Law Commons^™

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

The Public Trust Doctrine, Private Water Allocation, And Mono Lake: The Historic Saga Of National Audubon Society V. Superior Ct., Erin Ryan

Erin Ryan

This article tells the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan

Breaking Ground On The New Green Deal, Erin Ryan

Erin Ryan

This op-ed urges reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy.

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Erin Ryan

As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …

New Orleans, The Chesapeake, And The Future Of Environmental Assessment: Overcoming The Natural Resources Law Of Unintended Consequences, Erin Ryan

Erin Ryan

This piece tells the tale of two disappearing wetlands—those surrounding Louisiana's Gulf Coast and those fringing the Chesapeake Bay—each providing new insight into the old quandary of unintended consequences that lies at the center of natural resource management. Louisiana's losses follow three hundred years of natural resource engineering to accomplish effective flood control along the Mississippi River, while the Chesapeake losses follow implementation of among the most meticulous wetlands-protection programs of its time. And yet, New Orleans suffered a catastrophic flood, and Chesapeake wetlands continue to disappear. How could this happen? Call it the “Natural Resources Law of Unintended Consequences.” …

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …

Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan

Erin Ryan

This essay reviews the theoretical underpinnings of the public trust doctrine, received at common law and constitutionalized in many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the ancient common law doctrine as a vehicle for environmental advocacy in the early 1970s, it has been hailed by many environmentalists as the most powerful tool available for protecting natural resource commons. At the same time, however, it has been attacked by others who argue that use of the property rights-based doctrine reifies an ownership approach to natural resources and obstructs the development of …