Law Commons^™

Rural America As A Commons, Ann M. Eisenberg

University of Richmond Law Review

With many ready to dismiss non-urban life as a relic of history, rural America’s place in the future is in question. The rural role in the American past is understandably more apparent. As the story of urbanization goes in the United States and elsewhere, the majority of the population used to live in rural places, including small towns and sparsely populated counties. A substantial proportion of those people worked in agriculture, manufacturing, or extractive industries. But trends associated with modernity—mechanization, automation, globalization, and environmental conservation, for instance—have reduced the perceived need for a rural workforce. Roughly since the industrial revolution …

With A Wink And A Nod: How Politicians, Regulators, And Corrupt Coal Companies Exploited Appalachia, Patrick C. Mcginley

University of Richmond Law Review

Environmental regulators treated America’s leading coal companies like Wall Street’s mismanaged banks leading to the “Great Recession”—big coal companies that produced millions of tons of coal were simply too big to fail. With a wink and a nod, federal and state regulators ignored a core provision of federal law that was intended to prevent coal companies from continuing their past practices of plundering Appalachia’s mineral wealth while ravaging her environment.

This Article examines how the coal industry successfully evaded compliance with that law. The consequences of this evasion include mass bankruptcies, thousands of acres of mined land laying unclaimed, …

How Private Enforcement Exacerbates Climate Change, Anna A. Mance

Cardozo Law Review

Private enforcement-the practice of allowing private actors to directly enforce statutes or regulations-has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental …

Armor Or Withdraw? Likely Litigation And Potential Adjudication Of Shoreland Conflicts Along Michigan's Shifting Great Lake Coasts, Richard K. Norton, Guy A. Meadows, Oday Salim, Matthew Piggins, Phillip Washburn, Lauren Ashley Week

Michigan Journal of Environmental & Administrative Law

Michigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other …

Environmental Justice From The Ground(Water) Up: Coping With Contamination In Tallevast, Florida, Grey W. Caballero

USF Tampa Graduate Theses and Dissertations

How do communities living with chronic environmental contamination cope with the social, political, and economic impacts of the contamination? This research employs a community-engaged oral history approach with participant observation and archival research to address this question. We focus on the case of Tallevast, Florida, where the local groundwater has been contaminated with chlorinated solvents for over 60 years and where cleanup is estimated to take another 100 years. In addition to concerns about health and wellness, we find that residents are also concerned about household displacement and the disruption of social networks, failed governance at the local and state …

Coastal Cities In The Southern Us Floodplains: An Evaluation Of Environmental Equity Of Flood Hazards And Social Vulnerabilities, Lubana Tasnim Mazumder

USF Tampa Graduate Theses and Dissertations

Floods are recognized as one of the most common and widespread natural hazards in the United States (US). They are responsible for uncompensated losses and damages. Furthermore, evidence suggests flooding inflicts more harm among socially vulnerable groups, incapable of withstanding hazard events, raising environmental equity (EE) and justice (EJ) concerns. Regrettably, with continuing climate change and urbanization, flooding will not subside in the future; instead, the flooding frequency and intensity will increase in many parts of the US, and the trend of disproportionate impacts will continue to rise.

Since Hurricane Katrina, a considerable amount of research has been conducted on …

Endnotes

Sustainable Development Law & Policy

No abstract provided.

Using Federal Public Lands To Model A New Energy Future: Why The Biden Administration Should Prioritize Renewable Energy Development On Public Lands, Meghen Sullivan

Sustainable Development Law & Policy

Oil and gas extraction on public lands and waters is responsible for twenty percent of U.S. greenhouse gas emissions. If American public lands were their own country, they would be the fifth-largest greenhouse gas emitter in the world. As of 2020, only twenty percent of total U.S. electricity generation came from renewable energy sources. While renewable energy development on public lands has increased, most renewable energy comes from private lands. However, public lands contain immense renewable energy potential; for example, it is estimated that half of this country’s geothermal resources are found on public lands. Despite underutilized renewable energy potential …

Crumbling Crown Jewels: Addressing The Impact Of Recreational Overuse In America's National Parks, Ellen Spicer

Sustainable Development Law & Policy

National Parks are the “crown jewels” of America. However, in recent years they have become subjected to rampant overcrowding and overuse, so much so that they are being loved to death. The 1916 National Park Service (“NPS”) Organic Act calls for the conservation of “the scenery and the natural and historic objects and the wild life . . . and to provide for the enjoyment of the same in such manner and by such means as will leave [park sites] unimpaired for the enjoyment of future generations.” Due to increased visitation, one of the mandates of the NPS is being …

Pedal Into The Future, Elliot Wiley

Sustainable Development Law & Policy

Congress severely weakened the Electric Bicycle Incentive Kickstart for the Environment Act (E-Bike Act) when the bill was absorbed into the Build Back Better Bill. Electricity is the future, yet Congress has defanged a bill that could create significant progress in making bicycling a more accessible option for commuters.

Making Room For The Past In The Future: Managing Urban Development With Cultural Heritage Preservation, Kubra Guzin Babaturk

Sustainable Development Law & Policy

Few would disagree that art and architecture are indispensable aspects of the collective human experiences. But can there be “too much” of it? How much is “too much?” Could art and cultural heritage be a hindrance to progress, urbanization, and sustainability? Which art is worth saving? A growing question is how to balance and reconcile expanding urban needs with efforts to preserve cultural heritage. Many cities across the global face this fresh moral dilemma. Cities like Istanbul, Rome, and Cairo––heirs to great empires, with history and art cursing through every alley, are still modern-day metropolises, with ever-burgeoning populations and social …

Toward A Utah Intentionally Created Surplus Program, Devin Stelter

Sustainable Development Law & Policy

The Colorado River Basin continues to face a now two decade-long drought sparked by the drastic effects of climate change on the region. Climate forecasting predicts that the adverse effects of climate change will only increase in severity in years to come. These effects have led federal, state, tribal, and private actors operating in the basin to search for innovative and effective solutions to the significant water scarcity problems that will persist into the future. A closely linked threat stemming from Colorado River water scarcity is the prospect of a “Compact call” on Upper Basin water by the Lower Basin …

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Editor's Note, Juliette Jackson, Bailey Nickoloff

Sustainable Development Law & Policy

The Sustainable Development Law and Policy Brief (“SDLP”) is celebrating twenty-two years of legal scholarship on issues related to environmental, energy, natural resources, and international development law. SDLP continues to provide cutting-edge solutions to these legal issues in the face of the global COVID-19 Pandemic, while also transitioning back into a “new normal.” This issue is no different, as we published articles challenging our lawmakers and policy heads to address the impending needs of our communities to develop more sustainable infrastructure—needs that are only exacerbated by man-made climate change. We are proud of the work published, and we are forever …

Offshore Wind Energy Or Domestic Seafood? How The Department Of The Interior Can Facilitate Both Through Self-Binding Procedures, Adele Irwin

St. John's Law Review

(Excerpt)

The United States has many identities, including that of a coastal nation. With the largest Exclusive Economic Zone (“EEZ”) in the world, the United States has jurisdiction over more human activity in the ocean than any other country. Like people in most coastal nations, Americans are drawn to the ocean. Almost forty percent of the population lives in coastal counties that constitute less than ten percent of the nation’s land mass, and 58.3 million jobs and more than $9.5 trillion of gross domestic product are attributable to ocean resources annually. These figures have increased over time.

The diverse industries …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Changes In Household Recycling Behavior: Evidence From Panel Data, Joel Huber, Jason Bell, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This article uses a longitudinal national U.S. dataset with 232,309 pairs of same-household observations to estimate one-year or two-year changes in recycling behavior. Most households recycled at least one material, as 83% recycle paper, cans, glass, or plastic in the past year, with an average recycling rate of 2.8 materials. Recycling habits are stable, as 68% of households do not change the number of materials recycled from the previous year. Changes in county recycling are reflected in immediate changes in household behavior but at 25% of the change in the county recycling rate. Recycling rates are greater after being newly …

Repatriating The Buffalo: Nagpra’S Applicability To Yellowstone Bison Management, Saylor Soinski

Pace Environmental Law Review

The American bison—also known as the buffalo—holds great significance to many Native American people and cultures. Although bison populations have grown since their near destruction in the 19th century, the last remaining wild bison are under threat by the National Park Service’s Yellowstone management plan. Native representatives have had only a limited advisory role in creating the plan, and a number of Native individuals and advocacy groups have spoken out against it. This essay explores the possibility of applying the Native American Graves Protection and Repatriation Act to living animals for the first time, categorizing the bison as “objects of …

The Fast Fashion Industry: Formulating The Future Of Environmental Change, Alexa Maratos

Pace Environmental Law Review

This Note focuses on the harmful environmental impacts the fast fashion industry has created, and continues to create, on our planet. In the 1960s, consumer attitude towards clothing shifted drastically when demand for new, disposable clothing skyrocketed. These choices led fashion retailers to give life to the environmentally detrimental breed of “fast fashion.” Moving production from a domestic to an international level, increasing the amount of clothing collections on a yearly basis, and lack of transparency in supply chain are just a few examples of the dangers this industry has created for our planet. The fast fashion industry in particular …

Examining Uranium Mining In The Canyon Mine, Kasha Halbleib

Pace Environmental Law Review

In November 2020, Energy Fuels changed the name of one of its uranium mines from “Canyon Mine” to “Pinyon Plain Mine” in order to put distance between the mine and its historical controversies. However, changing the name does not change the potential harm the mine can cause. Canyon Mine sits fifteen miles from the rim of the Grand Canyon and is built on land sacred to the nearby Havasupai Tribe. The mine stands to not only destroy the health and well-being of the Havasupai people by contaminating their water supply with radioactive elements, but also to destroy the sacred ties …

The Big Chill: Are Public Participation Rights Being Slapp-Ed?, Rachel E. Deming

Pace Environmental Law Review

This article focuses on the Petition Clause of the First Amendment to the U.S. Constitution and addresses a confounding situation caused by Supreme Court precedents that give greater protection to persons who engage in illegal business practices than to citizens who petition their governments. This dichotomy is especially detrimental to environmental protection.

The crux of the conflict lies in which standard courts should use to determine whether the petitioning activity is protected: the subjective Free Speech standard grafted onto Petition Clause activities or the objective standard initially developed by the Supreme Court for petition activities in antitrust cases. The result …

Fatal Fertilizer: Pfas Contamination Of Farmland From Biosolids And Potential Federal Solutions, Molly Carey

Pace Environmental Law Review

Farmers across the country are increasingly discovering devastating levels of per- and poly-fluoroalkyl substances (PFAS) contamination in their soil, water, and farm products from the spread of biosolid fertilizer. Contamination from these “forever chemicals” is causing farmers to close their businesses, lose their incomes and property values, and confront potential ad- verse health effects from toxic exposure. PFAS are not federally regulated, leaving farmers with no options for federal assistance with contamination crises. This article examines federal regulations that govern the spread of biosolids as well as existing and proposed federal regulations of PFAS. To fill in federal regulatory gaps, …

Death By Committee: Reviving Federal Environmental Justice Legislation To Mitigate Disproportionate Impacts On Vulnerable Communities, Sara Babcock

Pace Environmental Law Review

This Note proposes legislation that provides an avenue for protecting the right to a clean and healthy environment by requiring agencies to consider vulnerable communities before initiating large-scale federal projects. Part I lays out the emergence of environmental justice issues in the United States, including its turning point. Part II introduces both successful and failed attempts at federal environmental justice legislation and analyzes why federal environmental justice legislation continuously fails. Part III dis- cusses how executive environmental justice action becomes pointless to the overall progression of environmental justice and examines President Biden’s progress in the first year of his presidency. …

Kolender’S Paper Earns Ohio Environmental Writing Award, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

When a Norfolk Southern train derailed in East Palestine, Ohio, spilling hundreds of thousands of gallons of toxic chemicals into the soil, water, and air, Zoe Kolender knew the cleanup efforts would be an arduous task. But she also knew something most people don’t—that environmental disasters like the Norfolk Southern derailment are treated differently depending on the areas in which they occur.

Kolender, a 3L at the Indiana University Maurer School of Law, had been studying the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) while developing a paper for Professor India Thusi’s seminar in Critical Race Theory. CERCLA …

Towards Meaningful Research And Engagement: Indigenous Knowledge Systems And Great Lakes Governance, Deborah Mcgregor, Nicole Latulippe, Rod Whitlow, Kristi Leora Gansworth, Lorrilee Mcgregor, Stephanie Allen

Articles & Book Chapters

For thousands of years, Indigenous peoples governed their relations in the Great Lakes region, guided by distinct political, legal, governance, and knowledge systems. Despite historic and ongoing exclusion of Indigenous peoples from Great Lakes governance in the Canadian context and other assaults on Indigenous sovereignty, authority, jurisdiction and responsibilities, Indigenous peoples have maintained their relationships with the Great Lakes. In recent years, Indigenous knowledge systems (IKS) have made inroads in Great Lakes governance, thanks primarily to First Nation political advocacy. However, it remains a challenge to include Indigenous knowledge and implement approaches that bridge Indigenous and Western ways of knowing. …

Endnotes, Sdlp

Sustainable Development Law & Policy

No abstract provided.

Toxic Criminals: Prosecuting Individuals For Hazardous Waste Crimes Under The United States Resource Conservation And Recovery Act, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy

Sustainable Development Law & Policy

The U.S. Resource Conservation and Recovery Act (“RCRA”) contains criminal provisions which allow prosecutors to seek substantial penalties when individuals commit hazardous waste crimes involving significant harm or culpable conduct. However, our empirical understanding of enforcement outcomes is limited. We used content analysis of 2,728 criminal prosecutions derived from U.S. EPA criminal investigations from 1983 to 2021 and examined all prosecutions of individual defendants for RCRA violations. Our results show that 222 prosecutions were adjudicated, with over $72.9 million in monetary penalties, 755 years of probation, and 451 years of incarceration levied at sentencing. Seventeen percent of prosecutions centered on …

It's Time To Trash Consumer Responsibility For Plastics: An Analysis Of Extended Producer Responsibility Laws' Sucess In Maine, Marina Mozak

Sustainable Development Law & Policy

Consumer responsibility for waste is a historic relic, dating back to a time when nearly all of a consumer’s waste was compostable, reusable, or marketable. Today, with the rise of plastics and complex goods like electronics, consumers lack the expertise, time, and ability to personally break down the products they consume for reuse. Much of our household waste goes to the curb and into a single stream of municipal solid waste (“MSW”). This includes a variety of wastes which each require specialized processing. Recycling this complex waste falls to municipalities which are woefully underfunded and underqualified to process such complex …

Ohio House Bills 168 And 110: Just Another Drop In The Bucket For Brownfield Redevelopment?, Mia Petrucci

Sustainable Development Law & Policy

This article examines Ohio House Bills 168 and 110. These House Bills provide liability protection to purchasers of brownfield sites, allocate $500 million dollars to brownfield funding—with $350 million allotted for investigation, cleanup, and revitalization of brownfield sites and $150 million for demolition of vacant/abandoned buildings—and create a new Building Demolition and Site Revitalization Program, for the revitalization of properties surrounding brownfield sites. In the first three Sections of this article, the concept of brownfield redevelopment is introduced, the associated challenges with brownfield projects are discussed, and attempts by federal and state governments to address brownfield remediation challenges in the …

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.