will discuss the deficiencies in current pesticide laws that result in inadequate protection for child farmworkers. Part III will examine the United …

The Not-So-Green Renewable Energy: Preventing Waste Disposal Of Solar Photovoltaic (Pv) Panels, Genevieve Coyle

Golden Gate University Environmental Law Journal

This Comment provides a background on solar power and PV technology, identifies the toxic components of PV products, and explains how disposal of PV waste poses a threat to the environment. Part II also illustrates how poor management of electronic waste (e-waste) in the U.S. has resulted in environmental pollution - a preventable consequence that can be avoided for the PV industry.

Part III advocates a recycling and life-cycle-management approach to regulation because it provides a more sustainable future for the solar industry. Part IV discusses federal and state hazardous waste regulations and demonstrates how these laws are ineffective to …