Law Commons^™

Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival

Robert Percival

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the …

Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth

David A. Wirth

The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they …

A Jeffersonian Challenge From Tennessee: The Notorious Case Of The Endangered “Snail Darter” Versus Tva’S Tellico Dam—And Where Was The Fourth Estate, The Press?, Zygmunt J.B. Plater

Zygmunt J.B. Plater

From the introduction: For most if not all public interest issues in contemporary governance debates, there are in effect four branches of government, not three. For better or worse, the modern media constitute the essential public information source playing a determinative role in the intensely political internal processes of modern government at every level. To ignore the fundamental reality of this Fourth Estate 1 is not to fully understand modern civics and is to risk repeated shortfalls for citizen initiatives attempting to advance public welfare. In no other field is this proposition more evident than in the realm of governmental …

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.

Limpopo River Basin Monograph, Sergio Sitoe, Peter Qwist-Hoffman

Policy

The purpose of the Limpopo River Basin Monograph Study (LRBMS) is to compile essential baseline information on the Limpopo River Basin. This is required for the preparation of alternative development scenarios and an Integrated Water Resources Management Strategy and Plan (IWRM Strategy and Plan) for the sustainable management of the Basin. Six themes were agreed for the structure of the monograph and each is described below: Basin Characteristics Socio-economy River Basin Ecosystem Water Resources Water Governance LIMIS There are two main elements of the monograph that are the core outputs of the study, and they bring together the information from …

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 …

Cjeu, Can You Hear Me? Access To Justice In Environmental Matters, Sanja Bogojevic

Sanja Bogojević

Over the years, much ink has been spilled in the debate on standing of NGOs before the EU courts. This issue has been the object of particular consideration following the ruling in the Greenpeace case where the General Court denied the NGO in question standing on the basis that it did not ‘adduce any special circumstances to demonstrate the individual interest of their members’. Considering that environmental NGOs tend to represent the interests of society as a whole, or that of the environment in particular, imposing this kind of conditioning seems unreasonable. Indeed, this judgment, coupled with the more general …

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Robert Percival

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …

Costa Rica And Nicaragua Before The International Court Of Justice – Trying To Work Out The Complicated Relationship Between Law And The Environment, Britta Sjöstedt

Britta Sjöstedt

Nicaragua and Costa Rica have twice turned to the International Court of Justice (ICJ) to resolve disputes related to environmental damage occurring in a transboundary context. In these two cases the Court has to consider at least two issues. The first issue concerns the territorial status of a disputed border area. The disagreement is triggered by natural variations of the San Juan River at the border between the two countries, which causes confusion as to where the State line lies. The second issue concerns environmental damage; more specifically, it involves adversely affected wetlands protected under the Ramsar Convention. The obligations …

Introducing The ‘Reconciliatory Approach’ – Harmonizing International Environmental Law With Other Specialised Areas Of International Law, Britta Sjöstedt

Britta Sjöstedt

In this paper, I argue that international environmental treaties can interact with other specialised areas of law applicable to the same subject matter in the same context by using the ‘reconciliatory approach’ (RA). This approach entails that the institutions established under the environmental treaties are empowered to develop the treaty provisions in a manner that may also take other legal areas into account and thereby be able to reconcile obligations of other specialised legal areas. The RA functions on the premise that international law is one system with the inherent ambition to coherently systematize its norms. By looking at the …

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 …

What We Can Predict And Affect, Jill Fraley

Jill M. Fraley

No abstract provided.

A Flaw In California's Cap-And-Trade Plan, Alan Ramo, Janet Redman

Publications

California has made clear its intention to reduce greenhouse gas emissions. But is it taking the right steps to do so? The state has set a goal of returning to 1990 emissions levels by 2020. It has adopted renewable energy standards, driven the national trend in controlling automobile emissions and instituted a cap-and-trade program aimed at curbing climate pollution from power plants, refineries and other "stationary sources" of emissions. But a low-profile bill scheduled for consideration by the Legislature next year has exposed that, at least as far as its cap-and-trade program is concerned, California may be off-track. As it …

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell

Mary Ellen O'Connell

Professor O'Connell discusses the traditional methods used for international law "enforcement," and she argues that international law is generally obeyed. Its enforcement is based primarily on compliance, not enforcement. Accordingly, the author argues against using international enforcement mechanisms to enforce international environmental law. Instead, she posits that domestic courts should be used for international environmental law enforcement; however, certain obstacles, such as sovereign immunity, the doctrine of standing, and the principle of forum non conveniens, must be overcome. Professor O'Connell argues that it may be possible to overcome many of these court-made obstacles to enforcing international law through domestic courts. …

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 …

The Climate Change-Sustainable Development Nexus: A Proposal For Convergence, Alvin K. Leong

Dissertations & Theses

This thesis is founded on the proposition that climate change and sustainable development are inextricably linked with each other and form a “nexus” that should be understood in a pragmatic and holistic way. Accordingly, the climate change “problem” cannot be adequately addressed in “silos” or by traditional output control techniques but instead should be viewed as a multidimensional challenge that calls for transformative change in the world energy sector in light of the wider contexts of sustainability and social equity. This thesis observes that with the emergence of a post-2015 development agenda and Sustainable Development Goals (SDGs) at the United …

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …

How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber

Bruce R Huber

Among the major emissions trading schemes in operation around the world, the Regional Greenhouse Gas Initiative (RGGI) stands alone: this CO₂ cap-and-trade program among nine northeastern states is the only such scheme to rely primarily on auctions to distribute emissions allowances. The standard practice - distributing allowances for free on the basis of historical emissions - elicits begrudging but politically crucial support from some regulated emitters. Like carbon taxation, allowance auctioning has long been considered economically superior to its alternatives but politically infeasible.

How did the RGGI states manage to defy conventional wisdom and institute a program so reliant …

Transition Policy In Environmental Law, Bruce R. Huber

Bruce R Huber

Embedded within the structure of much American environmental regulation is a distinction between the new and the existing. This distinction reflects a recurrent political challenge for environmental policymakers: whether and how to mitigate regulatory burdens when policy change upsets settled expectations and investment commitments. Environmental law often grandfathers existing products and pollution sources or provides them with other kinds of transition relief. This paper presents a survey of transition policies in environmental regulation, which is followed by a pair of short case studies drawn from the trucking and pesticide industries. These examples demonstrate that the form and extent of transition …

Converting Natural Resources Into Electricity, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

This paper provides the groundwork for understanding the conversion of natural resources, such as wind, solar, biomass, and geothermal, into electric energy. It includes a summary of the current technologies and latest statistics on their distribution among states and on land and water. It also provides an introduction to some of the legal issues related to their deployment and interconnection with the electric grid.

Good-Bye Christopher Columbus Langdell?, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The call of this Article was to take "A Prospective Look" at Environmental and Natural Resources Law for the next 40 years with a special focus on law school teaching. Daunted by the hubris involved in prognosticating so far into the future, this piece more modestly explores three areas in which law school teaching is currently changing: I. Methods of Presentation; II. Use of Skills Exercises; and III. Influence of Digital Technologies and the Internet. To add an empirical component, the author canvassed AALS members about pedagogies they used both in class and outside of classroom time, as well as …

Human Rights And Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin

Gabriel Eckstein

No abstract provided.

International Law In A Time Of Scarcity, Ertharin Cousin, Rebecca H. White, C. Donald Johnson, Lincoln Davies, José Cuesta, Barbara Deutsch Lynch, Harlan G. Cohen, Gabriel Eckstein, Lillian Aponte Miranda, Kristen E. Boon, Peter A. Appel, Anastasia Telesetsky, Aparna Polavarapu, Felix Mormann, Diane Marie Amann, Katie Croghan

Gabriel Eckstein

On February 5th, 2013 the Dean Rusk Center and the Georgia Journal for International and Comparative Law hosted a daylong conference on “International Law in a Time of Scarcity.” The scarcity of resources, whether food, water, fuel sources, or clean air, may be a defining reality for global policy in the years to come. By bringing together leading policy makers and legal scholars, conference organizers created a forum to serve as a foundation for future scholarship on the role of international law in scarcity issues. The keynote speaker was Ertharin Cousin, United Nations World Food Programme executive director and 1982 …

Why Chinese Wildlife Disappears As Cites Spreads, John C. Nagle

John Copeland Nagle

No abstract provided.