Law Commons^™

Moonshine To Motorfuel: Tax Incentives For Fuel Ethanol, Roberta F. Mann, Mona L. Hymel

Roberta F Mann

Abstract: Biofuels have been embraced by supporters from President George W. Bush to the Natural Resources Defense Council. Before 1930, the U.S. Treasury focused on shutting down small alcohol producers. After 1978, U.S. energy policy sought to encourage ethanol production to reduce dependence on foreign oil. Federal and state incentives have been credited with increasing ethanol production from 175 million gallons in 1980 to 3.9 billion gallons in 2005. The Internal Revenue Code contains three income tax credits designed to encourage ethanol use: the alcohol mixture credit, the pure alcohol credit, and the small ethanol producer’s credit. The credits, together …

Intermittent Currents: The Failure Of Renewable Electricity Requirements, Robert J. Michaels

Robert J. Michaels

Concern over emissions and climate change has led over half of the states to enact “renewable portfolio standard” legislation requiring regulated electric utilities to obtain some fraction of their power requirements from sources defined as “renewable.” Legislation to institute a federal RPS may follow. In reality RPS is a policy in search of a rationale, at odds with principles of efficient environmental regulation and poorly suited to promote other policies favored by its supporters. The actual record of state implementations has been largely symbolic. Only one state with a binding RPS requirement is currently in compliance with its own program, …

Blanco V. Burton: What Did We Learn From Louisiana's Recent Ocs Challenge?, Ryan M. Seidemann, James G. Wilkins

Ryan M Seidemann

In the aftermath of Hurricanes Katrina and Rita, the State of Louisiana set out to ensure greater protection of its coast. Among the approaches taken by the State was an ambitious law suit against the federal government that aimed to force more meaningful scientific studies of the impacts of Outer Continental Shelf oil and gas activities in federal waters. For years, the State had decried the damaging impacts of these activities on its coast, from oil spills to increased vessel wakes to the cutting of navigation canals through the wetlands. The State believed that the federal government could, and indeed …

Capitalization Of The Nile, Arthur M. Ortegon

Arthur M. Ortegon

No abstract provided.

Re-Examining Natural Resource Damages Under Cercla: Failures, Lessons Learned, And Alternatives, Patrick E. Tolan

Patrick E. Tolan Jr.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposed widespread liability on responsible parties to clean up hazardous releases. In addition to cleanup liability, Congress also included important natural resource damages (NRD) provisions in CERCLA, to restore natural resources that had been injured or destroyed due to a release of hazardous substances.

This article examines lessons learned from NRD litigation to date to explain why a tool with so much potential to benefit the environment has remained underutilized. It also explores the bigger picture, including May, 2007, federal advisory committee proposals to make Natural Resource Damage Assessment …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

Making The Sale On Contingent Valuation, Sameer H. Doshi

Sameer H Doshi

Scholarship and jurisprudence have not seriously considered the question of whether the contingent valuation (CV) technique of monetizing preferences for non-tradeable public goods is consistent with the Daubert standards for scientific evidence. The greatest difficulty is in establishing that CV is testable and has measurable error rates; this problem is consonant with criticisms that economists have leveled at the CV method more generally. Additionally, the “state of the art” of contingent valuation practice has recommended the use of the willingness-to-pay question format for CV, rather than willingness-to-accept. This is misplaced in many cases, particularly in calculating damages in environmental tort …

Litigating Canada-U.S. Transboundary Pollution: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Shi-Ling Hsu, Austen Parrish

Shi-Ling Hsu

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

The Benchmark Of Expectations: Regulatory Takings And Surface Coal Mining, Darren Botello-Samson

Darren Botello-Samson

In 2006, the United States Court of Federal Claims issued a decision in BENCHMARK RESOURCES CORPORATION v. UNITED STATES, a case involving a regulatory takings challenge to enforcement of the Surface Mining Control and Reclamation Act (SMCRA), a federal law regulating the environmental effects of surface coal mining. Such cases are not rare, as the Claims Court has visited this question on a number of occasions. The ruling in BENCHMARK did not depart from the federal judiciary's doctrine on SMCRA takings cases. The ruling is worth noting, however, for the ways in which it highlights the key aspects of a …

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig

Robin K. Craig

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …

Depletion-Safe Tuna: Has The Unclos Tribunal Usurped Its Members’ Democracy?, Etan M. Basseri

Etan M Basseri

In 1999 the International Tribunal for the Law of the Sea heard a complaint of fishing violations, with Australia and New Zealand alleging that Japan had exploited the delicate southern bluefin tuna fisheries in violation of the United Nations Convention on the Law of the Sea. Japan responded, and eventually prevailed, with the argument that the dispute was governed by a separate multilateral treaty concerning the tuna species. The issue of jurisdiction was a major issue in the case.

This paper argues that the Tribunal’s formation and operation was and is consistent with democracy. It applies four different critiques of …

Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Land-Use Controls, Jonathan H. Adler

Jonathan H Adler

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is “underpriced” as compared to other environmental protection measures for which government agencies must pay. This results in the “overconsumption” of land-use regulations relative to other environmental protection measures that could be …

Virtual Consumption: A Second Life For Earth?, Albert C. Lin

Albert C Lin

Consumption is at the root of many of the world’s greatest environmental challenges, yet laws or policies that directly address consumption are rare. Virtual worlds such as Second Life offer the intriguing prospect of displacing a substantial amount of real-world consumption without running afoul of the political and economic obstacles that proposals to reduce consumption often face. In the interactive online reality of virtual worlds, players adopt an “avatar” and participate in an electronic world that mirrors the real world in striking ways. As this Article explains, virtual worlds offer opportunities, experiences, and pleasures that satisfy many of the basic …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

All Sprawled Out: How The Federal Regulatory System Has Driven Unsustainable Growth, Chad Emerson

Chad Emerson

No abstract provided.

How Environmentalism Changed Urban Planning: English Green Belts To Washington Wetlands, Simma M. Asher

Simma M. Asher

Urban planning preserves green space to achieve three primary goals: to enhance quality of life, to encourage rural-based industries, and to protect the environment. The environmental goal is unique among those because it seeks to protect natural areas from human interference rather than shaping them to serve particular community purposes, such as to form a city boundary or build a farm or park. This paper examines how the addition of the environmental goal to urban planning conservation programs alters their structures. It compares an urban planning regime established before the environmental movement with a recent, environmentally oriented program and finds …

Science Before Law: American Exceptionalism In The Kyoto Protocol And The Development Of A Global Norm Of Environmental Compliance, Elizabeth L. Chalecki

Elizabeth L Chalecki

This article will argue that a new norm of compliance with agreements is becoming customary with regard to the global environmental commons, particularly in the case of climate change and U.S. behavior towards the Kyoto Protocol. While the United States’ repudiation of its signature on the Protocol in 2001 was legal under the practice of traditional international law, this same practice is no longer sufficient in scope or in time to keep pace with the rapid advances in our scientific understanding of global environmental processes. Because every member of the international community can suffer significant harm from climate change, the …

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

The Evolving Role Of Citizens In United States-Canadian International Environmental Law Compliance, Noah D. Hall

Noah D Hall

Citizen participation is critical in environmental law compliance. While citizens often have a major role in advancing compliance with domestic environmental law, citizens have historically had a much more limited role in international environmental law. However, a new model is emerging North America. The role of citizens in United States-Canadian international environmental law compliance has expanded greatly over the past several decades. Beginning in the 1970’s with increased public participation in binational governance agreements and expanding in the past two decades to formal roles in monitoring implementation of international environmental agreements, citizen participation is now central in the United States-Canadian …

Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall

Noah D Hall

Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal …

Creating An Emissions Trading System For Greenhouse Gases: Recommendations To The California Air Resources Board, Justin Kirk

Justin Kirk

This past September, California Governor Arnold Schwarzenegger signed into law the California Global Warming Solutions Act of 2006, which directs the state’s Air Resources Board to adopt regulations to reduce the state’s total greenhouse gas emissions to 1990 levels by 2020. My comment argues that due to an executive order signed by the governor, the Board must necessarily adopt a cap-and-trade system as part of its regulations. The success of any cap-and-trade system, however, depends upon a series of design choices. Thus, my comment analyzes several other cap-and-trade systems to glean relevant lessons for the design of California’s system, and …

Preventive Economic Development Strategy, Milan Meszaros

Milan Meszaros physicist

In the present paper it is shown that the development of industry based on the monetary economy and the real protection of the environment contradicts to each other, antagonistically. Furthermore, the handling and immanent solution of the contradiction points to the direction of a new development path which is called the Preventive Economic-Development Strategy (PEDS). Finally, this new path means the real unison of the industrialization and protection of the environment, as well as, a fundamental -but not sustainable or other discreditable etc.- transformation of the industrial development and consumer society within the frame of monetary economy.

“Paper Battle On The River Uruguay; The International Dispute Surrounding The Construction Of Pulp Mills On The River Uruguay”, Maria A. Del-Cerro

Maria A del-Cerro

Abstract This Comment explores the legality of the Uruguayan government’s decision to approve the construction of two pulp mill plants on the River Uruguay, and examines the related litigation currently pending before the International Court of Justice, “ICJ”. A review of international watercourse law assists in deciphering the parties’ substantive and procedural obligations under the 1975 Statute of the River Uruguay. The comment argues that Uruguay has fulfilled these obligations, while Argentina has not. The piece recommends that the ICJ resolve the dispute in favor of Uruguay, and adopt a more precise standard for determining when a state has complied …

American Cities, Urban Planning, And Place Based Crime Prevetion, Edward H. Ziegler

Edward H Ziegler

Nearly a generation after Oscar Newman first wrote about the issues of place-based crime prevention and defensible space, cities large and small throughout the world are showing interest in what is now generally known as the field of “Crime Prevention Through Environmental Design.” In the United States and elsewhere throughout the world, preventing crime and reducing the fear of crime continue to be high priorities of citizens and city officials. Place-based crime prevention techniques are increasingly viewed as important urban planning tools to enhance the physical safety of citizens and to protect the public and private economic investment in new …

The Rehnquist Court And The Pollution Control Cases: Anti-Environmental And Pro-Business?, Mark A. Latham

Mark A. Latham

In this Article I address whether the assertions made by a number of commentators criticizing the Rehnquist Court as a pro-business and anti-environmental Court are accurate. To answer this question, I specifically focus on the cases arising under the so-called “pollution control” statutes during the tenure of William H. Rehnquist as Chief Justice. The pollution control statutes collectively regulate a wide spectrum of businesses and industries, and an analysis of the cases arising under these statutes should, consequently, reflect the bias that is claimed to have existed in the Court’s environmental jurisprudence under the leadership of Chief Justice Rehnquist. Contrary …

High Speed Rail Transit: Developing The Case For Alternative Transportation Schemes In The Context Of Innovative And Sustainable Global Transportation Law And Policy , Kamaal Zaidi

Kamaal Zaidi

This paper examines high-speed rail transit in the context of global transportation law and policy. Given increasing traffic congestion and rising pollution from existing forms of transportation, the author argues that high-speed rail transit is gaining popularity, and is quickly becoming a part of the transportation sector in several nations. The rise of this form of alternative has much to do with a strong commitment from legislators, and from growing partnerships between public and private entities. This commitment comes in the form of funding mechanisms, technological research and development, and application of environmental measures designed to reduce the impact of …

A Pedestrian Transit Mall On Peachtree? How History, Policy, And Legislation Can Recreate A Proud Town, Collin R. Glidewell

Collin R Glidewell

This paper seeks to provide one solution to Atlanta's auto-oriented development problem. With its history as a streetcar town as inspiration, by shutting down a portion of Peachtree Street to cars and making it a transit-only thoroughfare, Atlanta can form a model for the South of dense retail and residential development. Using Denver's 16th Street Mall as a starting point, this paper looks at the legislative and regulatory hurdles the project would encounter. Hopefully, other cities in the U.S. could explore the viability of a similar project.