Law Commons^™

Tick Toxic: The Failure To Clean Up Tsca Poisons Public Health And Threatens Chemical Innovation, Kristen Ekey

William & Mary Environmental Law and Policy Review

No abstract provided.

Articulating Moral Bases For Regional Responses To Deforestation And Climate Change: Africa, Amelia Chizwala Peterson

William & Mary Environmental Law and Policy Review

Deforestation and desertification, archenemies of efforts to maintain forests as sinks for greenhouse gas emissions, are marching on unabated in Africa, where 90 percent of forests were lost in West Africa over the last century alone. Wangari Maathai, founder of the Green Belt Movement, whose work to restore some of Kenya’s decimated forests predates the connections made by the climate science community between deforestation and climate change, wrote:

Today we are faced with a challenge that calls for a shift in our thinking, so that humanity stops threatening its lifesupport system. We are called to assist the Earth to heal …

Good Vibrations: The Push For New Laws And Industry Practices In American Instrument Making, Patrick Genova

William & Mary Environmental Law and Policy Review

No abstract provided.

"Soaring" Gas Prices: Policy Considerations For The European Union Emissions Trading System And Aviation, Kaylin Gaal

William & Mary Environmental Law and Policy Review

No abstract provided.

Dying For A Solution: Incidental Taking Under The Migratory Bird Treaty Act, Andrew G. Ogden

William & Mary Environmental Law and Policy Review

The almost century-old Migratory Bird Treaty Act (“MBTA”) is straining to fulfill its statutory purpose of protecting migratory birds from the changing and growing threats of a modern industrial society. With approximately 600 million bird deaths per year from a host of anthropogenic activities and infrastructure, including alternative energy projects, oil and gas development, antennas, power lines and buildings, migratory bird populations are under stress that will increase significantly in the near future from a momentous growth in wind energy activity.

Since the 1970s, the Fish and Wildlife Service (“FWS”) has attempted to reconcile the MBTA’s conservation policy and strict …

Mandatory Settlements In Cercla Enforcement: Fixing A Broken System By Removing The Courts, Brian Carrico

William & Mary Environmental Law and Policy Review

No abstract provided.

See Repose Run: Setting The Boundaries Of The Rule Of Repose In Environmental Trespass And Nuisance Cases, Jill E. Evans

William & Mary Environmental Law and Policy Review

Application of the rule of repose to environmental contamination claims for trespass and nuisance will preclude recovery for plaintiffs who discover the harm or injury outside the repose period. The rule of repose is subject neither to the discovery rule or other equitable tolling devices and runs from the date of the defendant’s culpable conduct. As a consequence, the rule extinguishes claims regardless of accrual of the cause of action. Environmental plaintiffs suffering property damage are particularly vulnerable to the repose bar as harm can occur over many years through the migration of unseen contaminants. Operation of the rule of …

Environmental Abuses In Nigeria: Implications For Reproductive Health, Violet Aigbokhaevbo, Nkoli Aniekwu

Annual Survey of International & Comparative Law

The prevalence of abusive environmental practices in Nigeria and the impunity with which they are perpetuated has generated increased concern globally and among the populace. Reproductive health and environmental health are intertwined. There has been increased concern about the adverse impact of environmental contaminants on fertility and reproduction. For example, epidemiological studies indicate that environmental exposure to endocrine disrupting chemicals is associated with human diseases and disabilities. Such exposure to environmental contaminants can be through air, water, land, and the workplace. In Nigeria, infant and maternal health prospects are still shrouded in controversy due to the unreliability of data and …

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Seattle University Law Review

Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely determine …

Practical Alternatives For Silvicultural Pollution Reduction In Light Of Decker V. Nedc, Erin Anderson

Washington Journal of Environmental Law & Policy

Decker v. Northwest Environmental Defense Center is a recently decided Supreme Court case that originated in the forests of Oregon. Frustrated by the level of pollution in Oregon rivers that was originating from logging roads, an environmental group sued the State to enforce the Clean Water Act and require Oregon to issue National Pollutant Discharge Elimination System (NPDES) permits for the pollution. The Supreme Court held that the Environmental Protection Agency’s (EPA) decision to exclude water pollution from logging roads from NPDES permitting was entitled to deference, reversing the Ninth Circuit’s decision that such pollution required NPDES permits under the …

Washington Environmental Law Year In Review, Abigail Pearl, Hunter Elenbaas

Washington Journal of Environmental Law & Policy

We are proud to present the first installment of the Washington Environmental Law Year in Review. This feature, which will be published annually in the Fall issue, will track significant developments in the environmental laws and regulations of Washington, and present a summary of these changes organized by topic.

Making Science Useful In Complex Political And Legal Arenas: A Case For Frontloading Science In Anticipation Of Environmental Changes To Support Natural Resource Laws And Policies, Usha Varanasi

Washington Journal of Environmental Law & Policy

In the spirit of fostering interdisciplinary dialogue, the Washington Journal of Environmental Law and Policy is proud to present this Article. Professor Varanasi takes examples from her career as a fisheries scientist for the National Oceanographic and Atmospheric Administration to argue for a new model for ecological disaster planning and response, in which baseline ecosystem data is collected in advance of possible incidents so that decision-makers are empowered to make informed choices from the first stages of disaster response. She concludes by urging sustained and targeted funding for long-term ecosystem data collection to better understand various disasters’ effects on a …

A Sinking Ship: Epa Regulation Of The Navy Training Program Sinkex Under The Ocean Dumping Act And The Toxic Substances Control Act, Laura Zippel

Washington Journal of Environmental Law & Policy

The EPA currently regulates the Navy program Sink Exercise (SINKEX) under a permit issued under the Ocean Dumping Act. The Navy regards SINKEX as both a “live fire exercise,” important for the training of sailors in tactics and operations, and as a ship disposal program. Due to the toxic materials used to construct the derelict ships–including PCBs, asbestos, and lead–a case was filed in San Francisco District Court alleging that the EPA is required to regulate and permit SINKEX under the Toxic Substances Control Act (TSCA). This comment addresses the complexities arising from EPA permitting of SINKEX, including a comparison …

Legal Hurdles Faced By Deep Green Buildings: Case Studies And Recommendations, Kathleen O'Brien, Nicole Denamur, Elizabeth Powers

Washington Journal of Environmental Law & Policy

The recent emphasis on building design, construction, and performance has revealed legal challenges and risks an owner or project team may face when attempting to construct a “deep green” building. The intent of this article is to encourage and facilitate the development of deep green and high performing buildings by reducing perceived and actual risks as well as challenges associated with their development, construction, and operation. This article explores these risks and challenges through a discussion of specific examples from two case study projects located in Seattle, Washington. These examples are arranged in two broad categories: (1) the process of …

"We Can Lead": Washington State's Efforts To Address Ocean Acidification, Amanda M. Carr

Washington Journal of Environmental Law & Policy

The world’s oceans have become approximately thirty percent more acidic since the Industrial Revolution and are currently acidifying at a rate ten times faster than anything the earth has experienced over the last fifty million years. Washington State is undertaking a groundbreaking effort to address ocean acidification, a global issue that has serious implications for the world’s oceans, marine ecosystems, and the individuals and communities that depend upon the services that they provide. These localized actions, in isolation, will be insufficient to effectively combat and adapt to the acidification of marine waters. While acknowledging this generally accepted premise, Washington has …

Anderson Brothers, Inc. V. St. Paul Fire And Marine Insurance Co., Katelyn J. Hepburn

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit considered whether a letter from the EPA notifying a party of potential liability under CERCLA is a “suit,” triggering an insurance company’s duty to defend. Applying Oregon contract law, the Ninth Circuit affirmed the decision of the United States District Court for the District of Oregon, stating that the letters from the EPA were “functional equivalents” to a suit under the insured’s policy and the insurer’s denial to defend was a breach of the policy.

Orbital Debris: Out Of Space, Meghan R. Plantz

Georgia Journal of International & Comparative Law

No abstract provided.

Saving The Trees One Constitutional Provision At A Time: Judicial Activism And Deforestation In India, Lennon Banks Haas

Georgia Journal of International & Comparative Law

No abstract provided.

Alaska Wilderness League V. U.S. Epa, Maxwell Kirchhoff

Public Land & Resources Law Review

In this case, the Ninth Circuit deferred to the EPA’s interpretation of a statute concerning whether increment requirements were applicable to a temporary source pollutant. The court held that Shell Offshore, Inc. was not required to analyze the potential impact of an offshore drill barge, the Kulluk, under the Clean Air Act. Additionally, the plaintiffs’ challenge concerning the Kulluk's impact on ambient air was defeated pursuant to Resisting Environmental Destruction on Indigenous Lands, REDOIL v. EPA.

City Of Livingston V. Park Conservation District, Graham Coppes

Public Land & Resources Law Review

On appeal from the Park County District Court, the Montana Supreme Court upheld the Park Conservation District’s designation of a channel of the Yellowstone River near the City of Livingston as part of the natural course of the river as reasonable and worthy of judicial deference, even though the record demonstrated that the channel had been continuously used as an irrigation conveyance system and local parties had historically referenced the stream with inconsistent characterizations. Looking ahead, this decision illustrates the Court’s strong deference to the resolutions and statutory interpretations of the state’s local conservation districts. To a lesser degree, the …

The Role Of Civil Society In Environmental Governance In The United States And China, Robert V. Percival, Zhao Huiyu

Duke Environmental Law & Policy Forum

No abstract provided.

Urban Agriculture & The Modern Farm Bill: Cultivating Prosperity In America’S Rust Belt, Amy E. Mersol-Barg

Duke Environmental Law & Policy Forum

No abstract provided.

The Role Of China’S Banking Sector In Providing Green Finance, Yuwen Bai, Michael Faure, Jing Liu

Duke Environmental Law & Policy Forum

No abstract provided.

The Decline And (Possible) Renewal Of Aspiration In The Clean Water Act, Robert W. Adler

Washington Law Review

In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward …

The Importance Of Being Factual: The U.S., China, And The Future Of The Kyoto Protocol, Aarthi S. Anand

Duke Environmental Law & Policy Forum

By most accounts, the December 2012 Doha Round negotiations achieved little. The continued failure of member governments to reach consensus increases the risk of a catastrophic rise in global emissions. The current impasse is due in no small measure to the expressed concern of the United States that a climate change treaty will end up transferring enormous wealth from the United States to China.

Analyzing the relevant market data, this Article concludes that there is little or no evidence to support the notion that ratification of the Kyoto Protocol will lead to the massive wealth transfers feared by the United …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Duke Environmental Law & Policy Forum

No abstract provided.

The Wal-Mart Effect On Organics: A Defense Of Large-Scale Organic Production, Julia Johnson

Duke Environmental Law & Policy Forum

No abstract provided.

Conservation Congress V. U.S. Forest Service, Katelyn J. Hepburn

Public Land & Resources Law Review

This case involves challenges to the adequacy of the United States Forest Service’s biological assessment authorizing a timber sale in the Shasta-Trinity National Forest of Northern California. The plaintiff requested an injunction under the Endangered Species Act (“ESA”) alleging that the Forest Service failed to adequately evaluate the effects the timber sale could have on the northern spotted owl’s critical habitat. The Ninth Circuit affirmed the District Court for the Eastern District of California, finding that the Forest Service’s actions did not violate the ESA and that the ESA imposes a lesser requirement than the National Environmental Policy Act (“NEPA”) …

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

The Constitutionality Of California's Cap-And-Trade Program And Recommendations For Design Of Future State Programs, Thomas Alcorn

Michigan Journal of Environmental & Administrative Law

Global climate change has emerged as one of the greatest challenges of our time. While action has stalled on the national stage, states have started to take action to reduce their greenhouse gas emissions. Confronted with the risk of severe impacts that could cost it tens of billions of dollars annually by the end of the century, California has taken the lead and developed the first comprehensive cap-and-trade program in the nation and seeks to achieve significant reductions in the greenhouse gas emissions associated with its economy. The success of California’s program will determine whether other states and the federal …