Law Commons^™

The Erosion Of Federal Common Law: Anticipatory Delegation In American Electric Power Company V. Connecticut, Paul Z. Winters

Paul Z Winters

In this year’s Supreme Court decision American Electric Power v. Connecticut, the Clean Air Act was held to preempt the federal common law of nuisance in a claim concerning harm resulting from greenhouse gas emissions. The Court’s decision resulted in an unprecedented incursion onto the territory of federal common law. Though the EPA had not begun to promulgate rules for greenhouse gas reduction from stationary sources, the Supreme Court minted a new doctrine: anticipatory delegation, and held that the federal common law of nuisance had been preempted. The Court's holding leaves future environmental plaintiffs with little hope of redress where …

Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling

Jonathan Stribling

This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

Timber Piracy, Statutory Interpretation, And Legislative Intent: The Louisiana Supreme Court’S Decision In Sullivan V. Wallace, Mirais Holden

Mirais Holden

The Louisiana legislature imposes punitive treble damages on timber pirates, those who cut or remove timber from land belonging to another. For many years in Louisiana, it was unclear whether those same treble penalties applied to co-owners of land who sell timber of which they only own a part, without the consent of their fellow co-owners, in a blatant attempt to steal the full profit for themselves. In a historical circuit split, one Louisiana circuit held that the treble damage statute did apply to timber-pirating co-owners, while another Louisiana circuit held that it did not. The author of this case …

Prospects For ‘Cooperation V. Dispute’ Over Water In The Middle East, Yaser Yousef Khalaileh

yaser yousef khalaileh

This paper addresses the prospects of the applicability of Watercourse international regime to achieve cooperation in the Middle East region. In so doing, an assessment of the environmental status of the water medium in the Middle East, and the main reasons for its deterioration, is to be made; an illustration of the basic international law rules that are specifically related to the use of international watercourses is to be deciphered; the extent of protection afforded to this medium under international law is then analysed; and an attempt to discuss the available possibility for applying international laws related to watercourse to …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

A Sticky Situation: Tar Sands, Alternative Fuels, Energy Security And The Eisa Section 526 Petroleum Procurement Problem, Surya Gablin Gunasekara

Surya Gablin Gunasekara

The Department of Defense (DOD) is one of the world’s single largest consumers of energy. To support two wars in hostile parts of the world, the DOD’s energy procuring agency, the Defense Logistics Agency Energy (DLA Energy), has been forced into the difficult position of doing business with sheikdoms and petro-dictatorships. This dependence on foreign oil, and the critical need for energy security, has prompted several legislative initiatives aimed at promoting renewable energy and alternative fuels. While much of this legislation has been transformative for DOD energy policy, one provision, in application, has complicated the petroleum procurement process. This article …

Crude Decisions: Re-Examining Degrees Of Negligence In The Context Of The Bp Oil Spill, Blaine Lecesne

Blaine LeCesne

CRUDE DECISIONS: RE-EXAMINING DEGREES OF NEGLIGENCE IN THE

CONTEXT OF THE BP OIL SPILL

Blaine LeCesne

Abstract

The blowout of the Macondo well caused the worst environmental disaster in history and the ensuing high-stakes litigation is the largest ever mass tort case. The pivotal issue in the case is whether this cataclysmic event was caused by the “gross negligence” or “willful misconduct” of the responsible parties. Such a determination could result in exponentially increased compensatory and punitive damages, augmented environmental sanctions and potential criminal liability. These heightened degrees of fault are frequently used in regulatory statutes, like the Clean Water …

Skewed Incentives: How Offshore Drilling Policies Fail To Induce Innovation To Reduce Social And Environmental Costs, Gaia J. Larsen

Gaia Larsen Esq.

The accident at the Deepwater Horizon platform in the Gulf of Mexico in April of 2010 showed the potentially catastrophic damage associated with offshore oil drilling. It also highlighted both the technological advances that have made drilling in deeper and more dangerous waters feasible and affordable, and the lack of similar advances in technology to prevent harm resulting from such drilling. In light of that disaster and current debate over offshore oil drilling, this article looks at the failure of current policies to adequately incentivize investment in innovation to reduce the environmental and social costs associated with offshore drilling. It …

Regulatory Analysis And Response To Potential Coal Seam Gas Groundwater Contamination In Queensland Australia, Barrie Hansen Jd (Hons)

Barrie Hansen JD (Hons), LLM

The coal seam gas (coalbed methane) industry in Australia is practically in its infancy, but major development is expected to occur over the next 40 years. Australia, as the most arid continent in the world, has a duty to manage the potential groundwater issues better than has been done in other countries where the coal seam gas industry has been flourishing for many years. This article attempts to provide a brief overview of some of the issues, along with suggestions for a regulatory response, or further study.

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

The Rise Of U.S. Food Sustainability Litigation, Stephanie Tai

Stephanie Tai

This article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation—challenges to CAFOs and challenges to the use of genetically modified organisms (GMOs) in the food system—chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.

The article begins by describing the sustainable food movement, including how the movement fits in with factors that sociologists use to characterize social movements, as well …

Setting The Foundation: How Local Climate Change Adaptation Initiatives Can Pave The Way For A Regulatory Regime That Works, Thomas M. Gremillion

Thomas M Gremillion

Climate change is here and with it a growing awareness of the need to adapt to impacts that are already occurring. At the same time, efforts to establish an international regulatory program to reduce or mitigate greenhouse gas (GHG) emissions have all but collapsed. This article argues that climate change adaptation at the local level, particularly in urban areas, represents a logical step forward. In addition to managing risk, adaptation can stimulate a needed shift in emphasis towards a more pluralist or polycentric approach to climate regulation, laying the groundwork for future national and global regulatory regimes. Examining some of …

Milking It: Reconsidering The Fda’S Refusal To Require Labeling Of Dairy Products Produced From Rbst Treated Cows In Light Of International Dairy Foods Association V. Boggs, Laurie J. Beyranevand

Laurie J Beyranevand

The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs found that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, …

Integrated Eastern States Water Management: Borrowing From The Coastal Zone Management Act, Robert H. Abrams

Robert H Abrams

More robust planning and management is needed to confront new patterns of water use and increasingly extreme and less predictable variations in water availability. Items such as water allocation law, an incomplete array of water management objectives, and the comparatively rigid operating rules for water facilities, that in the past had barely mattered, are now much more important. Neither the water law of most Eastern states nor the existing water institutions are adequate to the needs of a less stable, and possibly shorter, water supply. The failure of adaptation has the potential to cause serious economic and environmental harm if …

When The Law Is Silent, Trespassers W… : Law And Power In Implied Property Rights, Ann Brower

Ann Brower

In the daftly magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power and politics. In this paper we combine interest group politics, political ecology, property theory, and narrative assertion to propose a theory of implied property rights – how they work, whom they benefit, and when and why …

Rising Together: Clarifying The International Environmental Marketing Claim Regulatory Landscape So That Developing Country Exporters May More Effectively Market Their Environmentally Responsible Products, Jeffrey J. Minneti

Jeffrey J Minneti

This article focuses attention on national and international state and non-state actor environmental marketing claim criteria setting bodies to assess whether and to what extent the actors consider developing country interests in their schemes. Finding that many firm-specific and industry-specific non-state actors fail to offer any consideration of developing country interests in their standardization and certification schemes, likely because they lack any legal obligation to do, the article suggestes two clarifications to the World Trade Organization’s Agreement on Technical Barriers to Trade (TBT), that will at least incentivize non-state actors to integrate developing country interests into their schemes. First, the …

Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa

Christopher Ralph Brown JD MPA

Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

Expert Testimony: Groundwater Modeling Reliability, Brent Smith

Brent Smith

A presumption of helpfulness surrounds the term “expert”. For this reason, courts grant testimonial latitude to expert testimony that is normally unavailable to other witnesses. This is justified on the presumption that the expert's opinion rests upon a reliable basis in the knowledge and experience of his discipline. However, what happens when such testimony involves a area of science that is in of itself guesswork at times?

Defendants Win "Round One" Of Climate Change Litigation In United States Supreme Court, Richard O. Faulk, John S. Gray

Richard Faulk

In American Electric Power Co. v. Connecticut (“AEP”), the United States Supreme Court held that federal common law public nuisance claims seeking injunctive relief against emitters of greenhouse gases (“GHG”) were displaced by the Clean Air Act (“CAA”) and EPA’s regulatory implementation of the Act’s provisions. In hindsight, this holding seems an inevitable outgrowth of Massachusetts v. EPA, 549 U.S. 497 (2007), which held that GHGs are pollutants subject to CAA regulation. Building on that precedent in a unanimous 8-0 opinion, the AEP Court gave the defendant utility companies a clear-cut victory by precluding judicial direct regulation of GHG through …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

A Global E-Commerce Tax To Fund Global Public Goods, Rifat Azam Dr.

Rifat Azam Dr.

A Global E-commerce Tax to Fund Global Public Goods Rifat Azam

Abstract

This article argues for the imposition of a “global e-commerce tax” on global e-commerce income for funding global public goods. The idea is to create an international body (the "global fund"), to vest it with the authority to impose global tax on global e-commerce income, and to use the tax revenues to fund global public goods. I wish to stress that the model rests on two pillars: global taxation and global spending. The article presents, for the first time, an outline for a concrete design and structure of …

Signs, Signs, Everywhere Signs: How The Wilderness Society V. Kane County Leaves Everyone Confused About Navigating A Right-Of-Way Claim Under Revised Statute 2477, Hillary M. Hoffmann

Hillary M Hoffmann

The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that …

How Lawsuits Could Ignite An Energy Market: The Case Of Anaerobic Digestion, Catherine Keske

Catherine Keske

This article focuses on anaerobic digestion—a technology that converts biomass into methane that can be captured and used as biogas, or that can be converted into electricity through a generator. The biogas and electricity can be used at the facility where the biomass is collected, or the electricity could be sold to the grid if net metering policies are available. Currently, anaerobic digestion is not feasible in many areas of the nation, including the U.S. West, where energy prices are relatively low. This article demonstrates how anaerobic digestion can help agricultural operations avoid the costs associated with a nuisance lawsuit. …

International Water Law: Reasonable Utilization, Margaret J. Vick

Margaret J Vick

Reasonable utilization of shared waters is a centuries old principle of riparian law. It is one half of the foundational principle of international water law that requires the equitable and reasonable utilization of international waters. The principle of equitable utilization is extensively developed through treaties, conventions, case law and the writings of scholars of the law of non-navigational uses of international watercourses. However, the principle of reasonable utilization has received little attention. This article examines the relationship and commonalities between riparian reasonable use and the principle of international law and traces the inclusion of the requirement of reasonable utilization in …

Ocean Governance For The 21st Century: Making Marine Zoning Climate Change Adaptable, Robin K. Craig

Robin K. Craig

The variety of anthropogenic stressors to the marine environment—including, increasingly, climate change—and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.

This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it …

The Need For More Stringent Regulation Of Biodiesel Fuel In California, Steven Goodman

Steven Goodman

Bioidiesel is an alternative fuel made from sources other than petroleum that can be used in diesel engines. It is a rapidly growing part of the fuels consumed in both California and the United States, and this consumption will continue to increase over time. This increased consumption warrants a greater focus on this fuel and the consequences of its use. Scientific evidence has established that biodiesel is not the clean, “green” fuel that some have purported it to be. Studies have found that biodiesel fuel causes increased nitrogen oxide (NOx) emission levels, resulting in higher levels of ozone and particulate …

Promoting Clean Energy In The American Power Sector: A Proposal For A National Clean Energy Standard, Joseph E. Aldy

Joseph E Aldy

The difficulty of coming to agreement on comprehensive energy and climate change legislation highlights the need for a more targeted and incremental approach. One promising intermediate step would be a technology-neutral national clean energy standard for the power sector. I propose a standard that would lower carbon dioxide emissions by as much as 60 percent relative to 2005 levels over twenty years, streamline the fragmented regulatory system, generate fiscal benefits, and finance energy innovation. Through a simple design and transparent implementation, the national clean energy standard would provide certainty about the economic returns to clean energy that would facilitate investment …