Law Commons^™

Adapting To A 4°C World, Karrigan Börk, Karen Bradshaw, Cinnamon P. Carlarne, Robin Kundis Craig, Sarah Fox, Joshua Ulan Galperin, Shi-Ling Hsu, Katrina F. Kuh, Kevin Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J.B. Ruhl, James Salzman, David Takacs, Clifford J. Villa

Elisabeth Haub School of Law Faculty Publications

The Paris Agreement's goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

Modelling For Sustainable Development: New Decisions For A New Age, Andrea M. Bassi, Liesbeth Casier, David Laborde, Max Linsen, David Manley, Nicolas Maennling, Howard Mann, Morten Siersted, Carin Smaller, Iain Steele, David Uzsoki, Johnny West

Columbia Center on Sustainable Investment Books

This book outlines how next-generation models need to integrate social and environmental components in government and corporate decision-making. Traditionally, these models have focused on profits and taxes, but to achieve the UN’s Sustainable Development Goals, they need to take a more holistic view. The book builds on the expanding practices of modelling complex decision making requirements and indicators. It considers the challenges of decision making in the face of incomplete and sometimes inaccurate information, the role of multiple stakeholders, and the capacity of governments and others to use models effectively.

Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo

Ocean and Coastal Law Journal

Using a legal history methodology, this paper examines existing marine renewable energy law and policy in Nova Scotia with a focus on its application in the Bay of Fundy. This paper critically assesses the current approach to coastal management in light of recent recommendations summarized in the Fournier report. This paper argues that, despite clear calls to develop integrated ocean management and marine spatial planning in policies and regulations, Canada and Nova Scotia have failed to do so because of unclear federal-provincial boundaries. Ambiguous domestic borders in the Bay of Fundy have been at the source of an overly cautious, …

Droughts, Floods, And Wildfires: Paleo Perspectives On Diaster Law In The Anthropocene, Ryan Stoa

Ryan B. Stoa

Humanity's impact on the earth has become so pronounced that momentum is building toward adopting a new term for the modem geological age-the "Anthropocene." The term signifies that human activity has reached a scale that it is now a planetary force capable of shaping ecosystems and natural processes. And yet, anthropocentric natural resources management and environmental lawmaking in the United States reveal a lack of control in managing natural systems and fostering resilience to extreme events. These systems do not easily conform to the whims of reactionary environmental policies. Droughts, floods, and wildfires, in particular are often conceptualized as unforeseeable …

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …

Guest Species: Rethinking Our Approach To Biodiversity In The Anthropocene, Karrigan Börk

Utah Law Review

Western environmental law rests on an outdated philosophy that only fully “natural” places, species, and ecosystems should receive full protection, while human influenced places, species, and ecosystems are lesser habitats not worthy of full-throated protection. As we move into the Anthropocene—a dawning geologic age marked by the emergence of humanity as the dominant force shaping the natural world—this simplistic view loses its power to guide our decisionmaking. In a world where more than 75% of ice free land shows evidence of human alteration, if anthropogenic species, places, or ecosystems are not worth protecting, then there simply is not enough left …

Public Conservation Policies On Private Land: A Case Study Of The Brazilian Forest Code And Implications For The Agro-Industry Sector, Rayane Aguiar, Jody M. Endres, Caroline Taylor, Samuel Evans

Pace Environmental Law Review

The objectives of this paper are to discuss (1) a brief history of the Brazilian Forest Code (FC); (2) key aspects of the 2012 FC revisions; (3) the status of implementation, including institutional and field-level challenges, as well as economic incentives to ease compliance; and (4) the importance of the FC for the Brazilian agro-industrial sector.

Autonomy In The Anthropocene? Libertarianism, Liberalism And The Legal Theory Of Environmental Regulation, Jason Maclean

Dalhousie Law Journal

Can there be autonomy in the Anthropocene? Libertarian environmental law scholar Bruce Pardy's Ecolawgic: The Logic of Ecosystems and the Rule of Law argues that contemporary environmental law violates the right to autonomy and runs afoul of the rule of law. Pardyproposes an alternative model ofenvironmental law premised on the logic of ecosystems and free markets. Pardy's Ecolawgic suffers, however from the very same conceptual infirmities that substantially undermine the real-world application of the free market paradigm on which Ecolawgic is largely based. Notwithstanding this critical flaw, Ecolawgic may be read as an aspirational model of environmental law and policy …

Reevaluating Wilderness Classification And Management In The Face Of Climate Change: A Reconsideration Of Values And Ecology, Katherine Fiedler

Pace Environmental Law Review

In recognizing that the very nature of wilderness is a human construct, the values sought to be preserved can and should be reevaluated, considering the importance of wilderness in light of climate change and global ecosystem resilience, as well as how wilderness is designated and managed. Furthermore, the values that wilderness provides us will dramatically increase as climate change proceeds. Section II of this article describes the basics of wilderness protection, including the evolution of our relationship with wilderness, the history of the Wilderness Act, and what, how, and why wilderness is protected under the Act. Section III explores how …

Alien Invasion! An Ocean Picture Coming To A Sea Near You: An Analysis Of International Frameworks For Aquatic Invasive Species Control, Kelly Cox

University of Miami Inter-American Law Review

Aquatic invasive species are marine, estuarine, or freshwater organisms that adversely impact ecosystems they are not native to. Such impacts include long-lasting or permanent damage to habitats, ecosystem balance, and biodiversity. These impacts have a cascading effect on local economies dependent on these natural resources by impeding recreational and commercial activities. Moreover, aquatic invasive species control and management is both complex and challenging due to the lack of physical barriers in aquatic environments to abate or contain the spread of these nuisance species. The Wider Caribbean Region has been notably impacted by the introduction of the non-native lionfish (Pterois volitans) …

The Biodiversity Paradigm Shift: Adapting The Endangered Species Act To Climate Change, Kalyani Robbins

Faculty Publications

The Endangered Species Act (ESA) was designed to protect species that had been rendered more vulnerable to extinction as a result of human activity. As such, its implementation has traditionally focused on keeping human beings away from such species and giving the species (and their ecosystems) space to heal on their own. Climate change is altering the landscape everywhere on the globe, rendering the hands-off approach no longer sufficient. Active interventions will become more necessary as we get further into the changing climate. Taking decisive action in response to climate change will also require a fundamental shift in our approach …

Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle

Michigan Journal of Environmental & Administrative Law

President Nixon recognized the controversy surrounding off-road vehicle (ORV) use on public lands when he signed Executive Order 11,644 in 1972. The Executive Order set out minimization criteria that bound federal land management agencies’ ORV area and trail designations. Forty years later, agencies are still struggling to implement the minimization criteria. Recent court opinions have struck down implementation attempts by the National Park Service, Bureau of Land Management, and Forest Service. This note argues that agencies require additional guidance for ORV management, particularly in light of case law that sets a floor for achieving minimization. After examining how the mandate …

The Curious Untidiness Of Property & Ecosystem Services: A Hybrid Method Of Measuring Place, John Page, Ann Brower, Johannes Welsch

Pace Environmental Law Review

Theoretically, this paper builds on ideas of ecosystem services (ES) in landscapes, property theories of plurality and marginality, and the legal geography of localized place. Methodologically, we will explore three divergent ways of measuring ES in a propertied landscape. Substantively, combining property theory and spatial methods in this way will allow for future consideration of property arrangements that might be more optimal and representative of contextualized place.

Part II presents the qualitative method--a narrative description of the flow of resources and services across a transect from the mountains to the sea. Narrative is effective in describing the aesthetics and indelibly …

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

Alyson Flournoy

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes. This effort …

Charting A New Course For The Colorado River: A Summary Of Guiding Principles, Colorado River Research Group

Books, Reports, and Studies

[4] p. : color illustrations ; 28 cm.

The Use Of The Public Trust Doctrine As A Management Tool Over Public And Private Lands, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Slides: Natural Gas: Game Changer Or Runner Left On Base? Working To Get It Right In Co!, Gary Graham

Drawing the Blueprint for a Sustainable Natural Gas Future (January 18)

Presenter: Dr. Gary Graham, Director, Lands Program, Western Resource Advocates

21 slides

Remedying The Misuse Of Nature, Sanne H. Knudsen

Articles

As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer.

In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private …

Filling The Gap: Commonsense Solutions For Meeting Front Range Water Needs: Executive Summary, Western Resource Advocates, Trout Unlimited, Colorado Environmental Coalition (U.S.)

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

8 pages.

"February 2011"

Presented by Drew Beckwith, Water Policy Manager, Western Resource Advocates, on June 10th at Clyde O. Martz Summer Conference 2011, Navigating the Future of the Colorado River Basin

Full report available at: http://www.westernresourceadvocates.org/gap

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

UF Law Faculty Publications

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort …

The Problem With Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm And Standing Jurisprudence, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Several recent events harmonically converged into the topic for this article. The first was a posting on Georgetown Law’s environmental law professors’ listserv by Professor John Bonine, which raised a number of questions about whether and how standing doctrine might be rethought in light of the Supreme Court’s opinion in Massachusetts v. EPA. That opinion relaxed the states’ standing burden because of the unique sovereign interests, finding that federalism bargaining earned states “special solicitude” when it came to meeting the Court’s standing requirements.

The second was a complaint filed by a consortium of regional environmental organizations, Chesapeake Bay Foundation, …

Slides: Water Needs And Strategies For A Sustainable Future, Shaun Mcgrath

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Shaun McGrath, Program Director, Western Governors’ Association

25 slides

Slides: Energy Production And The West's Wild Places, Amy Mall

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Amy Mall, Senior Policy Analyst, Natural Resources Defense Council

28 slides

The Role Of Local Governments In Great Lakes Environmental Governance: A Canadian Perspective, Marcia Valiante

University of Michigan Journal of Law Reform

Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration …

Slides: Dam Building And Removal On The Elwha: A Prototype Of Adaptive Mismanagement And A Tribal Opportunity, William H. Rodgers, Jr.

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: William H. Rodgers, Jr., Stimson Bullitt Professor of Environmental Law, University of Washington School of Law

77 slides

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Why Care About The Polar Bear?: Economic Analysis Of Natural Resources Law And Policy [Outline], Lisa Heinzerling

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

1 page.

"Lisa Heinzerling, Georgetown Law School" -- Agenda

After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In four separate cases, three circuit courts (the District of Columbia, Fourth, and Fifth Circuits) struggled with deciding whether Congress may still protect endangered and threatened species that have little commercial value under the Commerce Clause after Lopez and Morrison. In each case, the court concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small …

Global-Change Scenarios: Their Development And Use, Edward A. Parson, Virginia Burkett, Karen Fisher-Vanden, David Keith, Linda Mearns, Hugh Pitcher, Cynthia Rosenzweig, Mort Webster

Other Publications

This report examines the development and use of scenarios in global climate change applications. It considers scenarios of various types – including but not limited to emissions scenarios – and reviews how they have been developed, what uses they have served, what consistent challenges they have faced, what controversies they have raised, and how their development and use might be made more effective. The report is Synthesis & Assessment Product 2.1b of the US Climate Change Science Program. By synthesizing available literature and critically reviewing past experience, the report seeks to assist those who may be conducting, using, or commissioning …

Toward A Common Law Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.