Law Commons^™

The Collaborative Forest Landscape Restoration Program: A Panacea For Forest Service Gridlock Or A New Name For Old Saws?, Brett M. Paben

Brett M Paben

No abstract provided.

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

The Oil And Gas Evolution: Learning From The Hydraulic Fracturing Experiences In North Dakota And West Virginia, Joshua P. Fershee

Joshua P Fershee

This Article discusses major differences and similarities in U.S. oil and gas extraction via hydraulic fracturing through a comparison of the experiences in North Dakota and West Virginia. Although there are other parts of the country experiencing growth in oil and gas extraction, Pennsylvania and Texas as but two examples, North Dakota and West Virginia are particularly apt for comparison. Both states have relatively small populations, meaning that the impact of large-scale energy extraction in each state is likely to have a large impact on the state, economically, environmentally, and socially.

This Article focuses on three main areas of comparison. …

In Third Parties We Trust? The Growing Antitrust Impact Of Third-Party Green Building Certification Systems For State And Local Governments, Darren Prum, Robert Aalberts, Stephen Del Percio

Darren A. Prum

According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country's 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings' environmental impact is a noble - and critical - goal. But governments' reliance on private, third-party standard-setting organizations - and the rating systems that they promulgate - as the basis for that legislation may be legally problematic.

This Article reviews one of those potentially problematic bases: antitrust. In order …

The President, The Environment, And Foreign Policy: The Globalization Of Environmental Politics, David A. Wirth

David A. Wirth

By comparison with domestic environmental issues, international environmental diplomacy is distinguished by the far greater role of the Executive Branch, and in particular the President, in making law. This essay explores the legal consequences of the President's dual role in international environmental diplomacy: his duty faithfully to execute statutory mandates adopted by Congress while also serving as the Nation's chief diplomat and negotiator of international agreements with foreign powers. The piece discusses the legal and policy dynamics surrounding two concrete examples affecting domestic and international environmental policy, in which Presidential power assumes dramatically different forms: (1) climate change, and in …

The Embattled Social Utilities Of The Endangered Species Act - A Noah Presumption And Caution Against Putting Gasmasks On The Canaries In The Coalmine, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The Endangered Species Act (ESA) is once again poised at the brink of what could become an illuminating national debate. The Act’s congressional reauthorization process is likely to provide the first major indicator of what the 105th Congress will or won’t do to environmental law generally. From the turbulent past and present of the ESA, this essay offers some reminders for the impending battles over the Act.

Facing A Time Of Counter-Revolution: The Kepone Incident And A Review Of First Principles, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The Kepone contamination episode of 1966-75 was a milestone that focused an entire nation’s attention on environmental hazards and our need to do better in recognizing and avoiding them. We have learned a great deal from that unfortunate story. The evolution of American environmental law since the Kepone debacle has repeatedly used the incident as a touchstone in identifying environmental pollution’s causes, effects, and potential solutions. This essay offers four propositions, about two things that have changed, and two things that have not, in the years since Kepone, taking account of where we are, and seeking some points of consensus.

Breaking Ground On The New Green Deal, Erin Ryan

Erin Ryan

This op-ed urges reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy.

Carbon Regulation And Its Impact On The Appalachian Basin: Why The Coal-Fired Energy Industry In Appalachia Should Embrace, Prepare For, And Help Shape A Comprehensive Legislative Scheme That Limits Greenhouse Gas Emissions, Mark L. Belleville

Mark L. Belleville

The premise of this article – the coal-fired energy industry in Appalachia should embrace, prepare for, and help shape a comprehensive federal legislative scheme that limits carbon dioxide and other greenhouse gas emissions – may sound counterintuitive. Why would an industry that emits greenhouse gases (GHGs) get on board with a national plan to limit GHG emissions? The reason is threefold. First, some form of regulation limiting emissions is inevitable. Second, in many respects, a comprehensive federal scheme is preferable to the current patchwork that exists. Finally, a comprehensive federal scheme can be tailored to be advantageous (or at least …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

How Do We Deal With This Mess? A Primer For State And Local Governments On Navigating The Legal Complexities Of Debris Issues Following Mass Disasters, Ryan M. Seidemann, Megan K. Terrell, Christopher D. Matchett

ExpressO

The devastation wrought by the 2005 hurricane season brought into bold relief the need for comprehensive debris management plans in the United States. As cleanup efforts commenced following Hurricane Katrina, it became abundantly apparent that the local governments were not prepared to deal with the massive scope of the debris problem.

Disasters will occur. It is not a matter of if, but a matter of when. The entire nation is at risk of being struck by some type of disaster at some time. The best way to deal with the outfall from these disasters is to be prepared for them …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition has never …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad Emerson

ExpressO

No abstract provided.

Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan

Donald J. Kochan

It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Fuel Efficiency: The Disconnect Between Environmental Policy And Tax Policy, John J. Marciano

ExpressO

The recent high gas prices in America have intensified the debate over oil and gas efficiency, use, and reserves. As the national average for a gallon tops $2.10, Congress and the President strive to find a common position to foster energy independence, protect the environment, and bolster the struggling economy.

President Bush’s energy policy and recent Senate and House bills have not contemplated their effects on the environmental state of our nation or its impact on the internal revenue code. In this time of uncertainty, energy independence and measured use of resources may be at odds, but must we stray …

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

ExpressO

No abstract provided.

Environmental Law, Congress, And The Court's New Federalism Doctrine, Christopher H. Schroeder

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.

In Search Of Accountability: The Legislative Re-Invention Of Environmental Law And Policy In Indiana, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

An Economic Analysis Of Trade Measures To Protect The Global Environment, Howard F. Chang

All Faculty Scholarship

In this article, Professor Howard Chang addresses the role of trade restrictions in supporting policies to protect the global environment and proposes a more liberal treatment of these environmental trade measures than that adopted by dispute-settlement panels of the General Agreement on Tariffs and Trade (GATT). The GATT Secretariat has recommended that countries like the United States rely on "carrots" rather than "sticks" in order to induce the participation of other countries in multilateral environmental agreements. Professor Chang defends the use of sticks on the ground that they encourage more restrained exploitation of the environment pending a multilateral agreement. First, …

Environmental Reforms In Post-Communist Central Europe: From High Hopes To Hard Reality, David Hunter, Margaret Bowman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Developments In Law - Toxic Waste Litigation, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Strengthening Of The Resource Conservation And Recovery Act In 1984: The Original Loopholes, The Amendments, And The Political Factors Behind Their Passage, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

This commentary discusses the nature of the legal loopholes that existed in the original RCRA statute, and highlights several of the provisions of the 1984 RCRA amendments that serve to either rectify or ameliorate the prior deficiencies. It also examines the political factors that affected the passage of the 1984 amendments, enabling them to pass during a period of anti-regulatory emphasis.