Law Commons^™

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

Existing Challenges And Possible Pathways For Case Success In Climate Litigation With Human Rights Claims, Daniel Ziebarth

St. Mary's Law Journal

No abstract provided.

Forever Chemicals Are Infiltrating America, And The Nation Is Letting Impoverished And Marginalized Communities Take The Brunt Of The Contamination, Elizabeth Troutman

Seattle Journal for Social Justice

No abstract provided.

Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad

All Faculty Publications

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …

The Constitutional Public Trust In A Warming World, Sean Lyness

Pace Environmental Law Review

The public trust doctrine—a state-specific doctrine that entrusts certain natural resources to the state to hold for the public—most often exists as a common law doctrine. But a handful of states have constitutionalized their version of the public trust. A growing body of jurisprudential evidence shows the constitutional public trust in action—or not—against climate change. This Article examines these cases brought by governmental plaintiffs—states and local governments—investigating whether constitutionalizing the public trust has made a difference. Although the results are nascent, early signs suggest that a constitutional public trust can result in more comprehensive and aggressive law- suits when wielded …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Legal Mechanisms For Protecting The Earth From Climate Change: An Analysis Of Limitations, Current Trends And Emerging Alternatives, Abby Mei Frazier

Senior Projects Spring 2023

This thesis examines the obstacles that make environmental protection challenging to litigate, particularly in the context of climate change, and identifies the underlying reasons for these obstacles. I emphasize the significance of preserving nature and provide a historical overview of environmental conservation. Despite the pressing nature of climate change and environmental degradation, legal efforts to combat these issues have often yielded unsatisfying results due to a lack of transparency, accountability, and fair power dynamics. This study examines four U.S. climate litigation cases under the Freedom of Information Act, revealing a consistent pattern of inadequate transparency and accountability that creates an …

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

Articles

No abstract provided.

The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah

All Faculty Publications

Climate change litigation continues to bash holes in the view of domestic legal systems as hermetically sealed units. Domestic cases are inspired by litigation elsewhere, actively fostered by transnational advocacy communities, and the decisions themselves are indicative of transjudicial influences and sometimes even dialogue on climate change. This chapter, written in 2021 to reflect the transnationalism of early climate change litigation, takes a close look at practices of transjudicialism in climate change litigation. In so doing, it seeks to disrupt some default patterns of studying the spread of law. By problematizing the practices of ‘finding’ influential climate law cases, measuring …

Climate Science In Adaptation Litigation In The U.S., Jacob Elkin

Sabin Center for Climate Change Law

The most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—but as climate impacts become more frequent, extreme, and intense, adaptation litigation will increase. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change. This research oftentimes consists of one of two types of climate research: attribution studies of climate change to date, and future projections of climate change and its impacts.

Climate change attribution links human activity to climate change, especially changes in the statistics of extreme weather events. Increasingly, it is also beginning to be applied to impacts …

“At What Cost?’: The Future Of Securities Enforcement In Climate Change Litigation, Angela Washington

Sustainable Development Law & Policy

No abstract provided.

The Ends And The Means: Indigenous Sovereignty, Climate-Related Legal Actions, And Frameworks Of Justice, Connor Marcum

Indiana Journal of Global Legal Studies

Philosophy professor Timothy Morton uses climate change as his foremost example of what he calls a hyperobject: an object that occupies both more physical space and more time than humans can usefully comprehend. For example, one can understand local meteorological occurrences in isolation without necessarily understanding that a given storm was more severe than it should have been because an overall increase in global temperatures makes for a more aggressive, active hydrological cycle. Environmental organizations focused on raising awareness understand this. Public campaigns to wed the nebulous idea of climate change to specific, concrete images are incredibly memorable: think of …

"On The Eve Of Destruction": Courts Confronting The Climate Emergency, Mary Christina Wood

Indiana Law Journal

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no …

Litigation As Integration And Participation: The Role Of Lawsuits In The U.S. Environmental Justice Movement, Tomas Sebastian Forman

Senior Projects Spring 2022

What is, has been, and could be the role of litigation in the U.S. environmental justice movement? To what ends do Indigenous communities, federally-recognized tribes, and rural Black communities choose to engage with the U.S. legal system, an institution which has, over history, consistently subjugated and dispossessed them? How do these groups' particularistic relationships to natural and built environments, conceptions of justice and fairness, and understandings of what effective environmental regulation look like inform that choice? This paper draws from in-depth qualitative research to demonstrate the following things: (1) how environmental justice lawsuits differ from canonical environmental and civil rights …

Cle Working Paper No.1/2021--Grassroots And Litigation-Based Approaches To Advancing Indigenous Rights: Lessons From Extractive Industry Resistance In Mesoamerica, Justin Wiebe

Centre for Law and the Environment

Indigenous peoples are frequently recognized as excellent stewards of their traditional territories. These territories, which often exhibit extraordinary levels of biodiversity, face disproportionate and growing threats from extractive industry. In opposing these threats, Indigenous peoples increasingly rely on internationally-defined Indigenous rights, including those set out in UNDRIP and ILO Convention 169. It is uncertain, however, how these rights are most effectively advanced. In this paper, I tease out strategies — both grassroots-based and litigation-based — that show promise in this regard. Drawing on Waorani resistance to an oil auction in Ecuador and Indigenous resistance to a large-scale mining project in …

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have …

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.

The Ethics Of Environmental Litigation, Jenna Marie Dibenedetto

Student Theses 2015-Present

Abstract

We are raised from the early days of our youth to distinguish right from wrong, evil from good. Though there are many careers that have easily distinguishable ethics from their day of creation, others require spend their entire professional careers floating in a grey area. Being a lawyer can leave you in limbo very often. The ethical battle between prosecuting people whose actions go against everything you believe in and defending someone who actions you struggle to rationalize, looking for a “nail in the coffin” or finding a way to pry it open can play a large role in …

See You In Court: Around The World In Eight Climate Change Lawsuits, Myanna Dellinger

William & Mary Environmental Law and Policy Review

No abstract provided.

From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle

Articles, Book Chapters, & Popular Press

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …

Law Library Blog (October 2016): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch

Vanderbilt Law School Faculty Publications

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

Newsroom: Logan On Bp Settlement, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Slides: The Colorado River: Innovation In The Face Of Scarcity, Anne J. Castle

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Anne J. Castle, Stanford Woods Institute for the Environment

40 slides

Environmental Burdens And Democratic Justice, Gerald Torres

Gerald Torres

To date, however, there has been relatively little academic discussion about how EPA and other federal agencies can achieve environmental justice. In addition, most legal academic literature has focused either on simply identifying the legal issues associated with race and environmental law or on developing a litigation strategy for remedying “environmental racism.” None of the legal academic literature has focused on the benefits of using an administrative framework to define or develop sustainable solutions to the distributional inequities of environmental laws. The purpose of this Article is to explain the benefits of pursuing an administrative model for change. Unlike other …

The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman

Northwestern University Law Review

No abstract provided.

Facts Can Be Stubborn: The Importance Of The Fact Section In Environmental Law, L.A. County Flood Control Dist. V. Natural Res. Def. Council, 133 S. Ct. 710 (2013), Aaron Schaer

Aaron Schaer

L.A. County is a perfect example of a difficulty that underlies many environmental cases. The facts are often incredibly complex, and based on science that even the PhDs among us struggle to comprehend. And if this were not enough, the environmental laws that these facts are siphoned through are no walk in the park themselves. Quite the opposite, as should be expected from political compromises over intricate, ever-evolving science. Environmental laws are rife with jargon and compound terms that are best left to acronyms like NAAQS and NPDES. This itself has become food for fodder, as these laws have been …

Pleading Patterns And The Role Of Litigation As A Driver Of Federal Climate Change Legislation, Juscelino F. Colares, Kosta Ristovski

Faculty Publications

Based on a variant of the Elliott-Ackerman-Millian theory that variable, potentially inconsistent and costly litigation outcomes induce industry to seek federal preemptive legislation to reign in such costs, we collect data on climate change-related litigation to determine whether litigation might motivate major greenhouse gas emitters to accept a preemptive, though possibly carbon-restricting, legislative compromise. We conduct a spectral cluster analysis on 178 initial federal and state judicial filings to reveal the most relevant groupings among climate change-related suits and their underlying pleading patterns. Besides exposing the general content and structure of climate change-related filings, this study identifies major specific pleading …

Mining, Uranium, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides an overview of uranium mining's role and influence in the American West with comparative information on uranium mining in foreign countries.