Law Commons^™

Species Survival Or The “3s Method”? How The Endangered Species Act Disincentivizes Landowner Cooperation And Threatens The Species It Supposedly Saves, William Edward Mahaffy

Texas A&M Journal of Property Law

The Endangered Species Act (ESA) places restrictions on landowners when their property harbors endangered species. Though well-intentioned as a method of promoting species recovery, these restrictions actually have the reverse effect. Instead of accepting ESA regulations, landowners secretly eliminate endangered species from their property in what is colloquially known as “shoot, shovel, and shut up.” Collaboration between landowners and agencies is essential for species preservation. This Article illustrates the collaboration options, some within the limits of the ESA and others requiring its reform. The four options analyzed are (1) landowner peer review of species listing procedures, (2) congressional clarification of …

The Environmental Impact Of Russia's War In Ukraine, Benjamin N. Cardozo School Of Law, Cardozo Environmental Law Society

2022–2023 Flyers

No abstract provided.

The Constitutionality Of Contributing To Climate Change, Madeline Troxell

Brigham Young University Prelaw Review

Despite the issue of human-caused climate change being upheld by science for decades, topics of its legitimacy, relevance, and repercussions are still debated heavily today. In an attempt to argue for their constitutional right to a safe and livable climate, 21 young plaintiffs have sued the federal government for its affirmative action increasing America’s dependency on fossil fuels, thus exacerbating the climate crisis. The obstacles facing their case can be reduced to an argument concerning the courts jurisdiction over climate issues. This article will argue that the plaintiff's case is centered around the civil rights of children, and thus the …

Enabling A Just Transition: Protecting Human Rights In Renewable Energy Projects: A Briefing For Policymakers, Hansika Agrawal, Laura El-Katiri, Kimathi Muiruri, Sam Szoke-Burke

Columbia Center on Sustainable Investment

This briefing provides guidance to policy- and decision-makers (hereafter, “policymakers”) on the benefits of and strategies for taking a human rights-based approach to renewable energy policy. It highlights the various impacts of utility-scale renewable energy projects on peoples and communities, associated risks for policymakers, and explains how national, regional, and global policies can help mitigate those impacts and risks. The briefing addresses different agents of policy- and decision-making: Host states, where renewable energy projects are proposed or located; Home states where corporations pursuing renewable energy investments, especially investments abroad, are based; Development Finance Institutions (DFIs) financing renewable energy investments, especially …

Intersectional Management: An Analysis Of Cooperation And Competition On American Public Lands, Robin M. Rotman, Abigail M. Hunt

Faculty Publications

The United States government holds public lands in trust for the whole of the American people. This article focuses on National Monuments under the Antiquities Act. It argues that the federal government should renew its approach to the management of these lands by incorporating principles of environmental justice and long- term environmental viability. The article begins by examining the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It then reflects on recent litigation and political controversy surrounding Bears Ears National Monument and Grand Staircase–Escalante National Monument, to illustrate how the …

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Climate Security Insights From The Covid-19 Response, Mark Nevitt

Indiana Law Journal

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

How Many More Brazilian Environmental Defenders Have To Perish Before We Act? President Lula's Challenge To Protect Environmental Quilombola Defenders, Sarah Dávila A.

William & Mary Environmental Law and Policy Review

The Global South has been historically marginalized and continues to suffer from systemic oppression, impeding the realization of their human rights. Afro-descendants and other minority populations in the Global South live in disproportionately environmentally unsafe conditions and are disproportionately more vulnerable to climate change and environmental harm. One of those populations are Quilombolas. Quilombolas are Brazilian Afro-descendant communities who continue to fight to protect their community rights to ancestral lands, natural resources, and survival as a people. The Brazilian government under former Brazilian President Bolsonaro engaged in a persistent and systematic campaign to target, attack, and kill defenders, including Quilombola …

Rural Bashing, Kaceylee Klein, Lisa R. Pruitt

University of Richmond Law Review

Anti-rural sentiment is expressed in the United States in three major threads. The first is a narrative about the political structure of our representative democracy—an assertion that rural people are over-represented thanks to the structural features of the U.S. Senate and the Electoral College. Because rural residents are less than a fifth of the U.S. population, complaints about this situation are often framed as “minority rule.”

The second thread is related to the first: rural people and their communities get more than their fair share from federal government coffers. The argument, often expressed in terms of “subsidies,” is that rural …

Private Environmental Nudges, Anthony Moffa

Dickinson Law Review (2017-Present)

A few years ago, before the onset of a global pandemic, I noticed that my preferred Portland, ME coffee shop—Tandem Coffee Roasters—implemented a new policy. Upon ordering a beverage, the barista asked if I brought my own mug. They informed me that, if had I not, I could purchase a paper, disposable vessel from the shop for twenty-five cents. Some might (understandably) ask, “Does coffee not come in a cup anymore?” The shop implemented what this paper dubs a “private environmental nudge,” a subset of policies that define private environmental governance (PEG)—the actions taken by nongovernmental entities to achieve traditional …

24/7 Clean Energy, Todd S. Aagaard

Faculty Publications

In the face of the rapidly escalating climate crisis, the electricity sector is moving toward renewable energy. To date, policies and strategies have focused on increasing overall renewable energy generation, with little regard for timing and location. The result has been a misalignment of supply and demand in renewable energy markets. Renewable power projects produce energy when and where it is least expensive, leaving supply scarce at other times and places. Consumers, meanwhile, continue to use power when and where they need it. This mismatch increases the electricity grid’s dependence on fossil fuel–fired electricity to meet electricity demand at times …

Socio-Economic Considerations Of Living Modified Organisms And Impacts On Trade: Evolution Of Environmental Disputes At The World Trade Organization, Leonardo Munhoz

Dissertations & Theses

The Convention on Biological Diversity (CBD) is the most important international treaty concerning the conservation of biodiversity and the Cartagena Protocol is a specific instrument to regulate biosafety measures for Living Modified Organisms ("LMOs"). In this Protocol, apart from mandatory environmental and health risk assessments, the Parties can also voluntarily adopt socio and economic considerations ("SECs") arising from LMOs, as stated in article 26.

However, the definition of SECs is still under negotiation, therefore it does not currently have a definite concept and meaning. Also, the last Conference of the Parties proposed to expand SECs by adding extra cultural, traditional, …

Table Of Contents (V. 47, No. 3)

William & Mary Environmental Law and Policy Review

No abstract provided.

Foreword To International Environmentalism: A Global Approach To Global Challenges, Cameron Krause

William & Mary Environmental Law and Policy Review

As the effects of climate change progress, people and governments in every country are left grappling with how to combat the consequences. Recognizing that such global challenges necessitate an international approach, this Symposium was convened to critically examine the domestic application of international law, the role of non-governmental organizations (“NGOs”), transnational ecological harms, and international environmental agreements. Articles and contributions from panelists in the Symposium contemplated the best paths forward in the face of an ever-changing international landscape.

This abstract has been taken from the author's opening paragraphs.

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine Nadow, Hayley-Bo Dorrian-Bak

William & Mary Environmental Law and Policy Review

The world’s oceans are in crisis. Climate change impacts, biodiversity loss, plastic pollution, fisheries collapse, impacts to marine mammals, and vessel-based pollution are among the many threats the marine environment faces today. Fish biomass is predicted to drop by 3% to 25% by the end of the century due to climate change. Worse still, the amount of plastic in the world’s aquatic ecosystems is on track to hit 23 to 37 million tons per year by 2040.

[...]

This Article reviews recent successes and obstacles in using litigation as a tool to address these concerns across several contexts in the …

It Takes Two: Cites, Illegal Wildlife Trade, And Importing Country Accountability, Erica Lyman

William & Mary Environmental Law and Policy Review

This Article proposes that the CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] compliance mechanism is fit-for-purpose in its design but its application is biased against source countries and ignores consumer countries both as drivers of illegal wildlife trade and as noncompliant actors. Bringing a justice-based sensibility to the application of the CITES compliance process requires a whole-of-supply-chain analysis and, drawing on the core relational foundations of the treaty, an international perspective, to identity the root causes of non-compliance that allow illegal trade to fester. Ultimately, the compliance mechanism must gel with the machinery and …

Mining And The Protection Of Aboriginal Heritage In South Australia, Alex Wawryk

William & Mary Environmental Law and Policy Review

In 2020, the multinational mining company Rio Tinto destroyed 46,000-year-old Aboriginal rock paintings in Juukan Gorge, Western Australia, to national and international outrage. The incident led to an explosion of concern in Australia regarding the adequacy of domestic laws that aim to protect Aboriginal cultural heritage from the impacts of resource exploitation. This Article explains and critically analyzes the legislative and regulatory framework for the protection of Aboriginal heritage in relation to mining in South Australia. It demonstrates the complexity of the legal and regulatory regime, identifies a number of significant flaws in the key act designed to protect Aboriginal …

The Importance Of Accessible Government Data In Advancing Environmental Justice, Frank D. Lomonte, Daniel Delgado

William & Mary Environmental Law and Policy Review

Part I of this Article sets forth the history and animating principles of the environmental justice movement in the United States during the 1970s, which developed as an adjunct to the larger civil rights movement. Part II then turns to the role of documents and data in exposing where toxins present a risk to public health and where documentation habitually falls short. It discusses how freedom of information laws can unlock access to the documents and data that quantify environmental hazards but also how those laws fail to produce reliable results because of the influence of regulated industries. Part III …

Climate Services: The Business Of Physical Risk, Madison Condon

Faculty Scholarship

A growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty …

Reducing Septic-Reliant Households: How A Comprehensive Legal Scheme Could Improve Water Quality, Environmental, And Human Health, Karlin Foor, Anna Bailey

Virginia Coastal Policy Center

Considering the [...] concerns of septic reliance in Virginia, this paper will present and explicate three issues pertaining to the Maryland Sustainable Growth and Preservation Act (the “Septic Law”). Maryland's Septic Law represents an effort at a statewide legal scheme for approaching the issue of rapid development on septic. It may function as a useful starting point for Virginia to approach the danger that failing septic poses to Virginian citizens and the health of the Chesapeake Bay, a vital contributor to the state economy and cultural heritage. Part II opens with an overview of Maryland’s Septic Law. Part III evaluates …

Production And Global Dissemination Of Chinese Legal Ideology: Implications For The Study Of Illiberalism, Samuli Seppänen

Cardozo International & Comparative Law Review

This Article discusses the production and global dissemination of Chinese legal ideology and considers its implications for the study of illiberalism. The leaders and ideologues of the Chinese Communist Party profess an interest in increasing the impact of its social sciences and governance ideology in foreign countries. On its face, this project amounts to an ambitious, even radical, ideological challenge against liberal legal thought. Nevertheless, these attempts can also be seen to highlight various challenges that illiberal regimes face in ideological production and advocacy. First, the domestic priorities of illiberal ideological speech may not support ideological advocacy efforts in foreign …

The End Externalities Manifesto: Restatement, Loose Ends, And Unfinished Business, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Don Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss.

In their End Environmental Externalities Manifesto ("Manifesto") they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is …

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

Quasi-Experimental Evidence On The Impact Of State Recycling And Deposit Laws: Household Recycling Following Interstate Moves, W. Kip Viscusi, Joel Huber, Jasen Bell

Vanderbilt Law School Faculty Publications

This article estimates the effects on recycling behavior of state recycling laws and deposit laws based on changes in household recycling before and after interstate moves. Estimates from a national panel dataset of 1,498 households who moved between states provide a quasi-experimental test otherwise not possible given long-term stability of such laws in any state. Compared to national average recycling rates, moves to states with deposits for beverage containers increased the number of material types recycled by 41%. More stringent recycling laws are also effective, but they have a smaller impact. Recycling laws boosted the number of materials recycled by …

Toward A Tribal Role In Groundwater Management, Alexandra Fay

American Indian Law Journal

This Article considers the Agua Caliente groundwater litigation a decade since its inception. It recounts the most recent developments in the case, notably the move to mediation and the strategic work that brought the water districts to the table. The Article places this monumental case in context: in the history of colonization and tribal-state relations, the present climate crisis, and the State of California’s groundwater management regime. The Article ultimately outlines the present opportunity to reimagine the role of tribes in groundwater management.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

Oil, Indifference, And Displacement: An Indigenous Community Submerged And Tribal Relocation In The 21st Century, Jared Munster

American Indian Law Journal

Coastal land loss driven by erosion and subsidence, and amplified by climate change, has forced the abandonment and resettlement of the remote Louisiana Indigenous community of Isle de Jean Charles. This relocation, to a relatively ‘safer’ site inland has led to division among the residents and will inevitably cause irreparable damage to the culture and traditions of the Houma and Biloxi Chitimacha Confederation of Muskogees peoples who called this small, isolated island home. Driven to the water’s edge by European colonization of south Louisiana, this community developed a dynamic subsistence lifestyle based on agriculture, hunting, and fishing which survived undisturbed …

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations, April 20-21, 2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Amicus Curiae Brief State Of Utah Et. Al. V Walsh Et. Al., Ethan Halman Gonzalez

Honors Program: Senior Projects (Public)

In accordance with Rule 29 of the Federal Rules of Appellate Procedure, this amicus curiae is submitted in the defense of Walsh and the Department of Labor in releasing the prudence and loyalty in selecting plan investments and exercising shareholder rights rule in November of 2022. These brief mainly focuses on the arbitrary and capricious standard, the major questions doctrine, and the legal standing the Department of Labor has to issue rules that apply to the Employee Retirement Income Security Act of 1974.

Accurately Valuing Blue Carbon Sequestration And Storage To Foster Coastal Conservation Via Evidence-Based Policymaking And Model Environmental Services Statute Methodologies, John Shelton Penton Jr

LSU Doctoral Dissertations

Blue carbon ecosystems, especially mangrove forests, provide one of nature’s most effective means for sequestering carbon from the atmosphere and storing it in subsurface soils. The six nearshore coastal morphologies found in tropical and subtropical regions each possess a conspicuous environmental signature that can be employed to accurately estimate and predict mangrove forests’ carbon storage in above-ground biomass, below-ground biomass, and the soils by system type. The consistent geomorphology and geophysical processes within each of these coastal environmental settings, that is, the wave and tidal forcings, the rate of coastal sediment accretions, nutrient load and limitations (e.g., nitrogen-to-phosphorus …