Law Commons^™

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2015, the United States Court of Appeals for the Eleventh Circuit decided novel issues in two cases under the Clean Water Act (CWA). In Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, the court held remand of a Corps of Engineers permitting decision for reconsideration without also vacating the permit is a remedy within the court's discretion and was appropriate under the circumstances. In Riverkeeper v. U.S. Environmental Protection Agency, the court held appellate review of a non-final response by the Environmental Protection Agency (EPA) to a petition to withdraw Alabama's authority to administer the …

Treading Well Beyond The Ecological To Account For Socioecological Systems And Human Rights In Climate Adaptation Law, Ann M. Eisenberg

Faculty Publications

No abstract provided.

Bruce Huber Was A Guest On Npr's All Things Considered, "What The Keystone Xl Pipeline Decision Actually Means", Bruce R. Huber

Bruce R Huber

President Obama has rejected the application to complete the Keystone XL pipeline. Bruce Huber, professor of energy law at the University of Notre Dame, talks about the Keystone pipeline decision.

Environmental Protection By Coastal States: The Paradigm From Marine Transport Of Petroleum, Joseph C. Sweeny

Georgia Journal of International & Comparative Law

No abstract provided.

The Battle Against Antimicrobial Drug Resistance: Analyzing Recent Developments And The Necessity For Major Agricultural Reforms, Nikki Sanford

William & Mary Environmental Law and Policy Review

No abstract provided.

The Snakehead War: Administrative Rule-Making And Legislative Strategies To Minimize Destruction By The Northern Snakehead, Joshua Rice

William & Mary Environmental Law and Policy Review

No abstract provided.

Aransas Project V. Shaw: The Fifth Circuit’S Incorrect And Attenuated Proximate Cause Analysis On What Killed The Whooping Crane, Brian Reagan

William & Mary Environmental Law and Policy Review

No abstract provided.

Consequences Of Cambodia’S Rubber Boom: Assessing The Governmental, Environmental, And Human Rights Violations In The Industry’S Current Regulatory Framework, Ross Natividad

William & Mary Environmental Law and Policy Review

No abstract provided.

Saving The Orange: How To Fight Citrus Greening Disease (And It’S Not Through Genetic Engineering), Evan Feely

William & Mary Environmental Law and Policy Review

No abstract provided.

Wake Effects, Wind Rights, And Wind Turbines: Why Science, Constitutional Rights, And Public Policy Issues Play A Crucial Role, Kimberly E. Diamond

William & Mary Environmental Law and Policy Review

Developers of onshore, utility-scale wind farms seek to purchase or lease parcels on which commercial wind turbines will be sited, carefully selecting each particular parcel based on its access to high wind speeds and unobstructed wind flowing across it in the free stream. Accordingly, a wind farm developer’s purchase or lease of a tract of land generally entails a large monetary investment and carries with it an investment-backed expectation that such land will be used for its originally intended purpose. Wind wakes, which disrupt the wind velocity in the free stream, cause downwind turbines to encounter diminished wind speeds and …

Designing A Better Carbon Tax: Only With Reinvestment, Stephan Sewalk

William & Mary Environmental Law and Policy Review

The objective of a tax on emissions is to curtail total discharges. Ever since Rio and Kyoto, this seems to be an elusive goal. Many papers have been written on the topic, but none actually solve the dilemma of how to proactively reduce emissions. This Article seeks to solve this issue by designing a better carbon tax to reduce U.S. emissions 90% by 2050. The first step needed is to extend and explain the economics of a carbon tax with reinvestment. I examine and graphically show the economics of the tax and subsequent reinvestment of revenues into building clean power …

Litigation Against Fracking Bans And Moratoriums In The United States: Exit, Voice And Loyalty, Christopher J. Hilson

William & Mary Environmental Law and Policy Review

A number of U.S. states, counties and municipalities have responded to the public health and environmental concerns surrounding fracking by imposing bans or moratoriums on unconventional oil and gas drilling. These restrictions have, in recent years, given rise to litigation challenges by oil and gas companies and by property owners deprived of potential revenues. The current Article begins by examining precisely who has litigated. Have large companies dominated or is it mostly smaller independents? Is there a difference in litigation rates between private and public companies? The Article then considers how Hirschman’s ideas of exit, voice and loyalty might apply …

Coercing Collaboration: The Chesapeake Bay Experience, Jamison E. Colburn

William & Mary Environmental Law and Policy Review

This Article uses a detailed case study of the Chesapeake to describe an emergent model of intergovernmental administration tailored to address our largest-scale environmental problems. The Obama EPA’s “total maximum daily load” (“TMDL”) in the Chesapeake has yet to be replicated. But it should be. The TMDL and its supporting norms were unique as an operational plan, achieving a level of transparency, accountability, means/ends rationality, and continuous improvement that were unprecedented at its scale. And whether this model can be replicated elsewhere turns out to be as much a question of law as of politics.

A Legacy That No One Can Afford To Inherit: The Gold King Disaster And The Threat Of Abandoned Hardrock Legacy Mines, Kelly Roberts

Journal of the National Association of Administrative Law Judiciary

This article begins with a description of the alarming matter of abandoned mines, mainly due to the issue of acid mine drainage. Then, it provides a detailed account of the Gold King disaster, including the current state of affairs surrounding the question of EPA liability. Next, it provides a simplified overview of some of the federal statutory hurdles that make it difficult to tackle remediation of abandoned hardrock mines. In wake of Gold King, another round of legislation has been proposed that might help, and these proposed bills center on familiar themes of reforming the General Mining Law of 1872 …

Rights Of Publicity: A Practitioner's Enigma, Gil N. Peles Esq.

Journal of Intellectual Property Law

No abstract provided.

Environmental Law - Oil Pollution Control - In The Absence Of Federal Preemption And Any Fatal Conflict Between Statutory Schemes, A State May Constitutionally Exercise Its Police Power To Provide For Cleanup Of Oil Spillage And For Recoupment Of Costs Concurrently With The Federal Government, Mary E. Deal

Georgia Journal of International & Comparative Law

No abstract provided.

Weather Modification: A Modest Proposal, Lawrence A. Weirs

Georgia Journal of International & Comparative Law

No abstract provided.

International Fisheries Regulation, John P. Rivers

Georgia Journal of International & Comparative Law

No abstract provided.

Complexity Analysis: A Preliminary Step Toward A General Systems Theory Of International Law, James L. Hildebrand

Georgia Journal of International & Comparative Law

No abstract provided.

Focusing On Human Responsibility Rather Than Legal Personhood For Nonhuman Animals, Richard L. Cupp Jr.

Pace Environmental Law Review

We should focus on human legal accountability for responsible treatment of nonhuman animals rather than radically restructuring our legal system to make them legal persons. This essay, provided at the kind invitation of the Pace Environmental Law Review (PELR) and Steven Wise, President of the Nonhuman Rights Project, Inc., outlines a number of concerns about animal legal personhood. It does so primarily in the context of the plaintiff’s brief in The Nonhuman Rights Project, Inc. v. Lavery, filed in the New York Supreme Court, New York County. The first Lavery lawsuit (Lavery I) was filed in Fulton County in late …

Understanding The Lloyd Moratorium And The Science That Supports It, Sarah J. Meyland

Pace Environmental Law Review

This article examines the background to the enactment of the Lloyd Moratorium, the role of science, and a discussion of why limits on certain groundwater use are appropriate. Section Two reviews the history of the Lloyd Moratorium and the challenges to it. The role of the State in implementing the moratorium is also considered. Section Three describes the current guidelines for Lloyd well permits. Section Four reviews the vulnerability of the Lloyd aquifer. Section Five discusses the necessity of setting a high bar for Lloyd aquifer access. Section Six concludes with an outline of how the Long Island aquifer system …

Extraterritoriality, Externalities, And Cross-Border Trade: Some Lessons From The United States, The European Union, And The World Trade Organization, Max S. Jansson

Pace Environmental Law Review

In this article, process and production method (PPM) rules are analyzed under three jurisdictions: the United States, the European Union (EU), and the World Trade Organization (WTO. The approach is justified by the fact that their rules on interstate trade reflect very similar basic objectives related to anti-protectionism. Moreover, the regimes, to a large extent, share the same structure of rules on prohibition balanced with rules on justification. All in all, the regimes reveal similar syntax. The comparability of the U.S. Dormant Commerce Clause Doctrine with both WTO law and EU free movement law has been highlighted already in previous …

Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner

Pace Environmental Law Review

This article considers what role, if any, can tribal environmental ethics play in the re-examination and consideration of American environmental ethics? The answer—quite a substantial role. Tribes must straddle two worlds—a traditional one and one dominated by Western culture and values. As a result of this dichotomy, tribes are necessarily experts at adaptation and innovation. To demonstrate the value of looking to tribal environmental ethics when considering alternative ethical paradigms for the United States, this article begins by discussing the link between environmental ethics and policy making. With this understanding in place, the article then examines the importance of environmental …

Learning To Live With The Trickster: Narrating Climate Change And The Value Of Resilience Thinking, Robin Kundis Craig

Pace Environmental Law Review

This article is based on the 2015 Pace Garrison Lecture that occurred on April 1, 2015. Fittingly for a talk given on April Fool’s Day, this article focuses on tricksters. It posits that framing climate change as one incarnation of a mythological trickster can give us a better cultural narrative framework for thinking about environmental, natural resources, and energy law and policy in a climate change era. The trickster narrative can helpfully displace the dominant engineering framework that informs most of American10 environmental, natural resources, and energy law and policy and open the way to a more productive policy context …

Proactive Natural Disaster Recovery And Resilience In The Northeast: Should Governments Exercise Buyout Programs And, If Necessary, Eminent Domain, To Prevent Disaster?, Stellina Napolitano

Pace Environmental Law Review

In light of the devastation left behind by the three most recent natural disasters in the northeast region—Hurricane Irene, Tropical Storm Lee, and Superstorm Sandy—local and state governments are now implementing “buyout programs” in order to protect the future of beachfront and flood-prone communities. These programs may not be a perfect solution, so, while positions differ on whether to pursue taking private properties by use of eminent domain, it may be a favorable option in order to attain the ultimate goal of safety and resilience against future disaster. Section II of this paper will analyze the background and impacts that …

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 …

City Sustainability Reporting: An Emerging & Desirable Legal Necessity, Adam J. Sulkowski

Pace Environmental Law Review

This article will begin with a brief history of sustainability reporting, including recent developments related to its adoption by cities. The author will then review two major trends that, considered together, indicate sustainability reporting should be viewed as an emerging legal necessity for municipalities in the United States. First, the exemption shielding cities from the disclosure requirements of securities laws has eroded. Second, sustainability disclosures now fit the definition of what must—as a matter of materiality, if not specific mandates—be reported to investors. This means that the cities that have collectively issued over $3.67 trillion in securities2 should all be …

Troubled Water: An Examination Of The Npdes Permit Shield, Stephanie Rich

Pace Environmental Law Review

In this comment I argue for a narrow interpretation of the Clean Water Act (CWA) permit shield by analyzing the recent federal cases addressing the shield’s scope. A narrow interpretation calls for a greater level of compliance and disclosure on behalf of the permit holder in order to invoke the shield’s protection. This argument also includes a higher standard of “reasonable contemplation” of pollutants on the part of the regulator. The first section of this comment gives a brief background of the CWA, the National Pollutant Discharge Elimination System (NPDES), and the permit shield provision. The next section presents the …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Pace Environmental Law Review

This article argues that neo-classical economics places an emphasis on short-term gain over precaution, and in doing so, places the lives of a myriad of individual humans—and even the species itself—at risk. Given the foreseeable risks, if humanity wants to survive longer, we need to rethink our economic principles and priorities and the relationship between economics and law.

I begin with a most brief overview of the various sources of risk to the human species and its life support system. Then I will move on to look at how neo-classical economics interacts with significant risk.

Finding Opportunities To Combat The Climate Change Migration Crisis: The Potential Of The “Adaptation Approach”, Mariya Gromilova

Pace Environmental Law Review

The aim of this article is to demonstrate the benefits of applying adaptation approach in conceptualising the issue of climate-induced population movement and its potential to respond to the main priorities to be addressed in the context of population movement induced by climate change. This article proceeds with Section 2, which provides an overview of the main difficulties to conceptualization of the issue of climate induced population movement from empirical and legal perspectives. Section 3, drawing upon the state of play presented above, identifies the main priorities that have to be addressed. Section 4 focuses on the opportunities the Cancun …