Law Commons^™

Negotiating With Someone Else's Money: Shifting The Responsibility For Climate Change Funding, Richard Faulk

Richard Faulk

Some people think that “Climategate” will ultimately undermine everything that the UN is attempting to resolve in Copenhagen, but that story is for a later column. The truth, however, is that the parties – all of whom profess agreement that man-made global warming is a reality – are doing a powerful job of self-destructing outside the scientific controversy. The divisive issue is, as expected, which nations will bear the costs necessary to deal with climate change, and how those costs will be apportioned. Judging from yesterday’s conflicts, it seems that even those who agree that the problem exists are in …

The Insolence Of Office: Exposing The Politics Of Perception In Copenhagen, Richard Faulk

Richard Faulk

Despite the malaise that seemed to overlay the Copenhagen Climate Change Conference before opening day, the summit opened with a flourish of rhetoric and apparent optimism by a host of attendees. In a statement titled “Governments set to seal ambitious international climate change deal in Copenhagen,” UNFCCC Executive Secretary Yvo de Boer, the UN’s top climate change official, practically overflowed with enthusiasm, sounding supremely confident that an international climate change deal was within reach.

The First "Official" Draft Of The Copenhagen Agreement: Blanks, Brackets, Chewing Gum, And Baling Wire, Richard Faulk

Richard Faulk

The war of words – and the fight over money – continued at the Copenhagen conference on Friday. Although some parties continue to posture and insist that the negotiations are between the “haves” – “developed” nations such as the United States and Japan – and the “have nots” – “developing” nations such as China and the “G77” group – those classifications are increasingly imperiled by harsh rhetoric and unrealistic expectations.

The Queer Case Of The Quarelsome Convocation: Allies, Adversaries, Indifference And Exaggeration In Copenhagen, Richard Faulk

Richard Faulk

There’s no doubt, insofar as the UN is concerned, that the island nations are in desperate plight. In fact, the UN seized yesterday as an opportunity to unveil a barrage of new scientific information directly affecting the islanders’ interests. The day climaxed with an appearance by Al Gore himself, who relayed a disturbing forecast of vanished polar ice within five years. All of the disclosures were orchestrated masterfully, presumably in an attempt to create an irresistible cascade of information which, in turn, would motivate negotiators to reach a global agreement. Unfortunately, by the end of the day, all of this …

The "Climategate" Controversy: A Tree Falls In The Forest -- But Is Copenhagen Listening?, Richard Faulk

Richard Faulk

An old philosophical riddle asks "If a tree falls in a forest and no one is around to hear it, does it make a sound?" The “Climategate” tree has fallen, and there were plenty of people around, both in Copenhagen and Washington, to hear it. The question is, however, was anyone listening? For the sake of the Copenhagen conference, and our Republic, one hopes so.

Bringing Diplomacy To A Boil: Options For Agreements In Copenhagen, Richard Faulk

Richard Faulk

As of Tuesday night, United Nations negotiators still disagreed on the financial aid that the US, Japan and other developed nations will give to the developing world to cope with climate change, Bloomberg reports, referring to a draft document. Many believe that the conference is seriously deadlocked. Well, maybe so, but alternatives still exist, and they have not, at least according to all reports, been fully considered.

Copenhagen’S Disappointing Dénouement: Anatomy Of A Failed Convocation, Richard Faulk

Richard Faulk

The Copenhagen Climate Change Conference is over. For two weeks, the United Nations and its member nations waited expectantly for “change” – waited, cajoled, argued, accused, threatened, and ultimately, disappointed everyone involved as they struggled on the “World Stage” of Copenhagen’s Bella Center. Tens of thousands watched inside and outside the Center while the convocation became ever more divisive and quarrelsome as the “developing” nations of the world demanded that their “developed” counterparts “share” their wealth and technology to “save the planet.” From the beginning of the conference, few informed attendees realistically expected significant progress, largely because of the twin …

The Crucible Of Common Sense: Real And Illusory Expectations In Copenhagen, Richard Faulk

Richard Faulk

The agenda is set for the United Nation’s Climate Change Conference in Copenhagen – but few attendees expect substantial progress.. As most students of international diplomacy know, leaders seldom risk valuable political capital on meeting that are expected to be unproductive. As a result, staff and other underlings strive to reach consensus so that, at the worst, some positive result can be declared. Now the consensus expectations are apparent, and predictably, they are far less promising than many delegates hoped.

Property Vs. Political Holdouts. The Case Of The Tgv Rail Line Lyon-Budapest In Italy, Livia C. Navone

Livia C. Navone

While the law and economics literature commonly justifies the takings power on the ground that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward, this paper shows that the standard theory is highly incomplete. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Consequently, once these groups, which I label “political holdouts,” are added to the analysis, it becomes clear that the payment of just …

The Sorcerer Ii Expedition: Intellectual Property And Biodiscovery, Matthew Rimmer

Matthew Rimmer

This article considers the significance of a leading marine biodiscovery initiative. In March 2004, Dr. J. Craig Venter announced the official launch of the Sorcerer II Expedition, a scientific expedition of discovery, which would survey marine and terrestrial microbial populations. The Expedition has the potential to uncover tens of thousands of new microbial species and tens of millions of new genes. Venter has disavowed that the Sorcerer II Expedition has any commercial ambitions. However, some have viewed the Sorcerer II Expedition with suspicion. Various civil society groups have accused the Expedition of engaging in ‘biopiracy’. This article investigates the Convention …

The Plachimada Problem, Nishita Vasan

Nishita Vasan

Groundwater is a precious natural resource for a community. The acute water shortage and pollution hazard created by the actions of the Coca Cola Company in Perumatty Grama Panchayat, Kerala has grave implications for Kerala’s farming community. Concomitantly, the decision of the Division Bench of the Kerala High Court will critically impact environmental jurisprudence in India. The Division Bench, while considering multifarious issues involved, adopted a narrow approach and failed to take into account material factors which could have substantially altered the result of the case. The Judiciary and the State failed to recognise the principle of public trust that …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights, Allison M. Dussias

Allison M Dussias

Abstract: SPIRIT FOOD AND SOVEREIGNTY: PATHWAYS FOR PROTECTING INDIGENOUS PEOPLES’ SUBSISTENCE RIGHTS

By Professor Allison M. Dussias

This article examines three pathways recently followed by Native American tribes and other Native communities in seeking protection of their rights to culturally valuable and legally protected subsistence resources – wild, renewable resources on which Native peoples have traditionally relied to sustain themselves. They have pursued their claims not only through litigation in U.S. courts, but also through claims to international bodies and through the regulatory process. The sources of law and rights on which they have relied as they followed these different …

Premature Burial? The Resuscitation Of Public Nuisance Litigation, Richard Faulk, John Gray

Richard Faulk

On Sept. 22, the U.S. Court of Appeals for the Second Circuit, in Connecticut v. American Electric Power Co., held that federal common-law nuisance suits can proceed against major greenhouse gas emitters. Nine days later, a federal trial court reached the opposite conclusion in another case. In this article, attorneys Richard Faulk and John Gray discuss these rulings, and the revival of public nuisance litigation.

Solar Energy Policy In Canada: An Overview Of Recent Legislative And Community-Based Trends Towards A Coherent Renewable Energy Sustainability Framework, Kamaal Zaidi

Kamaal Zaidi

This paper outlines solar energy policy in Canada, in the hopes of advancing renewable energy policy. More specifically, the most recent advances in public policy relating to renewable energy are examined in selected provinces to show how solar energy is on the rise in Canada. The technology behind solar energy is briefly analyzed, while the legal aspects of solar energy are covered to build upon the discussion in various provinces. Since much of Canadian solar energy policy draws from Germany, Japan, and the United States, these three jurisdictions are mentioned to show their solar energy policies. The paper ends with …

State Authority To Regulate Toxins In Children's Consumer Products, Doug Farquhar

Doug Farquhar

The rapid rise over the last several years in the number of recalled children's toys along with media coverage of foreign-manufactured products containing lead and other toxins created a public groundswell demanding stricter controls on toys and other children's products. In response, lawmakers have tightened existing toy safety standards, increased enforcement capability of state and federal authorities, and expanded the number of regulated substances, first by state lawmakers, followed by Congress with the enactment of the Consumer Product Safety Improvement Act of 2008. This article explores the extent to which the Consumer Product Safety Improvement Act of 2008 preempts existing …

The Changing Of The Cattle Guard: Blm's New Approach To Grazing Qualifications, Hillary M. Hoffmann

Hillary M Hoffmann

This article traces the history of the four qualifications requirements for applicants seeking grazing permits on public domain lands under Bureau of Land Management jurisdiction: (1) citizenship/residency, (2) livestock ownership, (3) base property and (4) grazing preference. The article discusses the origins of these four requirements in the common grazing practices on the federal range in the early twentieth century, when grazing was unregulated, then discusses the extent to which they are explicitly or impliedly incorporated into the Taylor Grazing Act, and finally, explains the regulatory history of each requirement from 1934 to the present. The article concludes that BLM’s …

Debunking The "Divine Conception" Myth: Environmental Law Before Nepa, Michael C. Blumm

Michael Blumm

This is a review of Karl Brooks' book, "Before Earth Day: The Origins of American Environmental Law, 1945-70." Brooks challenges the standard account given in most America law school classes that has environmental law bursting onto the legal scene in the "environmental decade" of the 1970's. Like the "miracle in Philadelphia" in the summer of 1787, this "divine conception" theory of the genesis of environmental law is a myth, as Brooks ably demonstrates. He discusses the struggle to pass environmental statutes in the late 1940's like the Fish and Wildlife Coordination Act, as well as successful block developments like Idaho …

Shifting The Paradigm: Broadening Our Understanding Of Agriculture And Its Impact On Climate Change, Annise Maguire

Annise Maguire

Scientists have determined that the Earth is warming at an unprecedented rate. Governments around the world are in near unanimous agreement about the existence of climate change and the threat it poses. Further, there is a growing consensus within the global scientific community that the primary cause of climate change is increased emissions of greenhouse gases (GHGs) related to human activities. At best, it appears that human actions are exacerbating the natural heating of the earth; at worst, humans are the primary cause of the rapid rise in temperatures.

Unfortunately, policies enacted to date have failed to take into account …

Pcbs In Schools And Corporate Responsibility For Remediation: Yorktown Central School District V. Monsanto Company, Valerie J. Watnick

Valerie J. Watnick

From 1950 to 1977, thousands of school buildings in the United States were constructed or renovated using materials containing man-made materials called poly chlorinated bi-phenols, commonly known as “PCBs.” In 1977, Congress banned most uses of PCBs in construction, recognizing the adverse health effects of these man-made compounds. Despite this ban and the now widely held belief that PCBs are known animal carcinogens, probable human carcinogens and have other toxic effects on the human reproductive, immune, endocrine and neurological systems, these compounds are still commonly found in school buildings throughout the United States. This article asserts that just as concerns …

Meaningful Participation In A Global Climate Regime, Bryant Walker Smith

Bryant Walker Smith

An effective climate regime must be global rather than merely international and must contemplate the significant involvement of actors other than states. “Meaningful participation” in a global climate regime is already occurring in the Global South. That participation helps to satisfy the existing international legal obligations undertaken by developing states and merits greater recognition in future legal regimes. Moreover, that participation constitutes a form of global governance separate from the United Nations Framework Convention on Climate Change (UNFCCC) and, regardless of its legal status, deserves greater attention in practical efforts to address climate change.

The article has several parts. First, …

Misunderstanding Models In Environmental And Public Health Regulation, Wendy E. Wagner, Elizabeth Fisher, Pasky Pascual

Wendy E. Wagner

Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, models are too often used by policymakers as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a chain reaction of problems that begin with policymaking itself, but then radiate into the science of modeling and into regulatory deliberations where regulatory participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered …

Rights, Rights Everywhere And Not A Fish To Fish: Considering Aboriginal And Treaty Rights In Canada As A Platform For Climate Change Litigation, Madeleine A. Sinclair

Madeleine A Sinclair

The very existence and identity of Aboriginal peoples is often tied inextricably to their lands and the natural resources they have depended on for so long are crucial not only for sustenance but also for cultural identity and spirituality. A complex legal regime and unique set of rights has resulted from efforts to reconcile this with the sovereignty of the Canadian crown. This paper aims to lay the foundations for an argument that, as holders of distinctive rights, Aboriginal peoples in Canada are uniquely positioned in a legal fight to force action on climate change.

This article examines aboriginal and …

Capping Carbon, David M. Driesen

David M Driesen

This article addresses the problem of how to set caps for a cap-and-trade program, a key problem in pending legislation addressing global climate disruption. Previous scholarship on emissions trading programs focuses overwhelmingly on trading’s advantages and sometimes wrongly portrays environmental improvement as an automatic byproduct of adopting a cap-and-trade approach. A trading program’s success, however, depends critically upon timely and effective cap setting. This article shows that often regulators have employed a best available technology (BAT) approach to cap setting for trading programs, i.e., setting the cap at a level that regulated polluters can achieve with government-identified technology. This descriptive …

Beyond The Global Summits: Reflecting On The Environmental Principles Of Sustainable Development, Stathis N. Palassis

Stathis N Palassis

Sustainable development advocates that in meeting the economic needs of the present we must not compromise the ability of the planet to provide for the needs of future generations. Sustainable development promotes a new economic paradigm integrating traditional economics with ecological economics and also requires developed States to reduce their environmental impact leaving space for developing States to meet their own needs. Beyond that, however, a more precise meaning of sustainable development is subject to competing interpretations thus making its content far from clear. The concept has been broadly utilized in areas including biodiversity, threatened species, fisheries, climate change, international …

Is It Too Easy Being Green? A Behavioral Economics Approach To Determining Whether To Regulate Environmental Marketing Claims, Jeffrey J. Minneti

Jeffrey J Minneti

Employing principles derived from rational choice theory and behavioral economics, the article advocates the promulgation of administrative rules to govern the environmental claims sellers make about their products. The article asserts that the FTC’s current regulatory scheme, a case-by-case approach that draws upon a set of industry guidelines (called the Green Guides), is essentially impotent when considered in light of the frequency with which products in today’s market bear false or misleading environmental claims. The article is especially timely now, because the FTC is currently engaged in its own evaluation of the Green Guides’ effectiveness. While traditional rational choice theorists …

State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass

Alexandra B. Klass

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions. For decades …

Leveling The Playing Field In Gmo Risk Assessment: Importers, Exporters And The Limits Of Science, Alison Peck

Alison Peck

The WTO system requires that trade restrictions to protect health and safety be based on a risk assessment supported by “sufficient scientific evidence.” Scholars and international standards organizations have pointed out, however, that science is not capable of providing answers to questions of health and safety without incorporation of value judgments and assumptions by the risk assessors. Before GMO-importing countries conduct risk assessments, GMO-producing and -exporting countries have already conducted separate risk assessments that led to the decision to produce and market the products in the first place. Both risk assessments – of exporting and importing countries – employ science …

Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner

Wendy E. Wagner

There are no provisions in administrative law for regulating the flow of information coming in or leaving the system or to ensure that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, intended originally to ensure that executive branch decisions are made in the “sunlight,” inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing much of the decision-making processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability …

Tailoring Deference To Variety With A Wink And A Nod To Chevron: The Roberts Court And The Amorphous Judicial Framework For Review Of Agency Interpretations Of Law, J. Lyn Entrikin Goering

J. Lyn Entrikin Goering

In the 25 years since the Court issued its venerable opinion in Chevron, the Supreme Court has all but disregarded the judicial review provisions of the Administrative Procedure Act (APA), first enacted in 1946. From 1984 to 2000, Chevron took center stage as the most-cited opinion in administrative law. Beginning in 2000, the Rehnquist Court issued a series of decisions limiting the reach of Chevron. At the same time, the Court revived common law deference frameworks that predate the APA. Yet the Rehnquist Court failed to fully reconcile Chevron with its previous common law deference doctrines and with the APA’s …

Priceline For Pollution: Auctions To Allocate Public Pollution Control Dollars, Robert W. Adler

Robert W. Adler

Priceline for Pollution: Auctions to Allocate Public Pollution Control Dollars explores the intersection of auction theory and public subsidies for pollution control. The article evaluates the use of auctions as a more cost-effective tool to allocate public pollution control dollars compared to traditional public works or other models of resource allocation. It begins by explaining auction theory and design as applied to public procurement, and explains that public pollution control subsidies are simply a way in which the public purchases pollution control services. Just as auctions have been used recently to improve the efficiency of other public procurement programs, auctions …