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Full-Text Articles in Law
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 …
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 …
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 …
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 …
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 …
Environmental Injustice And The Problem Of The Law, Uma Outka
Environmental Injustice And The Problem Of The Law, Uma Outka
Maine Law Review
Over the past fifteen years, legal academia has produced a sizeable body of scholarship on the widely acknowledged problem of environmental injustice. Although there have been positive responses in the policy arena, no similar level of concern is evident in the courts. Most legal claims directly addressing environmental injustice fail, recent developments in civil rights case law are discouraging, and current constructions of environmental laws are proving theoretically inadequate to protect communities already subjected to disproportionate toxic exposure or threatened by new pollution. This Comment explores the state of the law of environmental justice and offers an analysis of why …
A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins
Maine Law Review
Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source,” it fails to …
Traditional Ecological Rulemaking, Anthony Moffa
Traditional Ecological Rulemaking, Anthony Moffa
Faculty Publications
This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill …