Law Commons^™

Hyperlegality And Heightened Surveillance: The Case Of Threatened Species Lists, Irus Braverman

Journal Articles

My contribution to the Debate "Thinking about Law and Surveillance" focuses on the project of governing nonhuman species through care, briefly pointing to how law and surveillance are interwoven in this context and to how conservation's biopolitical regimes are increasingly becoming more abstract, standardized, calculable, and algorithmic in scope. I argue that conservation’s focus on governing through care lends itself to heightened modes of surveillance and to hyperlegality - namely, to the intensified inspection and regulation of both governed and governing actors. I start with some preliminary explanations about my atypical use of the terms surveillance, law, and biopolitics.

Conservation And Hunting: Till Death Do They Part? A Legal Ethnography Of Deer Management, Irus Braverman

Journal Articles

Claims that hunters are exemplar conservationists would likely come as a surprise to many. Hunters, after all, kill animals. Isn’t there a better way to appreciate wildlife than to kill and consume it? Yet there is no mistake: wildlife managers frequently make the claim that hunters, in the United States at least, are in fact some of the greatest conservationists. This article explores the complex historical and contemporary entanglements between hunting and wildlife conservation in the United States from a regulatory perspective. Such entanglements are multifaceted: hunting provides substantial financial support for conservation and hunters are the state’s primary tools …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Journal Articles

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

Isolated Wetland Commons And The Constitution, Blake Hudson, Michael Hardig

Journal Articles

Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This Article makes a normative argument that, in the absence of state or local programs providing holistic isolated wetland protection, federal action is needed. The …

Keeping Track Of Conservation, Jessica Owley

Journal Articles

Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. …

How National Park Law Really Works, John Copeland Nagle

Journal Articles

This article provides the first explanation of the relationship between the three overlapping sources of national park law. It first explains how the Organic Act affords the National Park Service substantial discretion to manage the national parks, including deciding the proper balance between enjoyment and conservation in particular instances. It next shows how federal environmental statutes push national park management toward preservation rather than enjoyment. Third, Congress often intervenes to mandate particular management outcomes at individual parks, typically but not always toward enjoyment rather than preservation. The result is that the NPS has substantial discretion to manage national parks in …

Adapting Conservation Easements To Climate Change, Adena R. Rissman, Jessica Owley, M. Rebecca Shaw, Barton H. Thompson Jr.

Journal Articles

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. Although only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent terms on private lands. CEs often have multiple, potentially conflicting purposes that protect against …

Preservation Is A Flawed Mitigation Strategy, Jessica Owley

Journal Articles

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …

A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon M. Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs

Journal Articles

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

The Environmentalist Attack On Environmental Law, John Copeland Nagle

Journal Articles

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law …

Wilderness Exceptions, John Copeland Nagle

Journal Articles

This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a …

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Journal Articles

Environmental law is riddled with symbolisms of protecting the air we breathe, the water we drink, and the environment in which we live. Sometimes these symbols are simply inherent characteristics of the legislation or policy as their very creation symbolizes or represents the politico’s stance on an issue. Other times, the legislation or policy is used primarily as a symbol, without ever addressing the issue or effectuating change, sometimes referred to as symbolic politics. In this research, we apply the theory of symbolic politics to New York State’s decade-old policy on environmental justice and postulate that although the policy has …

Mitigating The Impacts Of The Renewable Energy Gold Rush, Amy Wilson Morris, Jessica Owley

Journal Articles

Solar energy developers have turned their sights on California’s deserts. Since 2010, local, state, and federal agencies have approved nearly 9,000 megawatts (MW) of solar energy projects in the California desert, including more than 3,000 MW on public lands. The 9,000 MW of approved projects (if all are developed) would require approximately 63,000 acres of total desert land with 21,000 federal acres. The scale of proposed landscape change is unprecedented. Solar energy facilities can be more land-intensive than other forms of energy generation. Because of concern about the potentially devastating impacts of climate change, most major environmental groups have expressed …

Green Siting For Green Energy, Amy Wilson Morris, Jessica Owley, Emily Capello

Journal Articles

No abstract provided.

From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis

Journal Articles

This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to …

From Citizen Suits To Conservation Easements: The Increasing Private Role In Public Permit Enforcement, Jessica Owley

Journal Articles

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the …

Rethinking Sustainability To Meet The Climate Change Challenge, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jona M. Roesler

Journal Articles

This article presents a preliminary effort to capture the dialogue at the Environmental Law Collaborative’s inaugural Workshop. Attendees engaged in the re-conceptualization of sustainability in the age of climate change, premised on evidence that climate change is forcing changes in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. …

Animal Frontiers: A Tale Of Three Zoos In Israel/Palestine, Irus Braverman

Journal Articles

Situated within fifty miles of each other at the heart of Israel-Palestine, three zoos — Jerusalem, Qalqilya, and Gaza — tell three very different stories about nonhuman animals, humans, and their imbricated survival across borders and at times of war. Through in-depth interviews with personnel from these three zoos, this article tracks the material and symbolic identities of three zoo animals. Yet the article is not just about animals; it is also a story about nationalism and its clandestine manifestations in ideologies of conservation. I argue here that alongside the straightforward story about sustaining wildlife, Israeli zoos’ control of zoo …

The Increasing Privatization Of Environmental Permitting, Jessica Owley

Journal Articles

This article examines the increasing privatization of environmental law by taking a close look at mitigation measures in permitting programs. As mitigation has become an increasingly important element of permitting programs, permitting agencies have looked for outside organizations to help design, monitor, and enforce the mitigation projects. Thus, compensatory mitigation projects provide a good lens for examining the role of private organizations in environmental law. There are good reasons for drawing on the power of private organizations. They can provide flexibility and expertise as well as increased capacity. However, concerns regarding democracy and accountability arise when government agencies hand off …

What Exactly Are Exactions?, Jessica Owley, Stephen J. Tulowiecki

Journal Articles

No abstract provided.

Green Harms Of Green Projects, John C. Nagle

Journal Articles

This article describes the recent development of renewable energy to examine environmental law’s three contrasting approaches to the green harms of green projects. Sometimes the law allows the green benefit regardless of the green harm. Sometimes the law prohibits the green harm regardless of the green benefit. And sometimes the law allows a balancing of all of the harms and benefits, green or not. Given these options, I argue that the law should not ignore or understate green harms even if they are caused by green projects. There are some types of green harms that no benefit can justify. But …

How Did Rggi Do It? Political Economy And Emissions Auctions, Bruce R. Huber

Journal Articles

Among the major emissions trading schemes in operation around the world, the Regional Greenhouse Gas Initiative (RGGI) stands alone: this CO₂ cap-and-trade program among nine northeastern states is the only such scheme to rely primarily on auctions to distribute emissions allowances. The standard practice - distributing allowances for free on the basis of historical emissions - elicits begrudging but politically crucial support from some regulated emitters. Like carbon taxation, allowance auctioning has long been considered economically superior to its alternatives but politically infeasible.

How did the RGGI states manage to defy conventional wisdom and institute a program so reliant …

Multipolar Governance Across Environmental Treaty Regimes: The Ramsar Convention In Its Middle Age, Kim Diana Connolly

Journal Articles

No abstract provided.

What Hath Lynn White Wrought?, John C. Nagle

Journal Articles

Lynn White’s 1967 article on “The Historical Roots of Our Ecologic Crisis” famously blamed Christianity for modern environmental problems. White’s historical analysis viewed Christianity for cultivating a dismissive view toward nature and for embracing technology in a way that resulted in unchecked pollution and extinctions. Since White wrote his article, Christian scholars have accepted the challenge that White’s diagnosis presented. Other nations, perhaps most notably China, have experienced crippling environmental destruction even in the absence of a legacy of Christian thought. More positively, White’s thesis has encouraged a generation of scholars to explore the positive aspects of Christian thought for …

Neoliberal Land Conservation And Social Justice, Jessica Owley

Journal Articles

No abstract provided.

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Journal Articles

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from …

The Enforceability Of Exacted Conservation Easements, Jessica Owley

Journal Articles

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation …

Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

Journal Articles

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation …

How Much Should China Pollute?, John C. Nagle

Journal Articles

The debate concerning how much China should pollute is at the heart of international negotiations regarding climate change and environmental protection more generally. China is the world’s leading polluter and leading emitter of greenhouse gases. It insists that it has a right to emit as much as it wants in the future. China interprets the principle of “common but differentiated responsibilities” to mean that China has a responsibility to help avoid the harmful consequences associated with climate change, but that its responsibility is different from that imposed on the United States and the rest of the developed world. In fact, …

See The Mojave!, John C. Nagle

Journal Articles

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …