Law Commons^™

Approaches To Sea Level Rise And International Law: A Comparative View Of Emerging Policy Responses By The African And The Americas Regions, Charles Chernor Jalloh

Articles

No abstract provided.

Climate Change Adaptation And The Protection Of Indigenous Peoples’ Land & Resources In Latin America, Terrence Neal

Faculty Scholarship

No abstract provided.

Natural Gas And Net Zero: Mutually Exclusive Pathways For The Southeast, Adam D. Orford

Faculty Scholarship

Climate policy increasingly focuses on pathways to achieving net zero greenhouse gas emissions by 2050, providing a clear standard against which to evaluate energy system planning. Examining the current and projected fuel mix of the electric power sector in the southeastern United States shows that an ongoing transition to natural gas for electricity risks locking in decades of greenhouse gas emissions at levels fundamentally incompatible with net zero goals. Furthermore, southeastern regulatory proceedings are not well designed to engage with this reality, although useful regulatory models are emerging. Natural gas will remain an important part of the southeastern fuel mix …

Manure, Methane, And Money: The Anaerobic Digester Disaster In California, Pegga Mosavi

Animal Law Review

The small, idyllic family farms that come to mind at the first mention of farming are all but gone, replaced by enormous factories that churn out animals at record speed, with little regard for their health and welfare. These factory farms produce a host of issues, including pervasive water and air pollution, particularly in vulnerable agricultural communities like those of the San Joaquin Valley in California. While the detriments of the factory farm model are numerous, contribution to climate change in particular has garnered significant attention. Animal agriculture in the U.S. produces 36% of the country’s methane, a greenhouse gas …

Kangaroo: Fields Of Struggle, Tamasin Ramsay

Animal Law Review

The Kangaroo, a symbol of the Australian landscape, is under attack by the Victoria government. Viewed as overabundant vermin, colonial law often authorizes killing many Kangaroos, a position that is directly at odds with the ancient law and custom of First Nations People. While Victoria law purports to protect the Kangaroo, in reality the current structure does more harm to the animal than good. This Article reviews the fields of struggle represented by the living tension of colonial law and chthonic law in Victoria and suggests genuine collaboration with First Nations and First Peoples to navigate this fraught terrain. Victoria …

From The United States To Pakistan: Can Climate Change Pave Toe Way For An International Right To Animal Rescue In Disasters?, Altamush Saeed

Animal Law Review

Over 69% of the world’s wildlife has been lost between 1970 and 2018. Catastrophic events like the Australian bushfires, the Amazon rainforest fires, and the ongoing floods in the United States have led to the deaths of several billion animals. Ongoing apocalyptic floods have put one-third of Pakistan underwater and led to the deaths of over a million livestock animals. Climate change, human rights, and animal rights have become so intertwined that all life—including human, nonhuman, and plant life—is on the brink of extinction.

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

Scholarly Works

It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

New York’S Professor John R. Nolon: A National Leader In Land Use Law With A Large Impact Across The Hudson Valley And The State Of New York, Patricia E. Salkin, Samuel Stewart

Scholarly Works

As Professor John R. Nolon steps down from active law teaching, this article reflects not only on his contributions as a national thought leader in the field, but also on how he has a hand in changing the land use and conservation patterns in New York while promoting affordable housing and combating discrimination.

2023 Update: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

This is the 2023 update of the Water Rights Manual. The archival version is also available in our digital repository. 

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

Faculty Scholarship

Abstract

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has repeatedly found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS), and may entail substantial deployments of this technology. There is significant uncertainty, however, about the level of lifecycle greenhouse gas (GHG) reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice advocates …

24/7 Clean Energy, Todd Aagaard

University of Colorado Law Review

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 …

Zeroing In On Net-Zero: From Soft Law To Hard Law In Corporate Climate Change Pledges, Daniel C. Esty, Nathan De Arriba-Sellier

University of Colorado Law Review

One hundred and ninety-seven nations endorsed a target of net-zero greenhouse gas (GHG) emissions by midcentury in the 2021 Glasgow Climate Pact. As countries around the world have begun to develop their plans for deep decarbonization, it has become evident that the private sector will need to deliver much of what is required for the transition to an environmentally sustainable economy. The commitment to net-zero emissions by the year 2050 has therefore cascaded to the corporate world, leading hundreds of major companies to make their own net-zero GHG pledges. What constitutes a meaningful net-zero corporate pledge, however, remains unclear—and what …

The Dark Sun Network, Frédéric Gilles Sourgens

University of Colorado Law Review

Climate scientists agree that climate change will soon require the deployment of a highly dangerous geoengineering approach known as “solar radiation management.” Solar radiation management uses chemical or physical barriers to solar energy entering the atmosphere and thereby forces global temperatures downwards almost immediately by creating “artificial shade.” Problematically, the unilateral deployment of domestic solar radiation management approaches can have different and potentially devastating effects around the world, even if they help the country deploying the approach to limit the worst climate change consequences at home. So far, there is no global governance framework that can guide the development and …

Environmental Evidence, Seema Kakade

University of Colorado Law Review

The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including criminal policing, housing, and health care. After all, the people with on-the-ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as nonexperts with little valuable knowledge. This Article explores the lived experience with pollution as …

Climate Change And Modern State Common Law Nuisance And Trespass Tort Claims, Jack Wold-Mcgimsey

University of Colorado Law Review

This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and global implications of climate change, courts may find that isolated states cannot set binding precedents …

Tribal Air, Jonathan Skinner-Thompson

Publications

Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.

This Article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.

This Article tests that …

Accounting For Climate Impacts In Decisionmaking, Mark S. Squillace

Publications

Every significant decision made by government agencies, and many made by private organizations, impacts climate change. Ignoring those impacts is increasingly unacceptable. But how to account for a decision’s impact on the climate is far from clear. This article seeks to answer that question in the context of the greenhouse gas (GHG) emissions that will likely result from a proposed action and begins with a detailed description of the environmental impact assessment (EIA) process. EIA is crucial to understanding the likely consequences of a proposed action, including the climate-related consequences. EIA also serves as the primary vehicle for estimating GHG …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

The Environmental Democracy That Was, Then Wasn't, But Could Be Again, Daniel E. Walters

Faculty Scholarship

Over the 50 years since former EPA Administrator William D. Ruckelshaus wrote The Citizen and the Environmental Regulatory Process, much has changed. On the one hand, participation in environmental regulatory decisionmaking has flourished, but on the other, Ruckelshaus's prediction of growing consensus around the environmental movement has proven illusory. In this short essay reflecting on participation in environmental regulatory decisionmaking, I highlight what Ruckelshaus was right about and, just as importantly, where his vision of environmental participatory governance might need some updating. Looking back at the dawn of environmental democracy in the regulatory process and comparing it to the …

Climate Entrenchment In Unstable Legal Regimes, Martin Lockman

Faculty Publications

American climate law is the subject of serious and ongoing debate, and policy change is part of the ordinary process of democratic governance. However, in recent years some policymakers have deliberately undermined climate action by injecting legal instability into American climate law. This Essay addresses a simple question: how can Americans build necessary climate infrastructure in the face of an unstable political and legal regime?

Some readers may be shocked by this question. Indeed, this framing is intentionally provocative. However, this Essay recognizes a simple fact: not all American polities, and not all American policymakers, are trustworthy and predictable partners …

Kerangka Praktik Kenegaraan Dalam Narasi Apriori Pembangunan Berkelanjutan Sebagai Hak Konstitusional: Sentralisasi Pendekatan Ekosentris Dalam Melawan Kenisbian Utilitas Pendekatan Antroposentris, Abdurrahman Al-Fatih Ifdal

Jurnal Konstitusi & Demokrasi

Sustainable development is a colossal narrative of state elites to institutionalize the right to development which, instead of being oriented towards harmonization of development efforts with efforts to protect the environment, is actually based on human interests. The inherent causality of this effort has an impact on systemic environmental damage in various countries. When the environment is no longer able to recover itself according to the timeline of meeting the needs of human civilization, an ambitious approach such as ecocentrism needs to be used as a counter-narrative to the anthropocentrism approach which tends to be relative: it looks useful, but …

The Largest Global Producers Of E-Waste And The Need For Change, Jane Chan

Brooklyn Journal of International Law

E-waste, short for electronic waste, is a term used to describe end-of-life electronic products. In recent years there has been a sharp rise in the demand for electronic products, and production has ramped up to meet the demand. A landslide of e-waste is being generated in tandem, exacerbated by increased global access to electronic devices, quickening innovation rates, and device obsolescence. According to projections by the UN’s Global E-waste Monitor 2020, e-waste is the most rapidly growing domestic waste-stream in the world. Due to the hazardous nature of the components contained in many electronic products, the proper handling of e-waste …

Corporate Innovation: One Path To More Sustainable Big Business, David Nows

University of Cincinnati Law Review

No abstract provided.

Invasions Of Dicamba Particles: Holding States Accountable For Taking Offsite Property Owners' Right To Exclude, Terence J. Centner

University of Cincinnati Law Review

In 2017, special formulations of dicamba herbicides known as over-the-top products were marketed for post-emergent use on genetically engineered soybeans and cotton. The use of these products was accompanied by considerable herbicide drift and volatilization that harmed millions of acres of nearby crops. In 2018, the EPA added requirements to the products’ labels to preclude offsite injuries. However, for each growing season during 2018-2021, unacceptable offsite injuries were reported in the major soybean and cotton producing states. Because they received reported injuries, state agencies issuing new registrations for dicamba products in 2018 and 2020 knew offsite spray drift and volatilization …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

Deitche Earns Karen Hastie Williams Fellowship, James Owsley Boyd

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

La’Kendra Deitche, a 2L from Fort Wayne, Indiana, has been selected as one of eight—and the only one from outside the Washington, D.C. area—Karen Hastie Williams Leadership Fellows, a prestigious fellowship awarded by the D.C. Bar.

Deitche will complete a leadership orientation session followed by a six-month fellowship, from January through June 2023, on the D.C. Bar’s Environment, Energy, and Natural Resources community. The D.C. Bar offers 20 communities that help members develop expertise in specific practice areas.

Regulating The Autonomous Ocean, Annie Brett

Brooklyn Law Review

The rapid rise in aerial drone use and the future deployment of self-driving cars have both spurred extensive legal and social debate. Autonomous vessels on the ocean, on the other hand, have largely escaped detailed scrutiny, even as they are reshaping the landscape of human interactions with the ocean and creating novel challenges for national and international legal regimes. Autonomous vessels are being captured while spying on other countries, raising concerns about national security and surveillance regimes. The Coast Guard is using enforcement loopholes to justify abandoning many of their autonomous vessels at sea, in flagrant violation of national and …

Cracks In The Clean Air Act: Fixing The Foundation Of Us Climate Policy, Emily Joshi-Powell

Brooklyn Law Review

The urgent need to cool the atmosphere and slow the effects of climate change is evident all around us. However, half of Congress and large swaths of the American public are still not on board, and the highest Court in the land just knee-capped the EPA’s power to regulate effectively. This note looks at the implementation and amendment of the Clean Air Act and subsequent deviation from the Act’s bipartisan roots to its current highly political polarizing status. It then reviews twenty-first century caselaw affecting climate policy to highlight statutory and judicial barriers to progress. Culminating with the recent Supreme …

Federal Food Safety Framework: Where Does Seaweed Fit In?, Catherine M. Janasie

Journal of Food Law & Policy

When one mentions seaweed as food, what do you think of? The dried nori used to wrap your sushi roll or perhaps the seaweed salad on the side? In fact, seaweed has many uses, including as both a food source in its own right and as a food additive. While the seaweed market has been dominated by East Asian countries, seaweed is cultivated in about 50 countries, and the U.S. seaweed industry is steadily growing. The global seaweed industry is currently worth about $6 billion annually. Food products for human consumption account for about 85% of this value.

Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, Jessica A. Wentz, Benjamin Franta

Sabin Center for Climate Change Law

Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A …