Law Commons^™

Freshwater Conservation: A Review Of Oregon Water Law & Policy, Adell L. Amos

Adell L. Amos

In order to more fully understand and enhance freshwater conservation in the State of Oregon, The Nature Conservancy initiated a project to conduct a legal and policy review of Oregon water law. In Oregon, like all western states, water management is based on a combination of statutes, administrative rules, agency policies, and case law. Accordingly, this report identifies and explains relevant provisions of the Oregon Water Code and discusses how the legislature, state administrative agencies, and the courts have interpreted the law. The report also identifies the impacts and implications of legal and policy choices that have been made with …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

The International Tropical Timber Organization And Conservationist Forestry Norms: A Bridge Too Far, Gerry J. Nagtzaam

Gerry J Nagtzaam

This article explores the attempts to create an global tropical timber regime and examines its underlying competing environmental norms of exploitation, conservation and preservation. It outlines a history of forestry exploitation over time and tracks the stilted development of a global tropical timber regime. It further examines the development of the International Tropical Timber Agreement and its concomitant Organisation. Legro’s test of the robustness of a norm is applied to the tropical timber regime to determine when and why, and through whose agency, normative change has not been effected within the International Tropical Timber Organisation where conservationist norms have failed …

The International Whaling Commission And The Elusive Great White Whale Of Preservationism, Gerry J. Nagtzaam

Gerry J Nagtzaam

This article explores the attempts to create an global legal whaling regime and examines its underlying competing environmental norms of exploitation, conservation and preservation. It outlines a history of whaling exploitation over the centuries and tracks the development of early whaling regimes as well as examining the development of the International Whaling Commission and treaty. Legro’s test of the robustness of a norm is applied to the whaling regime to determine when and why, and through whose agency, normative change was effected within the Commission.

Reducing Emissions From Deforestation In Developing Countries: International And National Governance (Case Study Of Indonesia), Nathaniel Mangunsong

Nathaniel Mangunsong

The United Nations Framework Convention on Climate Change meeting in Bali in December 2007 resulted in a landmark decision on Reducing Emissions from Deforestation in Developing Countries (RED). This scheme promises an option of reducing deforestation as well as promoting carbon credit as an alternative income-generating activity within forest countries. However, there are still some challenges and issues that must be resolved before there can be successful implementation of this scheme such as the issues of leakage and permanence. These issues need to be addressed through establishing strong international and national governance. On the international level, there is a need …

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources: An Analysis Of Global And Local Implications Towards An Optimal Normative Construction, Kuei-Jung Ni

Kuei-Jung Ni

Since the Convention on Biological Diversity (CBD) was in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. Prior informed consent (PIC) of the ABS constitutes a major means to deter illegal bio-piracy and to ensure fair access to genetic resources. Given the differential social structure in individual nations, there seems to be no consistent pattern of PIC domestically. Some legislatures recognize the decisive role of indigenous or local communities in the context of enforcing PIC, making access to genetic resources impossible without their consent. On the other hand, several central governments …

Synthesizing Tsca And Reach: Practical Principles For Chemical Regulation Reform, John S. Applegate

John S Applegate

The European Union’s newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative, inasmuch as TSCA is widely regarded as a disappointment among US environmental laws, and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory concepts that were not available to the framers of TSCA thirty years ago. The passage of REACH has sparked renewed interest in reforming TSCA, and the reformers …

Shanghaied? How The Commercial Value Of Electronic Waste Has Deterred Efforts To Regulate Its Movement From The United States To China: The Resulting Impact On The Chinese Economy And Environment, Cameron B.F. Black

Cameron Black

If you are interested in how discarded electronics get from the United States to China, and why (the answer may surprise you), please read this paper. Abstract included.

The Last Stand Of The Wild West: Twenty-First Century Water Wars In Southern California, Shannon M. Baker-Branstetter

Shannon M Baker-Branstetter

In 2003, the Imperial Irrigation District of California agreed to transfer water from rural Imperial County to urban Southern California cities as part of a quantitative settlement agreement (QSA). The Colorado River water that the Imperial Irrigation District (IID) transferred to the wealthy coastal cities was held in trust for the residents of the Imperial Valley, the poorest county in the State. The following paper asserts that the IID Board of Directors breached its trust to the residents and farmers of Imperial County when it sold water rights to municipal districts in Southern California, thus acerbating the poor economic conditions …

National Chaos?: Would The Indirect Expropriation Provisions Of The Korea-Us Fta Destroy The Korean Land Use System?, Jeeyeop Kim

Jeeyeop Kim

There have been on-going debates and concerns over whether the Korean land use system, which was built on a theory of strong social obligation on property rights, will be destroyed by the indirect expropriation clause under Chapter 11 of KORUS-FTA. Most of these concerns, however, are exaggerated, as they fail to recognize the international trends of indirect expropriation clauses and the similarities among U.S., international, and Korean laws. This article explores how the KORUS-FTA indirect expropriation clause will affect the Korean land use system. It demonstrates that, although Chapter 11 of KORUS-FTA presents the risk of encroaching upon national sovereignty, …

National Chaos?: Would The Indirect Expropriation Provisions Of The Korea-Us Fta Destroy The Korean Land Use System?, Jeeyeop Kim

Jeeyeop Kim

There have been on-going debates and concerns over whether the Korean land use system, which was built on a theory of strong social obligation on property rights, will be destroyed by the indirect expropriation clause under Chapter 11 of KORUS-FTA. Most of these concerns, however, are exaggerated, as they fail to recognize the international trends of indirect expropriation clauses and the similarities among U.S., international, and Korean laws. This article explores how the KORUS-FTA indirect expropriation clause will affect the Korean land use system. It demonstrates that, although Chapter 11 of KORUS-FTA presents the risk of encroaching upon national sovereignty, …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to …

On Notions Of Fairness In Environmental Justice, Dennis C. Cory

Dennis C Cory

Environmental justice (EJ) is concerned with the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. An especially contentious issue in the EJ arena of concerns is the siting of potentially polluting activities, particularly activities that increase environmental risks while providing economic development benefits. It is argued that conventional notions of fairness, frequently advanced in EJ settings, offer little, if any, guidance on how siting proposals should be evaluated. By advocating the deontological pursuit of a right, equality, or …

Petition Without Prejudice: Against The Fraud Exception From The Toxic Tort Perspective, Jim M. Sabovich

Jim M Sabovich Jr.

While often thought of as a chemical sibling of the personal injury family, the modern toxic tort often implicates the Constitutional right to petition. Not with its core allegation that some misconduct by defendants caused plaintiffs to be exposed to a substance which then brought on some ailment, but with the marry of this to claims that defendant knew it was contaminating the air or the groundwater, but misrepresented that information to regulators, or allegations that it downplayed the danger of its substance to lawmakers resulting in less stringent regulation. Both types of allegations seek to impose tort liability for …

Of All Things Made In America Why Are We Exporting The Penn Central Test?, Anthony B. Sanders

Anthony B Sanders

Developing countries enter into bilateral investment treaties (BITs) in order to increase foreign direct investment (FDI). Ignoring this straight forward fact has lead to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This Article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court’s Penn Central test and the test’s incorporation into the post-NAFTA round of U.S. BITs. Then, the Article examines whether an uncertain and flexible test such as Penn Central is …

Political Externalities, Federalism, And A Proposal For An Interstate Environmental Impact Assessment Policy, Noah D. Hall

Noah D Hall

Interstate environmental harms, which occur when decisions or actions in one state produce negative environmental impacts in another state, have challenged environmental law and American federalism for over a century. While even the strongest advocates of state primacy in environmental policy concede that interstate environmental harms necessitate federal governance, federal adjudication and regulation have done little to address the problem. This is due, in part, to a failure to fully understand the causes of interstate environmental harms. This article provides a new framework for understanding interstate environmental harms as political externalities caused by a combination of inadequate information, public process …

Substance Or Illusion? The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Amanda Leiter

Individuals and interest groups challenging agency action or inaction often must allege not that they or their members have been or certainly will be harmed by the agency’s approach, but instead that they face an increased risk of future harm. Courts struggle to analyze standing in these so-called “increased-risk” cases: Does the elevated risk constitute the necessary injury-in-fact, or must the likelihood of realized harm exceed a certain threshold before the case becomes cognizable? Several circuits take the former view, but the D.C. Circuit requires plaintiffs to establish that the alleged risk clears some indeterminate “sufficiency” or “substantiality” bar. The …

Regulation With Placebo Effects, Anup Malani

Anup Malani

There is a growing body of empirical evidence supporting the existence of placebo effects in medical contexts and is suggestive of nontrivial placebo effects in non-medical contexts. This paper reviews the literature on placebo effects, examines the implications for four fields of law (drug approval, informed consent law, consumer protection law, and torts) and suggests future areas for research on placebo effects. Specifically, it make the case for altering the drug approval process to account for, if not credit, placebo effects. It suggests allowing evidence of placebo effects as a defense in cases alleging violations of informed consent or false …

The Tragedy Of The Common Heritage Of Mankind, Scott James Shackelford

Scott Shackelford

No abstract provided.

Justice Kennedy And Ecosystem Services: A Functional Approach To Clean Water Act Jurisdiction After Rapanos, Robin K. Craig

Robin K. Craig

Justice Kennedy’s “significant nexus” test may emerge as the proverbial silver lining of the U.S. Supreme Court’s June 2006 decision in Rapanos v. United States, at least so far as recognition of ecosystem services is concerned. The Court’s opinion in Rapanos was fractured. Nevertheless, it left no doubts that the Clean Water Act’s jurisdiction over “navigable waters” had been limited, drawing criticism for both its lack of clarity and its restriction of federal jurisdiction under the Act.

The extent of that restriction, however, would depend on which of the three major opinion’s in the case – Justice Scalia’s plurality, Justice …

The Idea Of Pollution, John Copeland Nagle

John Copeland Nagle

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …

United States V Atlantic Research Corp.: Who Should Pay To Clean Up Inactive Hazardous Waste Sites?, Aaron Gershonowitz

Aaron Gershonowitz

In United States v Atlantic Research Corp., 127 S. Ct. 2331 (2007), the Supreme Court held that a person who voluntarily remediated an inactive hazardous waste site could bring a cost recovery action under § 107(a) of the Superfund Law. The decision includes a major reexamination of who may bring a Superfund cost recovery claim. Additionally, because three years earlier, in Cooper Industries v Aviall Services Corp., 543 U.S. 157 (2004), the Court held that a volunteer could not bring a contribution claim, the Court needed to redefine the relationship between § 107(a) (the Superfund Law’s primary liability provision) and …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, truth-telling, and anti-privatization. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to engage …

Resolving The Spent Fuel Issue For New Nuclear Power Plants, Fred P. Bosselman

Fred P. Bosselman

No abstract provided.

Technical Capacity, Policymaking And Food Standards: An Overview Of Indian Experience, Nupur Chowdhury, Sanjay Kumar

Nupur Chowdhury

The SPS Agreement in the WTO gives legal validity to the CODEX standards. Since the developed countries have been at the forefront of setting the food standards in the CODEX, the developing countries have been increasingly engaged in the CODEX, and also in the WTO, with an objective to increase their exports of the agricultural and food products. But such objective and desire have often been stymied by the lack of institutions which can sustain the intense technical negotiations at the CODEX. If these participations are not qualitatively satisfactory, the very objective of such participations is not fulfilled. But since …

Success By 1000 Cuts: The Use Of Environmental Impact Assessment In Addressing Climate Change, Caleb W. Christopher

Caleb W Christopher

EIA has traditionally been used to address more obvious and localized ecological impacts. In practice, EIA has had an increasing tendency to operate at an “autopilot” setting, producing voluminous amounts of technical data, but often not taking advantage of the process as an opportunity for creative decision-making. This practice has led to the mistaken presumption that EIA is unable to tackle the complex challenges of climate change. Climate change is a non-traditional environmental topic in that there is an immense volume of cumulative contribution of pollutant gasses, but that there are few, if any, major contributing sources responsible for a …

Regional Commons: An Assessment Of The Impact Of The Framework Convention And Kyoto Protocol On The Organization Of American States And The Association Of South East Asian Nations And Suggestions For The Role Of Regionalism In International Environmental Law, Alexandra R. Harrington

Alexandra R. Harrington

Abstract of Regional Commons, Alexandra R. Harrington, Esq.

In an age of increasing globalization, it is interesting to note the plethora of regional and subregional groups which exist in international law and society today. These groups exist to further a variety of purposes, from general well-being and cooperation within the designated region to business and trade promotion to military alliances. Within these groups, the Organization of American States (OAS) and the Association of South East Asian Nations (ASEAN) are among the most comprehensive in purpose and regional membership. These organizations are also among the oldest and best established regional groups, …

Mr. Smith Goes To Nairobi: The Unwritten Role Of Local Actors Within International Environmental Law, Caleb W. Christopher

Caleb W Christopher

This article first describes the existing participatory landscape of international environmental law. Local or regional governments, under a traditional federal model of domestic environmental law, are often responsible for undertaking some degree of discretionary enforcement of national policy. In addition, a variety of other tools, including citizen suits, public hearings and rulemaking comment, afford local communities with some degree of direct participation. However, under traditional international law, local communities often lack meaningful participatory mechanisms. Local government’s role includes very limited regulatory abilities and international business solicitation. Local communities may have a limited role during public comment periods of environmental impact …

Unbundling Property In Water, Sandi Zellmer, Jessica Harder

Sandi Zellmer

Attempts to privatize water resources have triggered a “morality play of rights versus markets, human need versus corporate greed.” Salzman (2006). The controversy is not limited to the developing world. One of the most divisive issues in contemporary natural resources law in the United States is whether interests in water are property. According to the Restatement of Property, the term “property” describes “legal relations between persons with respect to a thing.” Of course, not all economic relationships give rise to property rights. The common metaphor for property, a bundle of rights, does little to illuminate defining characteristics of property or …

Beyond The Myth Of Everglades Settlement: The Need For A Sustainability Jurisprudence, Alfred R. Light

Alfred Light

No abstract provided.