Law Commons^™

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

Transitioning To Regenerative Agriculture: One "Net-Zero" Pledge At A Time, Alexia Brunet Marks

Publications

As climate change intensifies, food sector multinational companies (MNCs), like Nestlé; Mars, Inc.; Unilever; PepsiCo; and Danone, face increasing pressure to reach net-zero by 2050, whereby they would reduce and ultimately eliminate carbon dioxide emissions from their supply chains by 2050. Carbon dioxide emissions are a major business liability, decreasing a firm’s value an average of $212,000 for every one thousand metric tons produced. As companies seek to align their pledges with regional, national, and subnational climate goals, they are legally required to comply with a growing number of disclosure rules for foods entering the United States and the European …

Is One Cow’S Waste Another (Hu)Man’S Treasure? Exploring The Environmental And Energy Impacts Of Manure Biogas, Katie Thompson

Animal Law Review

There is no question that manure biogas, a form of natural gas derived from animal waste, is quickly becoming the most valuable product supplied by factory farms, known also as concentrated animal feeding operations (CAFOs). Manure biogas can be used to produce heat, electricity, or transportation fuel, but its greatest profit stream rests in the myriad government credits and subsidies it can garner. Although turning trash into treasure by giving waste a new life may appear laudable and worthy of such investment, this Article argues that manure biogas is far from a sustainable solution to the United States’ environmental and …

Ecosocialism, Degrowth, And Global South Thought: Critical Legal Transformations, Nicholas F. Stump

William & Mary Environmental Law and Policy Review

This Article explores how Critical Legal Research (CLR) can help drive transformations of our ecological political economy towards true system change. CLR entails a critical legal theory–informed approach to legal and broader socio-legal research. After articulating the CLR framework, this Article explores its potential in the context of leading and intertwined bodies of theory for transformative change: ecosocialism, degrowth, and Global South and Indigenous thought. Next, this Article offers concrete avenues to help pursue such emancipatory change—i.e., specifically focusing on the popular conception of an “ecosocialist transition.” Ecosocialist transition strategies include non-reformist reforms, dual power, a radical just transition, and …

The North American Gap Ungulates Must Migrate Physically And Legally: Elk As A Case Study, Alex Wendlandt

Wyoming Law Review

Humans have tracked elk hoof prints in North America since ancient times, recognizing the significance of these migratory ungulates in culture, mythology, dietary value, and utility. As migratory ungulates, elk respond to changes in their environment by migrating to and from their summer and winter ranges. Today, elk migrations continue across the jurisdictional boundary of the northern United States and southern Canada, spreading ecological and economic benefits with each track they make. Unfortunately, ungulate migration is an “endangered phenomenon” due to loss of connectivity and loss of habitat. While the United States and Canada have acknowledged the importance of, and …

“There Is No Fashion On A Dead Planet:”1 How A Mandatory Reporting Directive Shared By The Us And The Eu And Centered On Transparency Could Be The First Step To Increased Sustainability In The Fashion Industry, Adrienne Redman

Northwestern Journal of International Law & Business

The fashion industry hangs on self-expression and individualism, yet our methods of consumption and their resulting environmental impacts are far from an individualistic concern. This paper examines the global fashion industry’s substantial contribution to pollution, resource-depletion, and waste as evidence that the self-regulation model is insufficient to curb the environmental footprint of the industry. Self-regulation presumes that consumer awareness and the desire to purchase sustainably will be enough to limit the industry’s environmental impact. However, this presumption is undermined by a lack of standardized and enforceable regulations necessary for consumer-decision making. Instead, greenwashing and deceptive environmental claims have pervaded the …

Uncharitable Think Tanks, Faith Stevelman

FIU Law Review

As people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.

Ironically, the failure reflects other features of tax law that incentivize using think …

Introduction, Sydney Gass

FIU Law Review

No abstract provided.

Climate Finance Needs More Market Discipline, Richard Morrison

FIU Law Review

The market for climate and sustainability-driven products and services is potentially very large and thus attractive to many investors and entrepreneurs. However, its current reliance on public subsidies and capital flows is a significant weakness that often goes unacknowledged.

Constitutionalizing Climate Rights, Mark Nevitt

FIU Law Review

No abstract provided.

“Modernizing Regulatory Review”: A Short-Lived Abandonment Of More Than Four Decades Of Regulatory Review And Benefit-Cost Analysis, Richard Belzer

FIU Law Review

"President Biden’s Modernizing Regulatory Review (MRR) initiative fundamentally altered regulatory procedures, practices, and centralized oversight that had been in place since 1981 when they were formalized by President Reagan in Executive Order 12,291. MRR proceeded in three phases. First, a Memorandum issued on President Biden’s first day in office telegraphing the broad outlines of the plan. Second, more than two years later, an Executive Order codifying the MRR memorandum was issued, combined with implementation guidance issued by the Office of Management and Budget (OMB). And third, OMB guidance on the conduct of regulatory BCA was radically revised, clearly with an …

The Hunger Games: Food As A Right, Not A Privilege, Camesha F. Little

FIU Law Review

Despite the United Nations' explicit declaration that all humans have a right to food, food insecurity and hunger remain persistent problems in the United States and around the globe. The dystopian landscapes depicted in novels such as The Hunger Games and Parable of the Sower—societies crippled by poverty, oppression, and pervasive starvation—resonate with sobering contemporary realities. This Article examines existing food laws, food rights, and the current protections safeguarding the United States food supply from a humanitarian perspective. Ultimately, this Article argues that the human right to food must expand to encompass a right to healthy or natural food, and …

Dirty Water, Breanna Booker, Michael S. Sinha

All Faculty Scholarship

Plastics are taking over. Every day, humans are exposed to plastic pollutants in a variety of ways. From the water we use to water crops in the field, to the water in our taps, to the liquids we drink from plastic containers, it can be found virtually anywhere you look. Not only is it everywhere in the environment, but it is also within us. It builds up in our bodies. Plastics have become a major public health concern; researchers estimate that the total healthcare cost related to plastic chemicals may be as much as $250 billion.[1]

Water has always …

Into The Legal “Twilight Zone”: State Tenth Amendment Jurisdiction Displacing Climate Supremacy, Steven Ferrey

Lewis & Clark Law Review

The Supremacy Clause of the Constitution notwithstanding, western states have utilized their reserved Tenth Amendment Constitutional authority, upheld by federal circuit courts, arbitrarily to block their adjacent states’ sustainable infrastructure to address climate change. The Biden Administration set in motion a rapid electrification of the entire U.S. economy via three different new laws enacted sequentially in 2021, 2022, and 2023. A re-directed federal executive branch now oversees these programs and laws. This Article analyzes how each of those three laws suffers from a critical omission plaguing this most significant infrastructure program in the last half century—now forecast counter-intuitively by some …

Is Originalism Bullshit?, Michael L. Smith

Lewis & Clark Law Review

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

The Public Trust Doctrine And Lake Abert: Saving Oregon’S Only Salt Lake, Joseph Arzt

Lewis & Clark Law Review

The public trust doctrine creates a relationship between states and their citizens under which the states are entrusted with protecting natural resources for public use. Though Oregon recognizes the public trust doctrine, recent decisions from Oregon’s Supreme Court have displaced and fractured this doctrine, leaving the current legal landscape surrounding the public trust doctrine in disarray. This Note focuses on Lake Abert, Oregon’s only saline lake, which in recent years, due to mismanagement and neglect, has undergone dramatic ecological shifts. By looking at arguments rooted in Oregon’s Constitution, as well as judicial approaches taken in neighboring states, this Note examines …

Colorado River Insights, 2025: Dancing With Deadpool, Colorado River Research Group

Books, Reports, and Studies

No abstract provided.

Trump Has A Point On Trade, William Snape

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Real Story Of Nepa Litigation In Clean Energy Permitting, Anna Mance

Faculty Journal Articles and Book Chapters

Environmental protections and the processes of the administrative state are under attack. In recent years, the National Environmental Policy Act (NEPA) has drawn outsized criticism from across the political and legal spectrum as a major impediment to climate friendly infrastructure and the clean energy transition. NEPA enables private groups to challenge development through litigation. Critics are moving to strip public oversight over federal permitting based on claims that these private groups bring largely frivolous environmental claims to court, driving up costs for developers and delaying progress responding to climate change. But is this really true?

Drawing on an original dataset …

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Faculty Scholarship

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

The Need To Explore The Potential Of Marine Cdr With A One-Earth Strategy: A Guide For Policy-Makers, Philip W. Boyd, Jean-Pierre Gattuso, Minhan Dai, Louis Legendre, Terre Satterfield, Romany M. Webb

Sabin Center for Climate Change Law

Rapid, deep and sustained reductions in carbon dioxide (CO₂) emissions are essential to achieve the goals of the Paris Climate Agreement of keeping the long-term global average surface temperature increase well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C . In addition, the 2021 IPCC Report explains that carbon dioxide removal (CDR) will be needed to offset residual CO₂ emissions from activities and sectors that are difficult to decarbonize by 2050. The objective of CDR is removal of atmospheric CO2 from residual emissions and its durable storage in reservoirs, which is an additional critical element …

The Fiduciary Code Of Capital And Climate Change, Seth Davis, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

Fiduciary law is part of the “code” for the management of capital, as Katharina Pistor has conceptualized law. Climate activists, attorneys, investors, and international organisations have turned to fiduciary law for legal solutions to the ongoing problem of inadequate corporate and state action in response to climate change. Our thesis is that the turn to fiduciary law by norm entrepreneurs is an attempt to encode a concern for climate change within the management of capital. We make two contributions to the literature on private law and climate change. First, we rigorously identify the features of fiduciary law that make it …

Geopolitical Changes And Futures Of Ccamlr, Nengye Liu

Research Collection Yong Pung How School Of Law

The Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) was negotiated in the late 1970s in the shadow of the Soviet Union’s expanding interest in Antarctic krill fisheries. The development of a management regime for the krill fishery in the remote Southern Ocean vividly reflects geopolitical changes of the world at that time. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is similarly being affected by geopolitical forces from the wider international system today. This chapter therefore first reviews the historical background for the establishment of the CCAMLR. It then provides an overview of …

Environmental Law And Social Mistrust- How The Repeal Of The Chevron Doctrine May Hinder The Epa And More, Rebecca R. Collins

Honors Undergraduate Theses

I am specifically studying the effects of a recent Supreme Court decision will have on administrative law and specifically on the EPA. Simply put, the decision is likely going to foster distrust within the EPA and decisions that are made within environmental law, as the shift goes away from scientific experts, but to less educated legal professionals who interpret the laws. In the past, people thought of the initial Chevron decision as incredibly beneficial for scientific matters and for the environment. Chervon was removed recently with another Supreme Court decision that made this idea obsolete, removing professionals from the power …

Climate Nationalism, Gabriel Weil

Scholarly Works

Climate change is a global commons problem. The costs of emissions in any given country are mostly borne by foreigners. Absent strong measures to overcome this dynamic, pursuit of national self-interest will lead people and countries to underinvest in decarbonization, relative to what's best for the world as a whole. And we do see such underinvestment. Many countries are not on track to meet their Paris Agreement pledges, and those pledges, even if met, are not ambitious enough to meet the headline temperature stabilization goals of the agreement. This is the fairly banal pursuit of national interest in the climate …

The Social Cost Of Plastic To The United States, Nancy Lauer, Tibor Vegh, Michelle Nowlin, John Virdin, Jason Somarelli

Faculty Scholarship

No abstract provided.

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …

A Guide To Urban Planning And Environmentalism, Michael Lewyn

Scholarly Works

Review of The Sustainable Urban Design Handbook, by Nico Larco, Kaarin Knudson.

Reflections On The Launch Of The Inspection Panel And People-Centered Accountability, David B. Hunter

Perspectives

No abstract provided.

How Halal Certification And Islamic Ethics Tackle Greenwashing: New Solutions For A Sustainable Economy, Muhammad Afif Ryan Pratama

Journal of Middle East and Islamic Studies

This research explores the role of halal certification and Islamic ethics in addressing greenwashing within the financial sector. Greenwashing, the practice of exaggerating environmental responsibility, undermines genuine sustainability efforts and trust among consumers and investors. Islamic finance, based on principles of transparency, social justice, and ethical business practices, provides a robust framework to counter such deceptive practices. The study proposes expanding halal certification to incorporate environmental standards, ensuring that companies demonstrate both ethical and sustainable practices. This integrated approach offers a unique solution to combat greenwashing and aligns with broader sustainability goals. By including sustainability in halal certification, the credibility …