Law Commons^™

Book Review, Environmental Law And Sustainability After Rio, David Wirth

David A. Wirth

Review of an accessible collection of essays from around the world, offering insights into legal and political issues surrounding environmental law and sustainability.

Legalising Environmental Leadership: A Comment On The Cjeu's Ruling In C-366/10 On The Inclusion Of Aviation In The Eu Emissions Trading Scheme, Sanja Bogojevic

Sanja Bogojević

This article examines the recent judgment in case C-366/10 in which the CJEU upheld the widened scope of the EU Emissions Trading Scheme, to include aviation, against a challenge by US airlines. At the core of this case stands the question of the extent to which, if at all, the EU is allowed to unilaterally control greenhouse gas emissions from aviation given that to date these are unregulated at an international level. As such, this is a case concerning the legitimacy of regional regulatory responses to global institutional failings. What the court does is to legitimise EU’s leading role in …

Evaluating Rules And How We Measure Their Effects, Rena I. Steinzor, Michael Patoka

Rena I. Steinzor

The Center for Progres­sive Reform undertook an empirical study of the Office of Information of Regulatory Affairs, the White House office that reviews every significant regulation issue by Executive Branch agencies. The study assembled an unprecedented portrait of its behav­ior during the decade from October 16, 2001, when notices of meetings with outside parties were first available on the Internet, until June 1, 2011. OIRA conducted 6,194 separate reviews of regulatory submissions, holding 1,080 meetings that involved 5,759 ap­pearances by outside par­ticipants. Both the final report and the database we assembled are available on the CPR website, at pro­gressivereform.org. OIRA …

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Michael Pappas

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

Protecting Coastal And Estuarine Resources- Confronting The Gulf Between The Promise And Product Of Environmental Regulation , Robert V. Percival

Robert Percival

No abstract provided.

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Robert Percival

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider An Inter-Sovereign Approach To Accommodate Federal And Tribal Interests In Water Resources, Jeffrey T. Matson

Jeffrey T Matson

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of …

The Unfinished Story Of The Rio Plus 20 Conference, John Dernbach

John C. Dernbach

Reporting on the 2012 U.N. Conference on Sustainable Development (or Rio+20 conference) has generally followed two lines: the conference was essentially a failure because of its tepid official response to the enormous and related problems of global environmental degradation and global poverty; and the conference successfully managed to mobilize hundreds of voluntary commitments and at least $513 billion for specific sustainability goals. A third story line has received little attention, however, and may redeem the account of official failure. This article addresses that story line, reviewing a series of processes set in motion by the parties to the conference that …

The Law Of Words: Standing, Environment, And Other Contested Terms, David Cassuto

David N Cassuto

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective …

Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto

David N Cassuto

This Article examines the evolution of EPA's audit policy, explores the reasons for states' dissatisfaction with it, and then discusses whether the federal policy should have been issued as a rule under the Administrative Procedure Act (APA). Part I examines the evolution of the federal audit policy and then analyzes the strengths and weaknesses of the policy in its current form. Part II explores various types of evidentiary privilege and looks at the arguments for and against extending the privilege to audit reports. It then offers a similar analysis of the case for limited immunity, concluding that neither an expanded …

It Takes A Global Sustainability Movement, John C. Dernbach

John C. Dernbach

No abstract provided.

Fairness In The Bay: Environmental Justice And Nutrient Trading, Rena I. Steinzor, Robert R.M. Verchick, Nicholas W. Vidargas, Yee Huang

Rena I. Steinzor

Maryland, Virginia, Pennsylvania and other states in the Chesapeake Bay region, with support from the Environmental Protection Agency, are working toward developing water quality trading programs intended to help meet federal pollution limits for the Bay. This white paper from the Center for Progressive Reform warns that even if a trading system succeeds in reducing overall pollution in the Bay, it might still have a dire effect on low-income and minority communities in the Bay region. If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a …

Agricultural Secrecy: Going Dark Down On The Farm: How Legalized Secrecy Gives Agribusiness A Federally Funded Free Ride, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This briefing paper examines the agricultural secrecy granted by section 1619 of the 2008 Farm Bill, its implications for transparency and oversight, and its impact on other federal agencies such as the U.S. Environmental Protection Agency (EPA). In an era of fiscal responsibility, tight budgets, and increasing pressure on the environment, the public has a right to know whether the U.S. Department of Agriculture (USDA) is making the best decisions about how to allocate public funds. Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, …

Setting The Bar For "Injury" In Environmental Exposure Cases: How Low Can It Go?, John C. Cruden, Carla Burke, John Guttmann, Robert V. Percival

Robert Percival

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of "injury" in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included …

Cercla In A Global Context, Robert V. Percival, Katherine H. Cooper, Matthew M. Gravens

Robert Percival

The article first reviews the essential features of CERCLA and how they have evolved over time through legislative amendments and judicial interpretation. The article then compares CERCLA's approach to that embodied in the European Union's 2004 Directive on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage ("ELD:). It then reviews the laws adopted by various countries, including EU members, to respond to releases of hazardous substances. The article then discusses several case studies of how different countries handled incidents of environmental contamination. It concludes by summarizing the comparative law of environmental remediation and its implications for …

Book Review: Environmental Protection And Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

This article reviews Environmental Protection and Human Rights (Cambridge University Press, New York 2011), a textbook co-authored authored by Donald K. Anton and Dinah L. Shelton. The book examines the growing recognition by scholars, activists, governments, and international and domestic tribunals of the linkages between environmental protection and human rights. Although intended for use as a law school textbook and accompanied by five online problem-oriented case studies, this comprehensive volume will also serve as a valuable reference for scholars and practitioners as well as an excellent survey for newcomers to the field.

American Electric Power Company, Inc. V. State Of Connecticut: Brief Of Law Professors As Amici Curiae In Support Of Respondents, Stuart Banner, James R. May

James R. May

No abstract provided.

Vindicating Environmental Rights: Constitutional Protection For Present & Future Generations, Erin Daly, James May

James R. May

Our presentations will chronicle and assess the jurisprudential dimensions of constitutional environmental rights worldwide, encapsulating the preliminary findings of our book, Vindicating Environmental Rights: Constitutional Protection for Present & Future Generations, Cambridge, 2013), especially pertaining to provisions regarding rights to water, and procedural rights.

The constitutions of about 160 nations address environmental matters in some fashion, some by committing to environmental stewardship or the rights of nature, others by recognizing a basic right to a quality environment and still others by ensuring a degree of public participation in environmental decision making. Most people on Earth live under constitutions that protect …

The Role Of Controversy In Nepa: Reconciling Public Veto With Public Participation In Environmental Decisionmaking, William Murray Tabb

William M. Tabb

No abstract provided.

Law, Ecosystem Valuation And Risk Allocation, David Hodas

David R. Hodas

Assigning a precise economic value to a non-market ecosystem service or environmental externality that damages an ecosystem or human health and welfare is challenging. However, if we tie fairness and equity to getting the “prices” exactly right, the best will become the enemy of the good and we will sacrifice ecosystem services on the alter of excessive exactness. In terms of equity and ecosystem services, the precision of any particular monetized value is less important than that there be a value, and that the value is incorporated into legal and policy decisions. Existing legal models and institutional frameworks were not …

A Global Law Of Sustainable Energy, David Hodas

David R. Hodas

The 1992 United Nations Conference on Environment and Development adopted the Rio Declaration on Environment and Development and Agenda 21 as the core principles and a program of action to achieve sustainable development; neither addressed energy as a central theme. In 2002, sustainable energy was a central theme at the World Summit on Sustainable Development and was addressed in detail in the Johannesburg Plan of Implementation. However, in 2012, neither climate change nor sustainable energy will be on Rio+20’s agenda. Ironically, 2012 is the U.N. International Year of Sustainable Energy For All. Rio+20 and the International Year are only loosely …

When Will America, World Make Sustainability A Priority?, John Dernbach

John C. Dernbach

No abstract provided.

Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang

Rena I. Steinzor

Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny. For example, Maryland charges less than Pennsylvania and Virginia for some pollutant discharge permits, and the state does not assess permit fees for municipalities despite the resources required to administer those permits. The penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. Maryland law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in …

Water Quality Trading In The Chesapeake Bay, Rena Steinzor, Nicholas Vidargas, Shana Jones, Yee Huang

Rena I. Steinzor

In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on Bay cleanup. The following year, EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a pollution budget for Bay states. Faced with a federal commitment, the states have begun work on complying with the TMDL. One Bay-wide approach under consideration is a market-based initiative, water quality trading, that would allow polluters to trade …

Manure In The Bay: A Report On Industrial Animal Agriculture In Maryland And Pennsylvania, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This report provides a substantive and detailed look at the concentrated animal feeding operations (CAFO) and other animal feeding operations (AFO) programs in Maryland and Pennsylvania, as well as a general overview of the federal CAFO program. The information in this report was gathered through publicly available resources as well as a series of interviews with agency officials and other individuals who work with the animal agricultural sector. This report identifies concrete and practical recommendations for improving how the waste generated by animal industrial agriculture is managed and controlled by EPA, the Maryland Department of Environment (MDE), and the Pennsylvania …

Acting As If Tomorrow Matters: Accelerating The Transition To Sustainability, John Dernbach

John C. Dernbach

No abstract provided.

An Environmental Legal Practitioner’S Guide To Epa’S Website, Taryn L. Rucinski

Taryn L. Rucinski

Amidst the birth of the United States (U.S.) environmental movement of the twentieth century, one of the most important and far reaching developments in terms of the federal government was the creation of the U.S. Environmental Protection Agency (EPA), an agency whose sole purpose was to ensure the protection, development, and enhancement of the natural environment. Since its birth in 1970, the EPA has grown from a relatively small, underfunded department to one of the largest independent agencies within the federal government, with regulatory responsibilities running the gamut from household cleaners to drinking water, to waste disposal and beyond. However, …

Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo

Mary Jane Angelo

In recent years, there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. U.S. environmental law has not evolved to keep pace with these dramatic changes in the evolution of our biological systems. Thus, completely new approaches are needed …

The Killing Fields: Reducing The Casualties In The Battle Between U.S. Species Protection Law And U.S. Pesticide Law, Mary Jane Angelo

Mary Jane Angelo

For the past 35 years, the conflicting goals, standards, focuses, and methods of United States species protection laws and United States pesticide law have produced a fierce legal battle. The unwitting casualties of this battle are the millions of birds, fish, and other wildlife that have been killed, and the hundreds of protected species put at risk of extinction. This battle has intensified in recent years, as environmental organizations have sued the United States Environmental Protection Agency ("EPA") for its continued failure to comply with the Endangered Species Act ("ESA"). In response, EPA has invoked numerous legal and regulatory strategies, …

Embracing Uncertainty, Complexity, And Change: An Eco-Pragmatic Reinvention Of A First-Generation Environmental Law, Mary Jane Angelo

Mary Jane Angelo

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, bird and wildlife species as well as ecosystem services, are in unprecedented decline. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carry out its mission of environmental protection. A number of recently-filed lawsuits assert that the registration of certain pesticides violates the federal Endangered Species Act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, which fueled the environmental movement of the late 1960s and early 1970s, largely have been …