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Articles 1 - 30 of 53
Full-Text Articles in Law
Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau
Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau
Ocean and Coastal Law Journal
This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism.
Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards
Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards
Ocean and Coastal Law Journal
Energy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals.
30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew
30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew
Ocean and Coastal Law Journal
In the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill.
Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay
Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay
Maine Law Review
For over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many …
Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom
Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom
Maine Law Review
Global climate change and its attendant impacts threaten to change life on Earth as we know it. The sea level rise that comes with rising temperatures is an issue of particular importance to coastal states like Maine. Thankfully, continued investment in renewable energy technology is beginning to make certain renewable energy sources competitive with their nonrenewable counterparts. This Comment highlights wind energy as a particularly effective option for meeting Maine’s energy needs while significantly reducing the harmful greenhouse gas emissions that contribute to climate change. Despite its many benefits, wind energy technology still has its detractors. Wind energy projects (especially …
Governance Of Ocean-Based Carbon Dioxide Removal Research Under The United Nations Conventions On The Law Of The Sea, Wil Burns
Maine Law Review
There has been a spate of research in recent years indicating that achievement of the temperature objectives of the Paris Agreement can only be effectuated through both aggressive decarbonization of the global economy and large-scale deployment of so-called carbon dioxide removal (CDR) approaches. While much of the early focus of CDR research was on terrestrial options, such as afforestation, direct air capture, and bioenergy with carbon capture and storage, more recently, many in the scientific and policy community have increasingly focused on potential ocean-based approaches, including ocean fertilization, ocean alkalinity enhancement, macroalgae harvesting, and ocean upwelling and downwelling. However, while …
Private Environmental Nudges, Anthony Moffa
Private Environmental Nudges, Anthony Moffa
Faculty Publications
Environmentalist outcry against single-use plastics has rapidly translated into municipal and state policy. Bans and taxes on plastic bags, and, to a lesser extent, polices targeting plastic food/drink containers and plastic straws, have popped up all over the country. Many large national corporations, including Starbucks, Disney, and Hyatt to name a few, have also taken steps to reduce the amount of single-use plastics that their customers add to the waste stream.
Two ongoing discussions in the environmental law scholarship parallel these innovations in policy. The first re-examines the proper role for subnational governments in environmental policymaking, reviving a debate about …
Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa
Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa
Faculty Publications
This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of …
Rising To The Challenge: Managed Retreat And The Taking Clause In Maine's Climate Change Era, Maye C. Emlein
Rising To The Challenge: Managed Retreat And The Taking Clause In Maine's Climate Change Era, Maye C. Emlein
Maine Law Review
It is a near scientific certainty that sea levels will rise between one and eight feet by the end of the century. This will wreak havoc on our infrastructure, ecology, and public health, and cause an unquantifiable amount of economic damage. Given the inevitability of sea level rise, state and local governments must facilitate the managed retreat of people and property away from vulnerable coastal areas. However, governments’ ability to facilitate managed retreat comes head-to-head with the Takings Clauses of the United States and Maine Constitutions, which state that the government may not take private property without paying just compensation. …
Strength In Numbers (Of Words): Empirical Analysis Of Preambles And Public Comments, Anthony L. Moffa
Strength In Numbers (Of Words): Empirical Analysis Of Preambles And Public Comments, Anthony L. Moffa
Faculty Publications
The empirical observation of a four-decades-long trend towards longer and longer federal agency rulemakings laid the foundation for this series of studies and associated law review articles. The second in that series, this work will add necessary data, test important hypotheses, and draw new conclusions to guide policymakers. Any serious observer of the Federal Register recognizes that different sections of a rulemaking serve different purposes. And agencies have historically utilized one section in particular to insulate their rules from judicial vacation or remand – the “concise general statement of basis and purpose.” Thus, this new study will collect and analyze …
Environmental Indifference, Anthony L. Moffa
Environmental Indifference, Anthony L. Moffa
Faculty Publications
An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Maine Law Review
In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Maine Law Review
In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …
The Limited Power Of Federal Bankruptcy Courts To Stay Enforcement Of State Environmental Regulations, David A. Brenningmeyer
The Limited Power Of Federal Bankruptcy Courts To Stay Enforcement Of State Environmental Regulations, David A. Brenningmeyer
Maine Law Review
Over the course of the past few decades, public awareness of privately created environmental hazards has risen. As a result, state and federal legislatures have been moved to enact comprehensive environmental laws that serve both to remedy past harms and to prevent future ones. Today, environmental statutes seek to correct and prevent public health hazards as diverse as groundwater contamination, toxic waste disposal, soil contamination, destruction of native plant and animal habitats, and air pollution, to name but a few. In addition, state and federal courts have permitted the invocation of common law theories, such as nuisance and trespass, to …
Who Takes A Dam: Regulatory Confusion And Surging Opportunities For Small Dam Removal In Rural Maine, Grady R. Burns
Who Takes A Dam: Regulatory Confusion And Surging Opportunities For Small Dam Removal In Rural Maine, Grady R. Burns
Maine Law Review
This Comment examines the regulatory regimes surrounding the removal of state-regulated small dams in Maine by comparing the relatively underdeveloped regime in Maine with the much more coherent and robust regime in neighboring New Hampshire. When compared to more deliberate regimes, Maine’s system lacks key features, including a streamlined permitting program and a single clearinghouse for information, resources, and regulatory enforcement. Given the significant opportunities afforded by a coherent regulatory small dam removal regime, this Comment recommends that Maine follow the example of other states by creating a river restoration and dam removal program, re-establishing its statewide dam inventory, creating …
Conservation, Regionality, And The Farm Bill, Jess R. Phelps
Conservation, Regionality, And The Farm Bill, Jess R. Phelps
Maine Law Review
Over the past several Farm Bills, there has been a somewhat subtle shift in program design to better incorporate regional perspectives/localized areas of conservation concern into national conservation program delivery. The purpose of this Article is to specifically explore the various roles that regional considerations play in existing Farm Bill conservation programs and also consider whether further developments in this direction could result in more flexible program delivery, more effective partnerships, and ultimately, better conservation outcomes. To this end, section II will provide an overview of the history of the Farm Bill, from its origins to the emergence of a …
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Ocean and Coastal Law Journal
The ocean offers what may seem like endless supply of natural resources, ecosystem services, or for some, simple enjoyment. Yet, in the face of climate change and overexploitation, many of these unique ecosystems and their inhabitants face an uphill battle. A president's use of the Antiquities Act establishing a national monument is an efficient and effective method of protecting these diverse ecosystems, as long as the area to be protected satisfies one of the Act's limitations that the monument be "situated on land owned or controlled by the federal government." Prior to a 2017 lawsuit concerning President Obama's use of …
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Ocean and Coastal Law Journal
In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …
The Role Of State Planning Law In The Regulation And Protection Of Ocean Resources, Edward J. Sullivan
The Role Of State Planning Law In The Regulation And Protection Of Ocean Resources, Edward J. Sullivan
Ocean and Coastal Law Journal
While land use planning is pervasive in the United States, legal structures for the planning and management of ocean resources are less well known or studied. The passage of the federal Coastal Zone Management Act in 1972 provided federal funds for state planning and regulation of coastal areas, with the incentive of binding federal agencies to state and regulations plans certified by the Secretary of Commerce. Most of the focus of CZMA study has been on estuaries and coastal shorelands; much less focus has been on coastal waters. Regarding coastal waters, more attention is given to the three mile ocean …
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Ocean and Coastal Law Journal
This article offers perspective on how Alaska Native Villages (ANVs), which are small and rural indigenous communities, are adapting to changes in flooding and erosion. It considers which adaptations might be maladaptations and what might be done to facilitate adaptation short of relocating entire communities. It outlines the United States' legal framework applicable to flooding and erosion and considers why this framework may do little to assist ANVs and similarly situated small and rural communities. Findings regarding adaptation strategies and obstacles are drawn from my Ph.D. research, which involved a review of plans for fifty nine ANVs and 153 interviews …
The Brave New World Of Energy And Natural Resources Development, Donald N. Zillman
The Brave New World Of Energy And Natural Resources Development, Donald N. Zillman
Faculty Publications
The world of energy and natural resources development has changed a great deal over the past 30 months, perhaps more so than in the preceding 30 years. Beginning with the June 2016 vote in the United Kingdom to leave the European Union and continuing through today, there are global signs of increasing emphasis on protecting national sovereignty and less on world efforts to address major environmental and energy issues. Admittedly, the United Nations-based effort to reduce greenhouse gas emissions continues to move forward. However, more than a few nations are hinting that they may not live up to their commitments …
Advancing The Aquaculture Industry Through The Federal Crop Insurance Program, Matthew H. Bowen
Advancing The Aquaculture Industry Through The Federal Crop Insurance Program, Matthew H. Bowen
Ocean and Coastal Law Journal
In recent times, the aquaculture industry has experienced dramatic growth. The growth of the industry is a direct result of an increase in demand for seafood, and a decrease in supply from wild fisheries. The industry, however, is also experiencing growing pains. Aquaculture species, compared to their wild counterparts, are at a higher risk of catastrophic loss from a variety of different perils. These perils make investment in the aquaculture industry significantly risky. The federal crop insurance program could be a tool that mitigates these risks, but the program was designed around terrestrial agriculture, and while aquaculture may be covered …
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Ocean and Coastal Law Journal
Using a legal history methodology, this paper examines existing marine renewable energy law and policy in Nova Scotia with a focus on its application in the Bay of Fundy. This paper critically assesses the current approach to coastal management in light of recent recommendations summarized in the Fournier report. This paper argues that, despite clear calls to develop integrated ocean management and marine spatial planning in policies and regulations, Canada and Nova Scotia have failed to do so because of unclear federal-provincial boundaries. Ambiguous domestic borders in the Bay of Fundy have been at the source of an overly cautious, …
Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa
Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa
Faculty Publications
Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …
Uniform Climate Control, Anthony Moffa
Uniform Climate Control, Anthony Moffa
Faculty Publications
In Washington, D.C., the “Green New Deal” may be nothing more than a symbolic, Twitter-friendly legislative campaign with no real hope of adoption. But in New York, it is the new legal reality. The efforts of sub-national governments - like New York’s - to tackle widespread environmental harms, in particular climate change, have drawn increased media and scholarly attention since the United States declared its intention to withdraw from the Paris Agreement. In truth, the trend towards so-called “environmental federalism” predates the election of President Donald J. Trump. We are ushering in the next generation of environmental laws, and those …
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
Faculty Publications
Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation …
Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer
Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer
Maine Law Review
Marine mammals and commercial fishermen come into direct conflict when marine mammals become entangled in commercial fishing nets. Since marine mammals must come up to the water surface in order to breathe, they will die if they cannot break free of an underwater net. This conflict is exemplified by the plight of the harbor porpoise in the Gulf of Maine. The federal regulatory framework that attempts to balance the competing interests of commercial fishermen and marine mammals is currently in flux, and its final form may determine the fate of species like the harbor porpoise. This Comment will examine the …
Love Of Landfill: Trashing The Maine Constitution To Solve A Garbage Problem, Donald Maurice Kreis
Love Of Landfill: Trashing The Maine Constitution To Solve A Garbage Problem, Donald Maurice Kreis
Maine Law Review
The human family is engaged in a noble struggle against the law of entropy, seeking to turn back or at least retard the inexorable process by which all matter in the known universe passes from useful to useless form. The political and legal system generally refers to useless matter as solid waste; in Maine the Legislature has chosen to wage this struggle against entropy and discourage production of entropical by-products through the enactment of the state's first comprehensive waste management law, "An Act to Promote Reduction, Recycling and Integrated Management of Solid Waste and Sound Environmental Regulation" (hereinafter "the Act"). …
Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith
Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith
Maine Law Review
Environmental issues have transformed the areas of law that I have taught for the last thirty-one years. A decade ago environmental law went virtually unmentioned in courses in property, domestic oil and gas law, and international transactions. By 1995 environmental concerns had moved from the periphery to center stage in these legal fields. To someone who teaches and writes about these subjects, the clearest manifestation of this development has been that virtually every first-year property casebook, mining or oil and gas law casebook, and international business transactions casebook, written in the last five years now includes segments on environmental law. …
Environmens Rea, Anthony Moffa
Environmens Rea, Anthony Moffa
Faculty Publications
Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …