Law Commons^™

Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the reasons local governments find difficulty influencing pipeline-routing decisions. For example, federal law controls interstate natural gas pipeline permitting, which is complicated and inaccessible. State law, particularly in Ohio, heavily favors utilities, in part by preempting local efforts to make local decisions regarding oil and gas development. Finally, the information gaps are enormous between what local governments need to influence pipeline-routing decisions and what is accessible.

This Article addresses barriers to local influence by discussing the efforts of citizens and local governments to influence the routing of NexusSpectra's natural gas transmission pipeline, which was recently constructed and …

When States' Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban …

Applying Some Lessons From The Gulf Oil Spill To Hydraulic Fracturing, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

In this article, Robertson notes that Ohio is moving quickly towards hydraulic fracturing of horizontal wells and some argue it has insufficiently considered and managed that rush in light of the potentially disastrous, albeit unlikely, consequences of groundwater contamination, explosion at wells or drilling sites, depletion of freshwater supply as high volumes are used in fracturing, and disposal of contaminated flowback water. Similarly, although drilling for oil from deep water rigs was neither a new idea nor a new technology when the Macondo well blew out on April 20, 2010—killing 11 people, spewing tons of oil in the Gulf of …

Public Access To Private Land For Walking: Environmental And Individual Responsibility As Rationale For Limiting The Right To Exclude, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

Whether people have an independent right of access to walk on land they do not own is a question answered differently throughout the world, largely due to cultural, historical, and political variations amongst regions. In this decade, English citizens gained a legislated right to roam on privately owned land designated by the government for public access. The British government now designates land as access land by evaluating the nature of the land itself, not its ownership status. In Sweden, the right to roam on land owned by another has long been a deeply rooted cultural tradition, though not codified in …

Reincarnating The “Major Questions” Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail R. Moncrieff

Law Faculty Articles and Essays

This Article proceeds as follows. Part I describes the birth of the major questions exception in MCI and Brown & Williamson and the death of the exception in Massachusetts. Part II identifies the three forms of the major questions rule that the Court and the literature have proposed to date and rejects all three, concluding that the rule ought not to be reincarnated if it cannot also be reformed. Part III proposes the noninterference form of the Chevron exception, demonstrating its foundations in the history of the major questions cases and demonstrating its similarities to other noninterference rules. Part IV …

Seeking A Seat At The Table: Has Law Left Environmental Ethics Behind, As It Embraces Bioethics?,, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

Bioethics evolved from theoretical philosophy into an applied field. Decision makers in health and medical sciences involve bioethicists in decisions and policy making. Although people study environmental ethics, mainly in philosophy programs, environmental ethicists are not involved in decision making. I explore the development of bioethics and environmental ethics, primarily considering the role of law in their development. I ask whether laws and legal opinions encouraging the use of bioethicists in decision making promoted the development of applied bioethics, and correspondingly, whether the absence of laws and opinions promoting environmental ethicists retarded the development of applied environmental ethics. Finally, I …

Changing The Bathwater And Keeping The Baby: Exploring New Ways Of Evaluating Intent In Environmental Discrimination Cases, Browne C. Lewis

Law Faculty Articles and Essays

This paper is divided into four parts. Part one consists of a general overview of the problem of environmental discrimination. Part two gives a brief discussion of relevant Equal Protection jurisprudence. The section begins with a summary of general Equal Protection law. Then, the section analyzes the primary cases that established the foundation of modem-day Equal Protection doctrine. Part three examines the current application of the intent requirement in environmental discrimination cases. To that end, the section reviews the outcome of three of the early environmental discrimination cases, and speculates about the components that are necessary to prepare a successful …

What You Don't Know Can Hurt You: The Importance Of Information In The Battle Against Environmental Class And Racial Discrimination, Browne C. Lewis

Law Faculty Articles and Essays

People across the country have witnessed the quality of their local environment decline in the name of progress but Lewis argues that tow-income and minority persons have observed the disproportionate placement of environmental hazards in their communities. That disparity has partially resulted from environmental discrimination based upon class and race. Acknowledging unequal treatment of low-income and minority persons has led to the development of the concept of "environmental justice. "

The premise of this Article is that, in order to effectively combat environmental discrimination, people must have access to quality information. Information may be used as a remedial measure. This …

It's A Small World After All: Making The Case For The Extraterritorial Application Of The National Environmental Policy Act, Browne C. Lewis

Law Faculty Articles and Essays

The purpose of this article is to illustrate why NEPA should be applied extraterritorially. For purposes of this article, extraterritorially means "beyond the territorial jurisdiction of the United States." Section One discusses the mandates of NEPA and its importance to the protection of the environment. In the second section, the article addresses the historic treatment of the issue of NEPA' s extraterritorial application by the legislative, executive and judicial branches. The third section analyzes the possible future treatment of the issue by those branches. The fourth section consists of a discussion of the reasons why NEPA should be applied extraterritorially. …

How Many Times Do I Have To Tell You?! Epa's Ongoing Struggle With Data From Third-Party Pesticide Toxicity Studies Using Human Subjects, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses EPA's current and historic policy struggle regarding the position the Agency should take with respect to pesticide toxicity studies done by third parties in their attempts to register pesticides. Chemical companies often conduct these studies, or seek third-parties to do so, and submit the results to EPA in support of applications for pesticide registration. Although EPA had a high level joint Science Advisory Board/FIFRA Science Advisory Panel make recommendations to it on this subject in 1999, last year EPA asked the National Academy of Sciences to conduct additional, almost certainly duplicative review. Specifically, EPA has asked the …

Legislative Innovation In State Brownfields Redevelopment Programs, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

States throughout the country have created legislation and administrative programs to encourage the cleanup and redevelopment of urban brownfield land. In part, these efforts respond to the federal government's recent focus on the issue. However, leadership in method and approach has come, not from the federal government, but from the states. States have approached the cleanup and redevelopment of contaminated land in a variety of ways, some choosing to create voluntary cleanup programs, others imposing mandatory cleanup programs, and still others using combinations of these approaches. Regardless of method, however, the push to clean brownfield land is grounded in a …

It's Been 4380 Days And Counting Since Exxon Valdez: Is It Time To Change The Oil Pollution Act Of 1990, Browne C. Lewis

Law Faculty Articles and Essays

The first Part of this Article examines the liability scheme that existed prior to the EXXON VALDEZ oil spill. In the second Part, the Article analyzes the liability scheme that was created by the Oil Pollution Act of 1990 (OPA). The final Part of the Article evaluates whether the OPA's liability scheme would be able to effectively deal with an oil spill of the magnitude of the EXXON VALDEZ oil spill.

Environmental And Brownfield Liability: Relative Influence On Corporate Expansion And Relocation, Heidi Gorovitz Robertson, Alan K. Reichert

Law Faculty Articles and Essays

Many states in America have enacted laws to encourage the development of contaminated properties. The laws attempt to do this by addressing one barrier to redevelopment, the environmental liability attached to contaminated properties. In general, the laws attempt to remove or reduce the significance of that barrier by reducing or eliminating the environmental liability risk attached to these properties. Our hypothesis was that these efforts cannot significantly encourage redevelopment because they fail to address non-environmental barriers to urban redevelopment. To determine whether this legislative focus on environmental liability is misplaced, we conducted a survey of Northeast Ohio businesses, which had …

Pesticide Toxicity, Human Subjects, And The Environmental Protection Agency's Dilemma, Heidi Gorovitz Robertson, Samuel Gorovitz

Law Faculty Articles and Essays

Should humans be used as subjects in research designed to determine the toxicity of pesticides? If so, under what conditions should they be used? If not, why not, given that human subject testing is common in research studies designed to determine the safety and efficacy of drugs? Should the EPA seek, or even accept, the results of such research in formulating the evidentiary base it uses in making decisions about pesticide registration? This article does not propose to answer these questions, but to illuminate the process by which they are addressed and offer some suggestions about how other such questions …

Analysing The Extraterritorial Application Of The National Environmental Policy Act, Browne C. Lewis

Law Faculty Articles and Essays

The purpose of this paper is to examine the issue of whether, in light of Congress' actions and the judicial precedents, NEPA should be applied extraterritorially. Section One discusses the extraterritorial application of United States laws in general, the bases supporting the extraterritorial application, and the tests courts have relied upon to determine the appropriateness of extraterritorial application. The section also explores the presumption against extraterritoriality and the logic behind it.

In the second section, the paper addresses the extraterritorial application of NEPA. That sections includes an analysis of the congressional, executive and judicial treatment of the issue. The third …

Deed Restrictions And Other Institutional Controls As Tools To Encourage Brownfields Redevelopment, Heidi Gorovitz Robertson, Robert A. Simons

Law Faculty Articles and Essays

This article concerns the use of deed restrictions and other institutional controls as tools to encourage brownfields redevelopment.

One Piece Of The Puzzle: Why State Brownfields Programs Can't Lure Businesses To The Urban Cores Without Finding The Missing Pieces, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

U.S. EPA, state legislatures, and state administrative agencies have invested considerable time and money resources to encouraging urban renewal through the redevelopment of contaminated urban properties, called brownfields. These efforts attempt to induce businesses to clean and redevelop brownfields by reducing the numerous environmental barriers to redevelopment, such as the enormous cost of clean-up and threat of immeasurable liability. In this Article, I argue that environmental barriers to redevelopment, although important, are but one piece of a complicated urban redevelopment puzzle. The other pieces, largely missing from existing efforts to encourage redevelopment of brownfields are non-environmental factors, such as size …

Welcome To Mongolia: From Genghis To Gingrich, David R. Barnhizer

Law Faculty Articles and Essays

My environmental work has increasingly assumed an international dimension, an odd twist in a career that began with civil rights and poverty law, moved into teaching, and now is expanding into international trade and both international and domestic environmental law. The world of international environment and development lead inevitably to travel. My work in the past year has meant Honduras, Portugal, Spain, Ecuador, and Colombia--with Russia and perhaps China, Malaysia, and Thailand looming on the horizon. But last August when I arrived in Ulaanbaatar, the capital of Mongolia, and stood beside the statue of national hero and Marxist liberator Choibalsan, …

Methods For Teaching Environmental Law: Some Thoughts On Providing Access To The Environmental Law System, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article surveys methods that could improve the effectiveness of environmental legal education. I propose that approaches to teaching environmental law be viewed in two ways; first, as a substantive course in which students gain access to a complex system of law, and second, as a substantive base for teaching students skills of legal process. Within both possibilities, I focus on the value of teaching students to understand the environmental law system. Instructors can introduce students to the environmental law system by looking at a few of the major environmental statutes in relative depth, or as they apply to specific …

Don't Ride Buses In Honduras, David R. Barnhizer

Law Faculty Articles and Essays

The first indication my trip to Honduras might be eventful came when our airplane divebombed the mountain-top runway in a landing that left the passengers looking at each other with relief. We stumbled from the American Airlines flights to the customs windows. That was just the beginning of a fascinating week.

If Your Grandfather Could Pollute, So Can You: Environmental "Grandfather Clauses" And Their Role In Environmental Inequity, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

When this country was struggling over voting rights, it adopted what are now called "grandfather clauses" to exclude certain groups from the democratic process. Although various types of laws excluded people from voting, a man could vote if his grandfather had been allowed to vote. [FN3] Applied to modern environmental laws, a grandfather clause, in essence, says, "if your grandfather could pollute, so can you."In the environmental arena, these laws make it much easier for companies or municipalities to expand older, existing facilities than to create new ones. They also make it significantly more difficult for opponents to shut down …

The Reemergence Of Nuisance Law In Environmental Litigation, Alan Weinstein

Law Faculty Articles and Essays

In the summer of 1980, Chicago's beaches were fouled by raw and inadequately treated sewage, allegedly discharged into Lake Michigan by the Hammond (Indiana) Sanitary District. Clearly, Illinois and Chicago officials wanted to stop pollution of the lake. Surprisingly, they turned to the common law of nuisance, rather than to a regulatory agency or a statutory citizens' suit to obtain relief, charging the city of Hammond and the sanitary district with violations of the Illinois common law of nuisance. While planners are generally familiar with the application of common law nuisance doctrines to resolve disputes between conflicting uses of land, …