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Articles 61 - 83 of 83
Full-Text Articles in Law
Keeping The Coast Clear: Lessons About Protecting The Natural Environment By Controlling Industrial Development Under Delaware’S Coastal Zone Act, Kenneth T. Kristl
Keeping The Coast Clear: Lessons About Protecting The Natural Environment By Controlling Industrial Development Under Delaware’S Coastal Zone Act, Kenneth T. Kristl
Kenneth T Kristl
Passed in 1971, Delaware’s Coastal Zone Act was a pioneering law that declared as public policy the prohibition of heavy industry and the regulation of manufacturing within Delaware’s coastal zone because of the environmental threats posed by such development. This article is the first comprehensive scholarly analysis of how the Act has been interpreted and applied to protect Delaware’s coastal environment. It provides an extensive analysis and annotation of how the Act’s terms have been used and the principles of statutory interpretation that inform the Act’s continued application. The article argues that the Act’s prohibitions on heavy industry and bulk …
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
James R. May
This Article examines the shape of things to come in the overlapping realm of federalism and preemption. It questions whether and to what extent notions of federalism shape how federal law - or the absence of it - preempts states from taking measures to address climate change. A burgeoning body of legal scholarship mulls whether federal law ought to preempt state action. There is yet relatively spare legal scholarship on preemption reflecting recent developments in the courts and at EPA. Part One explains how federalism principles have shaped responses to climate change. It observes how allowing states to take steps …
Constitutional Law: 2008 Annual Report, James R. May
Constitutional Law: 2008 Annual Report, James R. May
James R. May
No abstract provided.
Making A Good Idea Even Better: Rethinking The Limits On Supplemental Environmental Projects, Kenneth Kristl
Making A Good Idea Even Better: Rethinking The Limits On Supplemental Environmental Projects, Kenneth Kristl
Kenneth T Kristl
Supplemental Environmental Projects (SEPs) allow a defendant in an enforcement action under federal environmental laws to reduce its civil penalty by agreeing to undertake an environmentally beneficial project it would not otherwise be required to do. Properly structured, SEPs benefit the enforcement plaintiff, the defendant, and the environment, and federal policy encourages the use of SEPs. A first of its kind examination of SEP utilization rates in federal enforcement actions finds that—despite active encouragement within and by EPA—SEPs are only used in about 13% of federal enforcement cases. After examining the development of federal policy concerning SEPs, likely explanations for …
Appliance Energy Efficiency Labels And Standards, David R. Hodas
Appliance Energy Efficiency Labels And Standards, David R. Hodas
David R. Hodas
No abstract provided.
Ecosystem Subsidies Of Fossil Fuels, David R. Hodas
Ecosystem Subsidies Of Fossil Fuels, David R. Hodas
David R. Hodas
Ecosystems provide the invaluable service of collecting and storing solar energy as fossil fuels (e.g., coal, petroleum, and natural gas). These concentrated forms of energy were gifted to us by the sun and collected and stored for our use by ancient ecosystem services. However, our legal and economic systems fail to recognize the value of this ecosystem service that is embedded in fossil fuels. As a result, society uses fossil fuels as though they were free and inexhaustible. This market failure means that fossil fuels are being consumed more quickly than they can be replenished, which in turn has affected …
Constitutional Law: 2007 Year In Review, James R. May
Constitutional Law: 2007 Year In Review, James R. May
James R. May
No abstract provided.
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
James R. May
This article provides the latest developments about TMDL lawsuits nationally. It concludes that the results of TMDL settlements are mixed, least so where it matters most. The glory is that EPA has reviewed anew, or had the states review, readily existing and available water quality related data and information for 40,000 waters, finding 20,000 more ones impaired, bringing the national total to 60,000. EPA has agreed to "backstop" TMDL development for about 20,000 of these, and set or approved TMDLs for 10,000 impaired waters. EPA has for the first time reviewed and evaluated CPPs in six states. It has conducted …
Clean Water Act Npdes Developments In The Courts, James R. May
Clean Water Act Npdes Developments In The Courts, James R. May
James R. May
Although the Clean Water Act has been in effect for over thirty-three years, many aspects of the Act remain for the Supreme Court to define. In fact, the Court is still called upon to determine certain threshold questions about the Act’s scope and jurisdiction, permits, water quality standards and enforcement. One central question has been the definition of “navigable waters” as it relates to wetlands. The purpose of the Act is to protect the nation’s waters, and a logical question that the Court must address is “to what extent can wetlands be included as navigable waters?” Two cases have been …
Constituting Fundamental Environmental Rights Worldwide, James R. May
Constituting Fundamental Environmental Rights Worldwide, James R. May
James R. May
This article discusses the extent to which nations worldwide have constituted such “fundamental environmental rights” (FERs). Constitutions provide a framework for social order. They also reflect a paradox. While constitutions are usually the product of a convulsive event of majoritarian democracy, most contain antimajoritarian features designed to protect so-called fundamental rights against the tyranny of the majority. Traditional fundamental rights, such as those found in the Bill of Rights to the Constitution of the United States, include protecting for its citizens free speech, religious exercise and voting rights. Does a fundamental, enforceable, individual right to a clean and healthy environment …
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
James R. May
This article examines recent developments in the interpretation of the words “addition,” “pollutant,” and “point source,” as used in the Clean Water Act. These words have been the subject of much controversy and many interpretations as the CWA leaves them undefined. The Supreme Court has concluded most notably that the transfer of polluted water within the same body of water does not constitute “addition,” however the transfer of pollutants from one body of water into another is addition. Similarly, much controversy has surrounded the possibility of pesticides, lead shot and erosion as additions. Most recently courts have found that pesticides …
Toxicology Litigation In North Carolina, Jill Fraley
Toxicology Litigation In North Carolina, Jill Fraley
Jill M. Fraley
No abstract provided.
Sustainable Development And The Marrakech Accords, David Hodas
Sustainable Development And The Marrakech Accords, David Hodas
David R. Hodas
The United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) in Marrakech drafted a legal and institutional structure to govern various market-based mechanisms to limit greenhouse gas (GHG) emissions. This governance instrument incorporated both economic and environmental considerations at every stage of the decision-making process. The Marrakech Accords operational guidelines govern three alternative market-based approaches: Clean Development Mechanism; Joint Implementation; and Emissions Trading. The Marrakech Accords require the development of principles and rules for measuring emission baselines and additionality which define what is a valid GHG emission reduction, the degree sustainability influences project approval, and overall …
The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
James R. May
The Clean Water Act allows citizens to sue the EPA to “perform any act or duty…which is not discretionary,” and citizen suits have been influential in holding EPA responsible to the ideals of the CWA. This article describes the outcomes of three complex federal consent decrees to clean up waters and protect species in Pennsylvania, Delaware and Virginia through 2011.
Discharges From Historic Mining Properties: Asserting And Defending Citizen Suits Under The Clean Water Act, James R. May
Discharges From Historic Mining Properties: Asserting And Defending Citizen Suits Under The Clean Water Act, James R. May
James R. May
This chapter discusses available causes of action for and defenses to citizen suits under the Clean Water Act to address mining activities. Section 23.02 examines causes of action available to citizens under the CWA to address mining operations. In particular, it surveys citizen suits aimed at unpermitted mining discharges and against EPA for failing to perform mandatory duties that may impact mining operations. Section 23.03 then reviews some common defenses to CWA citizen suits in the context of mining.
The Road To Perdition: The Demise Of Tmdl Litigation, James R. May
The Road To Perdition: The Demise Of Tmdl Litigation, James R. May
James R. May
Citizens have filed more than two dozen suits and sent nearly four dozen notices of intent to sue EPA to implement the Clean Water Act's once vaunted "total maximum daily load" (TMDL) program. 33 U.S.C. §1313(d). The results are striking. Since 1997, states and EPA have identified nearly 20,000 waters previously thought to comply with water quality standards that do not. Since 2000, EPA has established or approved nearly 8,000 plans that aim to make these dirty waters fishable and swimmable. EPA is under court order to move the TMDL program along in more than 20 states. TMDL litigation, particularly …
Where The Water Hits The Road: Recent Developments In Clean Water Act Litigation, James R. May
Where The Water Hits The Road: Recent Developments In Clean Water Act Litigation, James R. May
James R. May
This article discusses reports recent developments involving particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act jurisdiction, including key definitional terms "navigable waters," "addition," "pollutant," and "point source." It discusses how developments concerning permits, standards, TMDLs, citizen suits, and enforcement policies are shaping water pollution regulation in the United States.
Now More Than Ever: Trends In Environmental Citizen Suits At 30, James R. May
Now More Than Ever: Trends In Environmental Citizen Suits At 30, James R. May
James R. May
This article surveys and analyses trends in the astonishing arena of environmental citizen suits. Environmental citizen suits matter. Borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common law qui tam without the bounty, Congress has experimented by providing citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce many of the nation's environmental laws. And enforce they do. Despite ever more cascading burdens respecting notice, jurisdiction, preclusion, actions against EPA and third parties, remedies, SEPs and attorney fees, there are more reported environmental citizen suits than ever. …
State Law Responses To Global Warming: Is It Constitutional To Think Globally And Act Locally?, David R. Hodas
State Law Responses To Global Warming: Is It Constitutional To Think Globally And Act Locally?, David R. Hodas
David R. Hodas
The constitution creates a federalist system, in which States retain general police power not superseded or limited by the Constitution or federal law. Under President George W. Bush, the United States adopted two seemingly conflicting positions. At the federal level, President Bush has rejected the Kyoto Protocol and declined to develop any material foreign or domestic policies to limit greenhouse gas (GHG) emissions. At the state level, many states adopted a wide range of policies, statutes and regulations addressing GHG emissions. Critics of these policy initiatives question whether States possess the constitutional authority to address global warming, citing the doctrines …
Now More Than Ever: Environmental Citizen Suit Trends, James R. May
Now More Than Ever: Environmental Citizen Suit Trends, James R. May
James R. May
This article serves as a companion reader to “Environmental Citizen Suits at Thirtysomething: A Celebration and Summit,” Part One examines trends in environmental citizen suits post-Laidlaw. Part Two describes why citizen suits are needed now more than ever. It concludes that jurisprudential and statistical trends show both that there are more, and why more are needed still, environmental citizen suits than ever. Current national security prerogatives have not made for it easy for agencies to perform duties Congress has declared mandatory, and for courts to compel action. These trends are unlikely to change course anytime soon. Hence, the clarion call …
Environmental Citizen Suits At Thirtysomething: A Celebration And Summit, James R. May, Bruce J. Terris, Zygmunt J. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, Robert F. Kennedy
Environmental Citizen Suits At Thirtysomething: A Celebration And Summit, James R. May, Bruce J. Terris, Zygmunt J. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, Robert F. Kennedy
James R. May
This compilation article provides a rare behind the scenes glimpse into landmark environmental cases from those who litigated them, including Robert F. Kennedy, Jr., Bruce Terris, Professor Zygmunt Plater, Professor Ann Powers, Mike Axline, David Bookbinder, and Peter Lehner. In 1970, Congress gave citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce the Clean Air Act (CAA). Congress intended citizen suits to fill the vast void left by inadequate enforcement by federal and state regulators, and to ensure compliance and deter illegal activity. The approach stuck. Now more than one dozen federal environmental statutes, numerous …
Environmental Justice: Bridging The Gap Between Environmental Laws And 'Justice', Alice Kaswan
Environmental Justice: Bridging The Gap Between Environmental Laws And 'Justice', Alice Kaswan
Alice Kaswan
In this article, Professor Kaswan considers the sometimes-tense intersection between environmentalism and the environmental justice movement. Professor Kaswan first establishes a framework for evaluating the newly-emerging environmental justice movement, identifying its primary distributive and political justice strands. Professor Kaswan then notes the skeptical views of environmentalism presented in the environmental justice literature. She explains the underlying tension by analyzing the roots of the environmental movement and its early distance from the civil rights movement (from which the environmental justice movement arose), as well as the ways in which environmental law may inadvertently have exacerbated environmental problems for poor and minority …
The Real Acid Test Of Title Iv Of The Clean Air Act Amendments Of 1990: External Cost Justifications Not Related To Acid Deposition Control, James R. May
James R. May
One of the principal objectives of the Clean Air Act Amendments Act of 1990, contained in Title IV, is to control acid deposition by reducing the air emissions of sulfur dioxides (SO2) and nitrogen oxides (NOx) released by many fossil fuel-fired steam-electric generating utility units. A report recently issued by the National Acid Precipitation Assessment Program (NAPAP), called the Integrated Assessment (NAPAP IA), casts formidable doubts upon Title IV's efficacy by suggesting that the relationship between Title IV and the mitigation of the adverse effects of acid deposition in environmentally sensitive areas is too attenuated to warrant the nationally pervasive …