Law Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Free, Prior Informed Consent And Extractive Industry: Indigenous Action Is The Past, Present, And Future Of Global Environmental Justice, Paige Bellamy

Environmental and Earth Law Journal (EELJ)

Free, Prior Informed Consent ("FPIC") from the UN Declaration on the Rights of Indigenous Peoples has been central to global Indigenous action against extractive industries’ harmful practices. Yet, it is often not fully recognized as a sovereign right, which hinders Indigenous peoples’ ability to use it to its full potential. Historically, FPIC has been deemed a consultation right, not a right to “veto” industry action on Indigenous land. Countries that have interpreted FPIC as a mere consultation right have allowed further exploitation of Indigenous peoples, usually leading to environmental and humanitarian disasters. However, when courts have respected the right to …

Nuclear Powered International Commercial Shipping: A Note On The Greenest Solution And The Challenges Of International Regulation, Rebecca Mcreynolds

Environmental and Earth Law Journal (EELJ)

To meet the environmental demands imposed by the International Maritime Organization, the commercial shipping industry’s use of predominantly marine diesel fuel will need to change drastically. Current answers to these environmental concerns include the use of biofuels, battery packs, and liquified natural gas, but these are short-term solutions that will not fully meet environmental demands in the long run. Nuclear propulsion, however, is a tried-and-true resolution. The use of nuclear energy results in virtually no environmental impact and has successfully been used by the US Navy for the past 75 years. Unfortunately, the commercial use of nuclear propulsion is stalled …

Lone Star Crime: The Criminal Enforcement Of Environmental Law In The State Of Texas, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy

St. Mary's Law Journal

Most transgressions of environmental law in the United States are remedied with civil or administrative tools. When crimes involve significant harm or culpable conduct, criminal enforcement tools may be applied. With the importance of environmental criminal enforcement for punishing offenders and deterring future offenses, we still have little empirical understanding of this phenomenon in Texas. We use content analysis of 2,588 federal environmental criminal prosecutions that result from EPA criminal investigations from 1983 to 2019 and select all prosecutions occurring in Texas. Our approach allows us to explore prosecution patterns over time, examine charging and sentencing trends, and draw out …

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

A Legacy Of Slavery: The Citizen's Arrest Laws Of Georgia And South Carolina, Roger M. Stevens

South Carolina Law Review

No abstract provided.

The Regulation Of Complementary And Alternative Medicine (Cam) In South Carolina, What Is Happening And What Needs To Change, Anna C. Smith

South Carolina Law Review

No abstract provided.

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Kain V. Department Of Environmental Protection, Sarah M. Danno

Public Land & Resources Law Review

Global climate change and its chronic frustrations generated passage of the Massachusetts Global Warming Solutions Act. The Massachusetts Legislature imposed time-bound implementation mandates on the Massachusetts Department of Environmental Protection with Massachusetts residents acting as compliance watchdogs. In Kain, the Supreme Judicial Court of Massachusetts interpreted the Act in favor of environmental integrity and strict agency compliance standards.

Enhancing Biodiversity On Working Agricultural Lands Through Environmental Mitigation And Offsets: Opportunities In Australia And The United States, Matthew Roach

Matthew Roach

Australia has extensive experience in managing working agricultural lands to enhance biodiversity. State and Commonwealth agencies are increasingly using environmental offsets as a tool to manage the impacts of development. However, working agricultural lands are generally not considered a source of potential environmental offsets, as agencies prefer that land used for offsets be wholly set aside for environmental management purposes with limited or no agricultural activities. This contrasts with the United States, where efforts are underway to use working agricultural lands for mitigation. This paper proposes that working agricultural lands can be used for environmental offsets under the Environment Protection …

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Endangered Species In The Oil Patch: Challenges And Opportunities For The Oil And Gas Industry, Gabriel Eckstein, Jesse Snyder

Gabriel Eckstein

Tension among competing interests is nothing new in environmental law. Even among the most tenacious adversaries, the ability to find common ground can serve as an impetus to further the aims of both industry and environmental proponents. Broadly speaking, advocates of the oil and gas industry prefer few restraints, if any, on exploration, development, and production. Comparatively, champions of biological and ecological preservation favor regulatory protections to conserve these interests. Cutting across these often disparate objectives, the Endangered Species Act (ESA) presents a not-so-obvious opportunity for both sides to receive a share of the pie through cooperation and forward planning. …

Alternative Strategies For Addressing The Presence And Effects Of Pharmaceutical And Personal Care Products In Fresh Water Resources, Gabriel Eckstein, George William Sherk

Gabriel Eckstein

In recent years, new information has arisen to challenge this assumption. Chemicals from a wide variety of pharmaceutical and personal care products ("PPCPs"), their byproducts and endocrine disrupting compounds ("EDCs") have received growing attention from the water treatment and wastewater treatment community because of the ability of PPCPs to persist, or only partially degrade, in water and during wastewater treatment.

Several federal agencies, including the EnvironmentAl Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), the U.S. Department of Agriculture ("USDA"), the U.S. Geological Survey ("USGS"), and the Centers for Disease Control and Prevention ("CDC"), have the potential to be …

Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein

Gabriel Eckstein

Although climate change is expected to have major consequences that affect the global environment in its broadest sense, one of the earliest and most direct impacts will be on Earth’s fresh water systems. While some regions will experience increased precipitation, others will suffer serious scarcity. Among others, consequences are likely to include severe flooding, extreme droughts, and meandering border-rivers. This, in turn, will affect human migration patterns, population growths, agricultural activities, economic development, and the environment. This article explores the impact that climate change will have on regional and global freshwater resources and the resulting legal and policy implications that …

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Gabriel Eckstein

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

What The Frack? How Weak Industrial Disclosure Rules Prevent Public Understanding Of Chemical Practices And Toxic Politics, Benjamin W. Cramer

Benjamin W. Cramer

Hydraulic fracturing, known colloquially as “fracking,” makes use of chemically-formulated fluid that is forced down a gas well at great pressure to fracture underground rock formations and release embedded natural gas. Many journalists, environmentalists, and public health advocates are concerned about what may happen if the fracking fluid escapes the well and contaminates nearby drinking water supplies. This article attempts a comprehensive analysis and comparison of all relevant fracking fluid disclosure regulations currently extant in the United States, and considers whether the information gained is truly useful for citizens, journalists, and regulators. In recent years the federal government and several …

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

Shut Up: Pay More: This What You Voted For. Why You Don't See Me At San Francisco's Hall Of Justice, David D. Butler

David D. Butler

Urban violence, much of it politically motivated, has driven the taxpaying Middle Class into the suburbs. This has left only the tax eating poor and the tax avoiding rich in the big cities. This has resulted in urban bankruptcy in Detroit and even in California with its gifts of the technological Gold Rush, the Pacific Ocean, and the Sierra Nevada and Santa Lucia Mountains. The poor are more issolated than ever confined to the functional equivalent of no go zones. They speak a differenct language, dress differently, and sell drugs until they are caught and caged, providing good pay and …

Environmental Law's Heartland And Frontiers, Todd Aagaard

Todd S Aagaard

The locus of innovation moving forward is likely to be outside of the traditional domain of environmental law — in areas that are at the frontiers of environmental law, but in the heart of related fields such as energy law, corporate social responsibility, and insurance. At the same time, environmental law’s heartland will continue to dominate the regulation of environmental harms for the foreseeable future. The future of environmental law therefore will be determined by a dialectic relationship between the heartland and frontiers of environmental law; each playing its own crucial role in the development of the field, in tension …

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …

Interfaces Between Csr, Corporate Law And The Problem Of Social Costs, Benedict Sheehy

Benedict Sheehy

Abstract: CSR is an increasingly seen as the preferred approach to addressing the social impacts of industrial production. These social impacts, however, come in the first instance from production and not the corporation. The legal corporation facilitates social costs secondarily. Much of the thinking about CSR fails to adequately take account of the systemic nature of social costs, the legal nature of the corporation and social costs and the so the systemic failure of law to deal with them. This article addresses the interface between the three concepts and related issues of CSR, social costs and corporate law.

Vulnerability And Power In The Age Of The Anthropocene, Angela Harris

Angela P Harris

No abstract provided.

Coping With Climate: Legal Innovation In The Absence Of Full Reform, Robert R.M. Verchick, Faye Sheets

Robert R.M. Verchick

In the absence of a federal legislation directing government to adapt to the unavoidable effects of climate change, the Obama administration has put its faith in existing environmental laws like the Clean Air Act (“CAA”), the Endangered Species Act (“ESA”), and the National Environmental Policy Act (“NEPA”). But often federal objectives focus only on reducing greenhouse gases—what experts call “mitigation”—and neglect strategies for coping with the climate disruptions that we cannot avoid—otherwise known as “adaptation.” Where the federal policy falls short, states are beginning to experiment on their own with climate adaptation strategies. This essay examines both approaches, mitigation and …

An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman

All Faculty Scholarship

Economic theory developed in the prior literature indicates that under the joint and several liability imposed by the federal Superfund statute, the government should recover more of its costs of cleaning up contaminated sites than it would under nonjoint liability, and the amount recovered should increase with the number of defendants and with the independence among defendants in trial outcomes. We test these predictions empirically using data on outcomes in federal Superfund cases. Theory also suggests that this increase in the amount recovered may discourage the sale and redevelopment of potentially contaminated sites (or “brownfields”). We find the increase to …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

David S Caudill

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Permitting Problems: Environmental Justice And The Miccosukee Indian Tribe, Charles Prior

Environmental and Earth Law Journal (EELJ)

The Miccosukee Tribe of Indians is a federally recognized tribe that works and resides in the Everglades region of the State of Florida. The Miccosukee have been battling lax water quality standards through lawsuits since the 1990’s. Recent rulings in federal court held that the State of Florida has failed to comply with the Clean Water Act and ordered the Environmental Protection Agency to set nutrient criteria for the water bodies in the state of Florida until the Florida Department of Environmental Protection complies with the Clean Water Act.

This article uses the principles of environmental justice to analyze ways …

Land Ethic Under Attack: Keystone Xl And The War Over Domestic S(Oil), Heather Culp

Environmental and Earth Law Journal (EELJ)

The Keystone XL pipeline has caused recent controversy and renewed the debate over the future of fossil fuels in the United States. The project pits largely conservative groups, who argue that the pipeline will create jobs and decrease America’s dependence on foreign oil, against environmental advocates, indigenous tribes, and private landowners, who are attempting to fend off the project because they believe it will displace them of their own lands as well as disrupt the natural ecosystems that lay in the pipeline’s path. In the wake of a presidential veto of the project and renewed sentiment by the pipeline’s …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …