Law Commons^™

Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling

Jonathan Stribling

This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.

Timber Piracy, Statutory Interpretation, And Legislative Intent: The Louisiana Supreme Court’S Decision In Sullivan V. Wallace, Mirais Holden

Mirais Holden

The Louisiana legislature imposes punitive treble damages on timber pirates, those who cut or remove timber from land belonging to another. For many years in Louisiana, it was unclear whether those same treble penalties applied to co-owners of land who sell timber of which they only own a part, without the consent of their fellow co-owners, in a blatant attempt to steal the full profit for themselves. In a historical circuit split, one Louisiana circuit held that the treble damage statute did apply to timber-pirating co-owners, while another Louisiana circuit held that it did not. The author of this case …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

Regulatory Analysis And Response To Potential Coal Seam Gas Groundwater Contamination In Queensland Australia, Barrie Hansen Jd (Hons)

Barrie Hansen JD (Hons), LLM

The coal seam gas (coalbed methane) industry in Australia is practically in its infancy, but major development is expected to occur over the next 40 years. Australia, as the most arid continent in the world, has a duty to manage the potential groundwater issues better than has been done in other countries where the coal seam gas industry has been flourishing for many years. This article attempts to provide a brief overview of some of the issues, along with suggestions for a regulatory response, or further study.

The Rise Of U.S. Food Sustainability Litigation, Stephanie Tai

Stephanie Tai

This article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation—challenges to CAFOs and challenges to the use of genetically modified organisms (GMOs) in the food system—chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.

The article begins by describing the sustainable food movement, including how the movement fits in with factors that sociologists use to characterize social movements, as well …

Milking It: Reconsidering The Fda’S Refusal To Require Labeling Of Dairy Products Produced From Rbst Treated Cows In Light Of International Dairy Foods Association V. Boggs, Laurie J. Beyranevand

Laurie J Beyranevand

The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs found that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, …

Expert Testimony: Groundwater Modeling Reliability, Brent Smith

Brent Smith

A presumption of helpfulness surrounds the term “expert”. For this reason, courts grant testimonial latitude to expert testimony that is normally unavailable to other witnesses. This is justified on the presumption that the expert's opinion rests upon a reliable basis in the knowledge and experience of his discipline. However, what happens when such testimony involves a area of science that is in of itself guesswork at times?

Defendants Win "Round One" Of Climate Change Litigation In United States Supreme Court, Richard O. Faulk, John S. Gray

Richard Faulk

In American Electric Power Co. v. Connecticut (“AEP”), the United States Supreme Court held that federal common law public nuisance claims seeking injunctive relief against emitters of greenhouse gases (“GHG”) were displaced by the Clean Air Act (“CAA”) and EPA’s regulatory implementation of the Act’s provisions. In hindsight, this holding seems an inevitable outgrowth of Massachusetts v. EPA, 549 U.S. 497 (2007), which held that GHGs are pollutants subject to CAA regulation. Building on that precedent in a unanimous 8-0 opinion, the AEP Court gave the defendant utility companies a clear-cut victory by precluding judicial direct regulation of GHG through …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

A Global E-Commerce Tax To Fund Global Public Goods, Rifat Azam Dr.

Rifat Azam Dr.

A Global E-commerce Tax to Fund Global Public Goods Rifat Azam

Abstract

This article argues for the imposition of a “global e-commerce tax” on global e-commerce income for funding global public goods. The idea is to create an international body (the "global fund"), to vest it with the authority to impose global tax on global e-commerce income, and to use the tax revenues to fund global public goods. I wish to stress that the model rests on two pillars: global taxation and global spending. The article presents, for the first time, an outline for a concrete design and structure of …

Ocean Governance For The 21st Century: Making Marine Zoning Climate Change Adaptable, Robin K. Craig

Robin K. Craig

The variety of anthropogenic stressors to the marine environment—including, increasingly, climate change—and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.

This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it …

Reliably Unreliable: The Problems With Piecemeal Federal Transmission And Grid Reliability Policies, Joshua P. Fershee

Joshua P Fershee

In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities …

The Future Of The International Climate Change Regime And Potential Impacts On States That Might Require A Domestic Legal Response: A Reflection Based On Scenarios, Javier De Cendra De Larragán

Javier de Cendra de Larragán

This paper reflects on the potential usefulness of scenarios to facilitate thinking on the evolution of international climate change law in the next twenty years. One possible application of this tool is to help identify potential impacts stemming from international climate change law upon a number of key areas of interest for national governments that might require a legal response. While the paper does not build complete scenarios, it does perform a ‘state of science’ review that can pave the way for the development of scenarios. On the basis of that review, covering an analysis of scenarios prepared within other …

“Megatons To Megawatts:” A Mega-Player Of Us Nuclear Enrichment, Christodoulos Kaoutzanis

Christodoulos Kaoutzanis

Since the mid-1990s, a majority of uranium used in the production of electricity in the United States comes from decommissioned Russian nuclear warheads. The “Megatons to Megawatts” (‘MtM’) Agreement, signed by the United States and the Russian Federation, heralded a new era of cooperation in nuclear deterrence. It also had an unprecedented influence on the market for nuclear fuel in the United States. This article focuses on the impact this agreement has had on the market for nuclear fuel, which will definitely outlast the MtM Agreement that is scheduled to expire in 2013. In clarifying this largely unknown element of …

Integrating Community Knowledge Into Environmental And Natural Resource Decision-Making: Notes From Alaska And Around The World, Elizabeth Barrett Ristroph

Elizabeth Barrett Ristroph

Community knowledge (including traditional, local, and indigenous knowledge) has a role to play in government agency decisions regarding the environment and natural resources. This article considers the benefits of using community knowledge, as well as obstacles to collecting this knowledge and integrating it with Western science. The article further discusses how federal agencies in Alaska use community knowledge, and laws that potentially affect this use (including the Data Quality Act). Finally, the article provides recommendations for agencies to consider in collecting and using community knowledge.

Adaptation Strategies To Prevent Coastal Wetlands Loss In Urban Areas: Looking At Jamaica Bay In New York City, Briana W. Collier

Briana W. Collier

This paper examines some of the existing adaptation strategies currently available to address coastal wetlands loss. It uses Jamaica Bay in New York as an example to explore the legal pitfalls and policy considerations in making adaptation strategy choices, and looks toward the new tools on the horizon that may provide a more effective approach for adapting to sea level rise. This paper lays out the relevant science: the ecological and economic services coastal salt marsh resources provide; the specific natural resources at risk in Jamaica Bay; the projected rates of sea level rise; and the other local area factors …

Going-Going-Green: Strategies Fostering Sustainable New Federal Buildings, Patrick E. Tolan Jr.

Patrick E. Tolan Jr.

Green building, also known as sustainable building or high performance building, has exploded in popularity over the past several years as construction experience and cost-benefit studies have shown that owners of green buildings derive financial as well as environmental benefits. By smartly designing the building to maximize advantages at the onset, these newer buildings are more friendly to workers, more flexible for future growth, better integrate environmental and comfort factors using a whole building design philosophy, and help conserve energy, water, and other resources. As the world’s largest owner and operator of buildings and the nation’s largest energy user, the …

Closing The Gap: Using The Clean Air Act To Control Lifecycle Greenhouse Gas Emissions From Energy Facilities, Colin Hagan

Colin Hagan

In the midst of the U.S. Environmental Protection Agency’s ongoing efforts to regulate greenhouse gas emissions from power plants, this manuscript assesses whether the Clean Air Act authorizes EPA to require a lifecycle greenhouse gas analysis as part of the statute’s pre-construction permitting requirements. A lifecycle analysis calculates emissions from all processes directly and indirectly related to electricity generation. In this manuscript, I argue that requiring lifecycle greenhouse gas analysis will help identify cost-effective measures for reducing emissions and avoid unintended consequences from switching to low-emitting resources such as natural gas, biomass, or nuclear power.

Closing The Gap: Using The Clean Air Act To Control Lifecycle Greenhouse Gas Emissions From Energy Facilities, Colin Hagan

Colin Hagan

In the midst of the U.S. Environmental Protection Agency’s ongoing efforts to regulate greenhouse gas emissions from power plants, this manuscript assesses whether the Clean Air Act authorizes EPA to require a lifecycle greenhouse gas analysis as part of the statute’s pre-construction permitting requirements. A lifecycle analysis calculates emissions from all processes directly and indirectly related to electricity generation. In this manuscript, I argue that requiring lifecycle greenhouse gas analysis will help identify cost-effective measures for reducing emissions and avoid unintended consequences from switching to low-emitting resources such as natural gas, biomass, or nuclear power.

Principle Of State Sovereignty And Its Compatibility With Environmental Obligation And Principles, Luis Claudio Martins De Araujo

Luis Claudio Martins de Araujo

The analysis of the concept, content and features of the General Principles of Law and the International Law Principles is crucial for a normative system comprehension.

The understanding of the International Environmental Law Principles is also essential for the environmental legal system itself and for the recognition as a normative category.

Consequently, the knowledge of the central position of the Law Principles as a whole is mandatory to the coherence and unity of a legal network, especially in the environmental legal system of the new millennium.

Sure that the Principle of State Sovereignty has a significant importance in this framework. …

Making Regulatory Innovation Keep Pace With Technological Innovation, Jay P. Kesan, Timothy A. Slating

Jay P. Kesan

Recent world events are forcing us to reconsider the ways in which the energy needs of the U.S. can and should be met. In regards to renewable energy options in general, the public response to the nuclear crisis at Japan’s Fukushima Daiichi power plant will likely stymie President Obama’s call for an increase in our reliance on nuclear energy. Additionally, the increasing political unrest in the Middle East and North Africa is once again reminding us that solutions must be found to mitigate our heavy dependence on foreign-produced oil. Newly emerging liquid biofuels not only hold the promise of enhancing …

International Avoided Deforestation Offset Projects: Insuring The Risk Of Reversal Penalties, Ken Allinson

Ken Allinson

The paper explores the potential for insurance with respect to avoided deforestation offset projects, as they represent a significant potential for low-cost emission reductions. The paper first reviews recent legislation proposed at the US Federal level, including the American Clean Energy and Security Act, and suggests subtle but significant changes to the legal language to improve transparency for companies operating in the carbon market – specifically that a reserve pool be required and that insurance be allowed. The paper then presents a detailed financial analysis (using national figures from Ghana as a hypothetical case study), exploring the viability of insurance …

Not Losing The Forest For The Trees: Distinguishing Conservation Transfer Fees From Other Private Transfer Fees, Frank Aiello

Frank Aiello

Private transfer fee covenants against real property are increasingly under fire from Congress, federal regulators and state legislatures. It will only be a matter of time before private transfer fees will also be challenged in state courts as not meeting the requirements for a servitude. As these bodies take aim at the private transfer fee, they literally must not lose sight of the forest for the trees. A private transfer fee that benefits conservation and environmental stewardship is consistent with the traditional use of real covenants and can provide a valuable benefit to property owners and the public. This article …

Climate Change And Sea Level Rise - German Law And The Kivalina Case, Will B. Frank

Will B. Frank

The article discusses the question of nuisance-liability for sea level-rise caused by climate change under German Civil Law.

“Offsetting” Crisis? – Climate Change Cap And Trade Need Not Contribute To Another Financial Meltdown, Victor B. Flatt

Victor B Flatt

Much of the fear of a cap and trade system to control greenhouse gases concerns the financial instruments that will be created in such a system and the concern that they will lead to another financial crisis. This belief may have been a major contributor to the defeat of cap and trade in the U.S. Senate. However, greenhouse gas cap and trade systems can be structured to avoid the problem of toxic assets that led to the financial crisis while still retaining real greenhouse gas control with an efficient market. Given that cap and trade still exists in many greenhouse …

A Political Question: Public Nuisance, Climate Change And The Courts, Richard O. Faulk, John S. Gray

Richard Faulk

When it comes to climate change regulation, one of the great discussions of our day is whether the political branches of government or the judiciary should lead the way. Is it appropriate or wise to use the crucible of the courtroom to forge standards regarding what emission levels are, and are not, acceptable? In other words, is the use of tort litigation in this context a legitimate judicial exercise, or does the judiciary overstep its bounds by reaching impermissibly into the political sphere? Although the poet’s imagination may dream of leaping to seize an otherwise inaccessible prize, wise jurists know …

When Government Intrudes: Regulating Individual Behaviors That Harm The Environment, Katrina F. Kuh

Katrina F Kuh

Emerging environmental problems and technologies, coupled with the existence of mature regulatory regimes governing most industrial sources of pollution, combine to reveal with new clarity the harms that individual behaviors and lifestyles inflict on the environment. However, changing how individuals impact the environment through their daily behaviors requires a reorientation of environmental law and policy and a balancing of government prerogatives and individual liberty. A growing body of legal scholarship recognizes the environmental significance of individual behaviors and lifestyles, critiques the failure of environmental law and policy to capture harms traceable to individuals, and suggests and evaluates strategies for capturing …

A Warning Signal That Justifies Precautionary Chemical Regulation: Exploitation Of The Availability Heuristic By Economically Motivated Actors, Nathan H. Ostrander

Nathan H. Ostrander

A WARNING SIGNAL THAT JUSTIFIES PRECAUTIONARY CHEMICAL REGULATION: EXPLOITATION OF THE AVAILABILITY HEURISTIC BY ECONOMICALLY MOTIVATED ACTORS By Nathan Ostrander Corporations often promote fears among consumers and then sell products to alleviate those induced fears. Certain fears are particularly susceptible to heightened anxiety because they are vulnerable to the availability heuristic: the cognitive tendency to overestimate the occurrence of an event if it is easily brought to mind, or is available in our consciousness, which leads to errors in risk assessment. Acutely aware of the universal tendency to misjudge certain risks, corporations, acting rationally and in conformity with profit-maximizing behavior, …

Toward A Constructive Engagement: Agricultural Biotechnology As A Public Health Incentive In Less-Developed Countries, Chidi Oguamanam

Chidi Oguamanam

Concerns over global public health crises, especially as they relate to less-developed countries are dominated by the issue of access-freeze to life-saving drugs. Without discounting the problem of access to essential drugs, this article shifts attention from that conventional discourse and focuses on the relationship between biotechnology, specifically agro-biotech, and nutritional health. It argues that despite the traditional reservations against agro-biotech, in some quarters, and various inchoate claims made on its behalf, it is a practical tool for public health intervention. The article examines the concept of bio-fortification or functional food as a viable public health strategy against the scourge …

Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs, Prentiss Cox

Prentiss Cox

Property Assessed Clean Energy (“PACE”) is a method of public financing for energy improvements through special assessments on local government property taxes. Interest in PACE exploded from its origination in 2008, with almost half the states rapidly enacted legislation enabling local governments to use their property collection power for this purpose. The growth in PACE is now suspended, and existing programs have been put on hold, in the face of opposition from the federal secondary mortgage market regulators. Governments and environmental advocates supporting PACE have initiated litigation against the federal regulators and are seeking passage of federal legislation to revive …