Law Commons^™

Introduction, Gabriella Mickel, Samantha Blend

Pace Environmental Law Review

No abstract provided.

Implementing Nature's Rights In Colombia: The Arato And Amazon Experiences, Camila Bustos, Whitney Richardson

Elisabeth Haub School of Law Faculty Publications

Nature's rights approaches are being developed as an alternative legal means to enable justice for nature and, oftentimes, humans, too. This study examines Colombia's two seminal court-ordered nature's rights approaches which recognize ecosystems-the Atrato River Basin (2016) and the Colombian Amazon (2018)-as a legal subject with rights to protection, maintenance, conservation, and restoration. Developed as remedies for human rights violations, both cases offer opportunities to explore variations in nature's rights approaches and the relationship between efforts to enable justice for humans and nature. We build on existing scholarly engagement with the cases by contributing a detailed archival study on their …

Movement Lawyering In The Time Of The Climate Crisis, Camila Bustos

Pace Environmental Law Review

While climate litigation has emerged as a tool to tackle rising emissions and its devastating consequences, climate litigation as a strategy and movement has yet to be thoroughly analyzed through the lens of movement lawyering. Thus, this paper seeks to draw from existing literature on movement lawyering to explore the relationship between climate litigation and movement lawyering principles, addressing separate yet related questions: What does it mean to be a movement lawyer working on climate change? How do principles of climate justice shape movement lawyering and thus, climate litigation? How do lawyers think about accountability to their clients and the …

Equitable, Affordable And Climate-Cognizant Housing Construction, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The almost universal sentiment by a growing body of physical and social scientists is that climate change--with its floods, drought, heat, and cold-- portend losses of life, communities, property, and the rhythms of living. Some are more vulnerable to these impacts than others: individuals and the poor, who through official government policy and self-interest in the housing markets, have been relegated to live in poorly-constructed and poorly-placed structures--in the wake of ocean surges; in the path of strong winds; near hazardous and noxious facilities; stranded in urban heat islands. Failing to heed climate change omens will lead to a world …

The United States Climate Change Policies And Covid-19: Poisoning The Cure, Carolina Arlota

Pace Law Review

Climate change is complex during the best of times. It is commonly conceptualized as the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such measures. This conceptualization illustrates the high transaction costs involved in domestic policies as well as in international agreements addressing climate change, and it is of academic and practical interest. As such, this Article discusses the current challenges that climate change policies face, focusing on the linkages between the climate change policies of the Trump administration …

Ancestral Comprehensions For A Policy For The Future Of The Earth: The Narrative Of The South American Andes In The Face Of The Global Climate Crisis, Erick Pajares G., Eduardo Calvo B., Jorge Iván Palacio P., Juan José Munar M., Carlos Loret De Mola, Darío Espinoza M., Yuri Godoy P., Gustavo Mora R.

Pace Environmental Law Review

No abstract provided.

Addressing Correlations Between Gender-Based Violence And Climate Change: An Expanded Role For International Climate Change Law And Education For Sustainable Development, Achinthi C. Vithanage

Pace Environmental Law Review

No abstract provided.

The Carbon Storage Future Of Public Lands, Tara Righetti, Jesse Richardson, Kris Koski, Sam Taylor

Pace Environmental Law Review

To meet the climate and energy goals set forth by the Biden Administration and the Paris Agreement, the United States must dramatically reduce carbon emissions. Use of public lands for carbon dioxide removal activities, including carbon capture, utilization, and storage (CCUS), has the potential to advance carbon reduction goals and concurrently provide economic revitalization opportunities to communities dependent on fossil industries. Current federal law presents numerous challenges and opportunities associated with utilization of federal pore space for CCUS. Although federal grant programs and tax incentives encourage deployment of CCUS technologies, legal and land-management issues related to public lands have received …

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …

Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Cultural heritage (historic buildings, landscapes, and natural monuments) is being threatened by all manner of evils--attacks by belligerents seeking military advantages, increased consumptive uses, and significantly, the idiosyncratic effects of climate change. Climate change portends sea level rise and coastal erosion threats that will inundate coastal areas and the historic structures located there. Melting permafrost and changes in soil composition threaten the loss of buried archaeological evidence and compromise the integrity of ancient buildings designed for a less malevolent climate.

State and local governments have been undertaking measures to build sustainable communities to mitigate the coming changes in the climate, …

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Anxiety about the fate of human civilization is rising. International Law has an essential role to play in sustaining community of nations. Without enhancing International Environmental Law, the biosphere that sustains all nations is imperiled. Laws in the United States can either impede or advance global environmental stewardship. What is entailed in such a choice?

The biosphere is changing. At a time when extraordinary technological prowess allows governments the capacity to know how deeply they are altering Earth's biosphere, nations experience a perverse inability to cooperate together. The Arctic is melting rapidly, with knock on effects for sea level rise …

Establishing Climate Change Standing: A New Approach, Ian R. Curry

Pace Environmental Law Review

Climate change is one of the thorniest political, legal, and economic issues of our time. Therefore, a new legal approach to the issue is required. This Note proposes a streamlined approach for climate change standing, one that assumes injury in fact and causation for a class of discernible climate change harms. A streamlined approach will enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there has previously been none. Part II of this Note discusses the constitutional doctrine of standing. It begins with a summary of Article III and the logic behind …

Law, Cultural Heritage, And Climate Change In The United States, Casey J. Snyder

Pace Environmental Law Review

Climate change is a reality. What happens climatically over the upcoming centuries is partially dependent on the comprehensiveness of a global response to curb emissions of greenhouse gases. However, within a century, forecasts predict a one-meter sea level rise that could have grave implications to our society: the loss of an incalculable extent of cultural heritage. This Article examines the threat climate change poses to physical cultural heritage, like archaeological sites and historic structures, and the current framework of law, regulation, and policy in the United States meant to protect these resources. This Article blends research and data from climate …

State Public Nuisance Claims And Climate Change Adaptation, Albert C. Lin, Michael Burger

Pace Environmental Law Review

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence …

A Gap In Causation? Punishing Polluters For Contributing To Climate Change & Increasing Violent Crime, Nicolette Pellegrino

Pace Environmental Law Review

Climate change will lead to an increase in violent crime. More rapes and violent felonies occur during the warm summer months than in cooler temperatures. As climate change progresses, there will be longer summers, higher temperatures, and thus, more violent crime. This Note examines whether American sanctions of environmental crimes that contribute to climate change should become more stringent given what we now know about the violent consequences of climate change. Part II of this Note describes the history and scientific evidence which proves that rising temperatures increase the rate of violent crimes. Part III reviews current regulations that deal …

The Carbon Tax Vacuum And The Debate About Climate Change Impacts: Emission Taxation Of Commodity Crop Production In Food System Regulation, Gabriela Steier

Pace Environmental Law Review

The scientific consensus on climate change is far ahead of U.S. policy on point. In fact, the U.S. has a legal vacuum of carbon taxation while climate change continues to impact the codependence of agriculture and the environment. As this Article shows, carbon taxes follow the polluter-pays model, levying taxes on the highest greenhouse gas (“GHG”) emissions—and contributions to climate change. But this is not only unsustainable; it would also undermine agricultural production and, thus, food security. This Article describes how the law can regulate climate change contributions and promote adaptation and mitigation supported through carbon taxes in the agricultural …

President Trump’S Unilateral Attempt To Cease All Implementation Of The Paris Agreement And To Withdraw From It: Constitutional?, Phillip M. Kannan

Pace Environmental Law Review

In his announcement, President Trump stated that he would comply with the withdrawal provision in the Paris Agreement. This Essay argues that, while compliance with that process may satisfy the treaty obligation, it probably does not conform to U.S. constitutional standards, and therefore, would not be binding on the United States. The argument demonstrating the failure of the President to satisfy constitutional standards proceeds as follows. Part I develops the context in which the Paris Agreement arose. Part II briefly summarizes the Paris Agreement. In Part III, I argue that President Trump’s attempt to cease implementation of the Paris Agreement …

Foreword: Private, Environmental, Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is the invited foreword to the 2017 J.B & Maurice C. Shapiro Environmental Law Symposium issue of the George Washington Journal of Energy and Environmental Law. The 2017 symposium was dedicated to the issue of private environmental governance. This essay recognizes the incredible growth of private environmental governance as an area of study in the legal academy. In addition to introducing the various contributions to the symposium issue, this essay proposes that rather than merely studying "private environmental governance" as an independent concept, scholars should look closely at the individual components, "private," "environmental," and "governance," to better understand …

Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes strategies that local governments are employing to both mitigate and adapt to climate change, using their state-given powers to plan community development and to regulate private building. Local governments have significant legal authority to shape human settlements and, in so doing, lower CO2 emissions from buildings and vehicles, increase the sequestration of carbon by the natural environment, and promote distributed energy systems and renewable energy facilities that lower fossil fuel consumption. Local elected leaders are highly motivated to avoid the on-the-ground consequences of our changing climate. The effects of climate change manifest themselves at the local level, …

A Comparative Study On Carbon Emission Reduction Systems, Mingde Cao

Dissertations & Theses

The overwhelming majority of scientists have concluded that global warming is unequivocal. The Intergovernmental Panel on Climate Change (IPCC) fifth report in 2013 concluded that the challenge of climate disruption to human beings is even more imperative than the previous report claimed, and that anthropogenic greenhouse gases (GHGs) emissions have extremely likely been the dominant causes of the observed global warming since the mid-20th century.

Anthropogenic GHGs emissions have many implications, including more intensive, extreme meteorological events, spreading of diseases, and threatening human health and life. Climate change also causes injustice in human society because of the dislocation of the …

Rethinking Force Majeure In Public International Law, Myanna Dellinger

Pace Law Review

Climate change is one of today’s most significant and complex problems. The number and level of severity of extreme weather events is increasing rapidly around the world. One year after the next, we learn that heat records have been broken once again. Climate change has been traced to a wide range of severe problems around the world, ranging from the obvious damage caused by hurricanes, floods, extreme rainfall, prolonged droughts, wildfires and a host of other weather-related issues to the perhaps less obvious such as physical and mental illnesses, “civil unrest, riots, mass migrations and perhaps wars caused by water …

Friends Or Foes? The Problem Of South Florida’S Invasive Mangroves, Kelly J. Cox, Rafael J. Araújo

Pace Environmental Law Review

A recent global review on the impacts of climate change on mangroves concluded that different regions will experience varying degrees of impacts due to the variability of expected changes in climate (shifts in precipitation, frequency and intensity of storms, droughts, sea level rise, change of ocean currents, increases in CO2 concentrations, etc.) and the variety of types and mangrove assemblages growing in these regions, including different species composition of mangrove forests. In North America and the Caribbean, these changes are dependent upon a predicted higher frequency (and intensity) of tropical storms, sea level rise, changes in patterns of precipitation, and …

Labor Leading On Climate: A Policy Platform To Address Rising Inequality And Rising Sea Levels In New York State, J. Mijin Cha

Pace Environmental Law Review

With the renewed need for state action, this paper presents a case study of a labor-led initiative in New York State that seeks to address both economic inequality and the climate crisis. It discusses how organized labor, which has historically represented fossil fuel workers and has not been seen as a traditional climate ally, put forth a comprehensive climate jobs plan that could meaningfully reduce carbon emissions while also creating good, family-sustaining jobs to reduce income inequality. As the need for a broader coalition to advocate for sensible climate policy increases, this case study provides a road map for states …

Dual Environmentalism: Demand Response Mechanisms In Wholesale And Retail Energy Markets, Sarah M. Main

Pace Environmental Law Review

This note argues that a dual jurisdictional approach to demand response programming is better suited to mitigate environmental harms than an “either-or” regulatory model. Through an exploration of FERC’s authority over wholesale demand response, state authority over retail-level demand response, and implications for electricity and capacity markets arising out of the Court’s decision in FERC v. EPSA, this note will offer effective legal mechanisms for mitigating environmental costs, while fostering environmental benefits. The next section of this note analyzes the strengths and weaknesses of state and federal regulatory approaches to demand response in isolation.

Based on this assessment, this note …

Extraterritoriality, Externalities, And Cross-Border Trade: Some Lessons From The United States, The European Union, And The World Trade Organization, Max S. Jansson

Pace Environmental Law Review

In this article, process and production method (PPM) rules are analyzed under three jurisdictions: the United States, the European Union (EU), and the World Trade Organization (WTO. The approach is justified by the fact that their rules on interstate trade reflect very similar basic objectives related to anti-protectionism. Moreover, the regimes, to a large extent, share the same structure of rules on prohibition balanced with rules on justification. All in all, the regimes reveal similar syntax. The comparability of the U.S. Dormant Commerce Clause Doctrine with both WTO law and EU free movement law has been highlighted already in previous …

Learning To Live With The Trickster: Narrating Climate Change And The Value Of Resilience Thinking, Robin Kundis Craig

Pace Environmental Law Review

This article is based on the 2015 Pace Garrison Lecture that occurred on April 1, 2015. Fittingly for a talk given on April Fool’s Day, this article focuses on tricksters. It posits that framing climate change as one incarnation of a mythological trickster can give us a better cultural narrative framework for thinking about environmental, natural resources, and energy law and policy in a climate change era. The trickster narrative can helpfully displace the dominant engineering framework that informs most of American10 environmental, natural resources, and energy law and policy and open the way to a more productive policy context …

Reevaluating Wilderness Classification And Management In The Face Of Climate Change: A Reconsideration Of Values And Ecology, Katherine Fiedler

Pace Environmental Law Review

In recognizing that the very nature of wilderness is a human construct, the values sought to be preserved can and should be reevaluated, considering the importance of wilderness in light of climate change and global ecosystem resilience, as well as how wilderness is designated and managed. Furthermore, the values that wilderness provides us will dramatically increase as climate change proceeds. Section II of this article describes the basics of wilderness protection, including the evolution of our relationship with wilderness, the history of the Wilderness Act, and what, how, and why wilderness is protected under the Act. Section III explores how …

Finding Opportunities To Combat The Climate Change Migration Crisis: The Potential Of The “Adaptation Approach”, Mariya Gromilova

Pace Environmental Law Review

The aim of this article is to demonstrate the benefits of applying adaptation approach in conceptualising the issue of climate-induced population movement and its potential to respond to the main priorities to be addressed in the context of population movement induced by climate change. This article proceeds with Section 2, which provides an overview of the main difficulties to conceptualization of the issue of climate induced population movement from empirical and legal perspectives. Section 3, drawing upon the state of play presented above, identifies the main priorities that have to be addressed. Section 4 focuses on the opportunities the Cancun …

Waste Management Vs. Climate Mitigation: How Co2 Sparked A Clash Of Environmental Values, Wesley Dyer

Pace Environmental Law Review

The looming threats of climate change dominate global politics, national and economic security, science, and environmental policy. As such, global, national, regional, local, federal, and state strategies are being developed to slow and mitigate the devastating effects of a warming climate. One such strategy that is slowly being used on a global and national scale is geologic sequestration, where carbon dioxide (CO₂) is captured, compressed to a supercritical state, and injected underground for permanent removal from the atmosphere. At the same time, the Resource Conservation and Recovery Act (RCRA) regulates the transport, storage, and disposal of solid and …