Law Commons^™

Cercla's Cost Recovery Statute Of Limitations: Closing The Books Or Waiting For Godot?, Alfred R. Light

Alfred Light

No abstract provided.

Advancing Freshwater Conservation In The Context Of Energy And Climate Policy: Assessing Progress And Identifying Challenges In The Western United States, Adell L. Amos

Adell L. Amos

This article critically evaluates freshwater conservation efforts in light of energy and climate policy in the western United States. Many, if not all, governmental entities today are facing tough and controversial questions involving energy demand and consumption. In the western United States, these energy questions are often inextricably linked to water resource availability and demand issues. With increased population and development pressure the challenges involving energy and water are likely to increase. Moreover, as the impacts from changes to climate and weather patterns increase various areas of the country will see changes to precipitation patterns, increased drought cycles, increased storm …

Solidarity And Subsidiarity In A Changing Climate: Green Building As Legal And Moral Obligation, Jamison E. Colburn

Jamison E. Colburn

This essay grew out of a symposium on Catholic social thought. It makes the case for solidarity and subsidiarity as principles of applied (secular) ethics by injecting them into what must be their most challenging context: catastrophic global climate disruption. It argues that the principles of solidarity and subsidiarity hold tremendous potential within our liberal constitutional tradition by exploring the developing trend toward "green building" in the United States. Part I describes what we know about greenhouse gases and climate disruption while Part II frames the principles of solidarity and subsidiarity. Part III explores the phenomenal growth of green building …

Climate Change And Freshwater Resources, Noah D. Hall, Bret B. Stuntz, Robert H. Abrams

Noah D Hall

The Earth’s climate is warming. This is the unequivocal conclusion of climate scientists. Despite the complexities of climatology, certain consistent trends emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, with more frequent heavy precipitation events and more susceptibility to drought. These simple facts will have a profound impact on freshwater resources throughout the United States, as the warmer climate will reduce available water supplies and increase water demand. Unfortunately, current water law and policy are not up to the new challenges of climate change and resulting pressures on freshwater …

Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar

Vik Kanwar

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and demonstrated in recent resolutions, and goes on to propose a normative framework based on the model of reciprocal “confidence-building” measures to ensure the legality and legitimacy of these resolutions.

Recent proliferation crises (concerning Iran, North Korea, and non-state proliferation networks) have led the Council draw upon various sources-- express and implied powers under the UN Charter, powers granted by specific treaties, and an unusual degree of international consensus-- to expand its powers. This paper attempts to transcend false …

A Realistic Evaluation Of Climate Change Litigation Through The Lens Of A Hypothetical Lawsuit, Shi-Ling Hsu

Shi-Ling Hsu

Several dozen cases that can be classified as "climate change litigation" have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liability, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of …

The Identifiability Bias In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups rather than abstract ones. The more information that is available about a person, the more likely this person's situation will influence human decision-making. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries – people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal …

Pollution Tax Heuristics: An Empirical Study Of Willingness To Pay For Higher Gasoline Taxes, Shi-Ling Hsu, Joshua Walters, Anthony Purgas

Shi-Ling Hsu

Economists widely agree that in concept, pollution taxes are the most cost-effective means of reducing pollution. With the advent of monitoring and enforcement technologies, the case for pollution taxation is generally getting stronger on the merits. Despite widespread agreement among economists, however, pollution taxes remain unpopular, especially in North America. Some oppose pollution taxes because of a suspicion that government would misspend the tax proceeds, while others oppose pollution taxes because they would impose economic hardships upon certain individuals, groups, or industries. And there is no pollution tax more pathologically hated as the gasoline tax. This is unfortunate from an …

Some Quasi-Behavioral Arguments For Environmental Taxation, Shi-Ling Hsu

Shi-Ling Hsu

For decades, economists have advocated for the adoption of environmental taxes to reduce pollution at least cost. While this campaign has largely succeeded in Europe, where a wide variety of environmental taxes are in effect, environmental taxes are few and far between in North America, as economists have failed to persuade policymakers to make any significant policy use of environmental taxes. This paper presents three new arguments that draw heavily upon the behavioralist and organizational literatures, and augment the economic arguments proffered thus far in favor of environmental taxes.

First, environmental taxation creates conditions under which firms undertake creative processes …

Water Is Security, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Reasonable and equitable water resource decision-making is at the core of good governance around the world. Sustained water collaboration is an antidote to foreign relations disintegration. Lack of water quality and quantity policies can lead to water insecurity for everyone, yet bureaucratic obstacles such as inertia and corruption must be averted in altering water governance schemes. There are multiple ways to lower transaction costs and strive for optimal water use. Several ingredients of good water governance include: (1) broad participation through the entire decision-making process; (2) transparent flow of information; (3) equitable opportunities to increase well-being; (4) accountability from governments, …

A Climate Of Extremes: Transboundary Conflict Resolution, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This Article examines evolving climate change policy. In April 2007 Massachusetts v. Environmental Protection Agency clarified that the EPA has the authority to regulate greenhouse gas emissions. This Supreme Court ruling coincided with the United Nations Security Council's decision to put climate change on its agenda. The Intergovernmental Panel on Climate Change (IPCC) has found that anthropogenic climate change has impacted the natural world and human societies. Scientific and governmental consensus has coalesced that multilateral climate mitigation and adaptation must be implemented. International institutions, governments, businesses, non-governmental organizations, and civil society can achieve multilateral greenhouse gas mitigation and climate adaptation.

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …

Cleaning Up The Mess: United Haulers, The Dormant Commerce Clause, And Transaction Costs Economics, William J. Cantrell

William J. Cantrell

In the summer of 2007, while clerking in a federal district court, I had the privilege of helping decide an issue of first impression in the 11th Circuit—whether municipal “flow control” laws are valid under the dormant Commerce Clause. Basically, flow control is simply the practice of local governments restricting exportation of solid waste from their jurisdictional boundaries, and is often enacted as a financing measure for local waste disposal facilities. The validity of such laws has been hotly debated within both legal academia and the Supreme Court itself.

Complicating the matter, the Supreme Court had just released their path-breaking …

Navigating The U.S. Transition To Sustainability: Matching National Governance Challenges With Appropriate Legal Tools, John Dernbach

John C. Dernbach

Sustainable development would require the United States to maintain and improve human prosperity while at the same time greatly reducing its consumption of energy, materials, water, and land. The scope of the challenge includes, but is not limited to, climate change. This Article suggests the elements of a legal structure for achieving sustainability.

Because achieving sustainable development is a significant learning experience, the United States will need to employ a form of governance—reflexive governance—that requires constant learning and supportive citizens and stakeholders who are also working to ensure sustainability in their own activities. The two basic problems reflexive governance must …

Achieving Early And Substantial Greenhouse Gas Reductions Under A Post-Kyoto Agreement, John Dernbach

John C. Dernbach

This article explains why policy makers should seriously consider substantial early reductions in greenhouse gas emissions as a part of any post-Kyoto framework, and sets out suggested elements of a framework for early action in a post-Kyoto agreement. Substantial early reductions are needed because of the growing urgency of the climate change science, the precautionary approach identified in the Framework Convention on Climate Change as a decision-making principle, the fact that cost-effective measures are now available, and the significant non-climate benefits (security, economic, social, and environmental) that can be achieved by implementing them. As a practical matter, too, long-term greenhouse …

Harnessing Individual Behavior To Address Climate Change: Options For Congress, John C. Dernbach

John C. Dernbach

No abstract provided.

Using Mandates And Incentives To Promote Sustainable Construction And Green Building Projects In The Private Sector: A Call For More State Land Use Policy Initiatives, Carl J. Circo

Carl J. Circo

Vantage Point, David R. Hodas

David R. Hodas

No abstract provided.

Federal Climate Change Legislation As If The States Matter, John C. Dernbach, Robert B. Mckinstry,, Thomas D. Peterson

John C. Dernbach

The growing prospect of comprehensive national climate change legislation raises many important questions about the role of state efforts in a national climate change program. This article identifies the key state/federal issues that should be addressed in any comprehensive national comprehensive climate change legislation. It also provides recommendations for resolving these issues. In addition to a cap-and-trade program and uniform national standards for some sectors, federal climate change legislation should adopt and modify the State Implementation Plan model in the Clean Air Act. That is, states should be given responsibility through State Implementation Plans to achieve specified emissions reductions, including …

Developing A Comprehensive Approach To Climate Change Policy In The United States That Fully Integrates Levels Of Government And Economic Sectors, John C. Dernbach, Thomas D. Peterson, Robert B. Mckinstry

John C. Dernbach

The United State Supreme Court's holding in Massachusetts v. EPA that greenhouse gases are air pollutants under the Clean Air Act makes it virtually certain that federal climate change legislation will be accomplished by amending that Act. This Article explains and justifies an approach to federal climate legislation that uses and builds on the Act's various tools, including air quality standards, technology-based limitations, and state implementation plans. The Article discusses models for climate response that have emerged from state responses to date and presents the reductions that could be achieved if these were scaled up to the federal level. Federal …

Ecosystem Services, The Millennium Ecosystem Assessment, And The Conceptual Difference Between Benefits Provided By Ecosystems And Benefits Provided By People, Ezequiel Lugo

Ezequiel Lugo

While the idea of ecosystem services is crucial to environmental decision-making, usage of the term “ecosystem services” is haphazard at best. The Millennium Ecosystem Assessment, reflecting the consensus of the largest group of experts ever assembled in the area of ecosystem change, encouraged increased coordination between international environmental agreement regimes and between these regimes and other international organizations. Increased coordination, however, cannot take place because of a lack of uniformity in the adoption of the Millennium Ecosystem Assessment’s definition. Moreover, some States discourage the use of “ecosystem services” because its usage in the context of payment for environmental services programs …

Why Pedestrian-Friendly Street Design Is Not Negligent, Michael E. Lewyn

Michael E Lewyn

American streets are typically designed for fast automobile traffic. As a result, those streets are often dangerous for pedestrians.

In part, the anti-pedestrian design of American streets is a result of transportation planners' perceptions of American tort law. In negligent street design cases, courts and juries sometimes rely upon guidelines set by the American Association of State Highway and Transportation Officials (AASHTO), a national association of government transportation officials. Because AASHTO's street-design rules have historically favored wide streets built to accommodate high-speed traffic, planners sometimes assume that in order to avoid liability, they must do the same.

The purpose of …

Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Expansion Of The Panama Canal, Carmen G. Gonzalez

Carmen G. Gonzalez

Post-colonial societies endowed with abundant natural resources often under-perform economically when these resources are exploited as economic enclaves lacking significant linkages to other sectors of the economy. The Panama Canal, a symbol of Panamanian identity and a reminder of Panama's lengthy colonial history, has historically functioned as an economic enclave akin to the mineral extraction and industrial agriculture enclaves prevalent throughout the developing world. Based on a case study of the contentious decision to expand the Panama Canal, this article examines the ways in which the colonial legacy distorts the development planning process, and discusses strategies that might be deployed …

A Meating Of The Minds: Possible Pitfalls And Benefits Of Certified Organic Livestock Production And The Prodigious Potential Of Brazil, Adam C. Schlosser

Adam C. Schlosser

Certified organic food represents the fastest growing segment of food production in both the United States and throughout the entire world. This article examines the issues and opportunities facing both large and small scale farmers wishing to engage in organic livestock production. Organic regulations cover everything involved in production, starting with the organic certification process and concluding with slaughter and the subsequent shipping and sale of the end organic product. The final section of this article addresses the unique ability of Brazil – described alternatively as “the world’s warehouse” and the “world’s [future] source of food” – to increase the …

Trying To Vote In Good Conscience, Elizabeth F. Brown

Elizabeth F Brown

This Article analyses the U.S. Conference of Catholic Bishops’ statement, Forming Consciences for Faithful Citizenship: A Call to Political Responsibility from the Catholic Bishops of the United States, and how it addresses the economic and environmental issues raised during the 2008 Presidential election.

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 …

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

Matthew Parlow