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- James L. Huffman (4)
- Alexandra B. Klass (3)
- Paul Stanton Kibel (2)
- Roberta F Mann (2)
- Robin K. Craig (2)
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- Sandi Zellmer (2)
- Albert C Lin (1)
- Arthur M. Ortegon (1)
- Christiana Ochoa (1)
- David R Owen (1)
- Erin Ryan (1)
- Etan M Basseri (1)
- Hari Osofsky (1)
- Jacqueline P Hand (1)
- Jamison E. Colburn (1)
- Jason J. Czarnezki (1)
- Maria A del-Cerro (1)
- Mary Jane Angelo (1)
- Michael Blumm (1)
- Patrick E. Tolan Jr. (1)
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- Sameer H Doshi (1)
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Articles 1 - 30 of 31
Full-Text Articles in Law
Moonshine To Motorfuel: Tax Incentives For Fuel Ethanol, Roberta F. Mann, Mona L. Hymel
Moonshine To Motorfuel: Tax Incentives For Fuel Ethanol, Roberta F. Mann, Mona L. Hymel
Roberta F Mann
Abstract: Biofuels have been embraced by supporters from President George W. Bush to the Natural Resources Defense Council. Before 1930, the U.S. Treasury focused on shutting down small alcohol producers. After 1978, U.S. energy policy sought to encourage ethanol production to reduce dependence on foreign oil. Federal and state incentives have been credited with increasing ethanol production from 175 million gallons in 1980 to 3.9 billion gallons in 2005. The Internal Revenue Code contains three income tax credits designed to encourage ethanol use: the alcohol mixture credit, the pure alcohol credit, and the small ethanol producer’s credit. The credits, together …
Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein
Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein
Sandi Zellmer
n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …
Blanco V. Burton: What Did We Learn From Louisiana's Recent Ocs Challenge?, Ryan M. Seidemann, James G. Wilkins
Blanco V. Burton: What Did We Learn From Louisiana's Recent Ocs Challenge?, Ryan M. Seidemann, James G. Wilkins
Ryan M Seidemann
In the aftermath of Hurricanes Katrina and Rita, the State of Louisiana set out to ensure greater protection of its coast. Among the approaches taken by the State was an ambitious law suit against the federal government that aimed to force more meaningful scientific studies of the impacts of Outer Continental Shelf oil and gas activities in federal waters. For years, the State had decried the damaging impacts of these activities on its coast, from oil spills to increased vessel wakes to the cutting of navigation canals through the wetlands. The State believed that the federal government could, and indeed …
Capitalization Of The Nile, Arthur M. Ortegon
Re-Examining Natural Resource Damages Under Cercla: Failures, Lessons Learned, And Alternatives, Patrick E. Tolan
Re-Examining Natural Resource Damages Under Cercla: Failures, Lessons Learned, And Alternatives, Patrick E. Tolan
Patrick E. Tolan Jr.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposed widespread liability on responsible parties to clean up hazardous releases. In addition to cleanup liability, Congress also included important natural resource damages (NRD) provisions in CERCLA, to restore natural resources that had been injured or destroyed due to a release of hazardous substances.
This article examines lessons learned from NRD litigation to date to explain why a tool with so much potential to benefit the environment has remained underutilized. It also explores the bigger picture, including May, 2007, federal advisory committee proposals to make Natural Resource Damage Assessment …
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
James L. Huffman
The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.
Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …
Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig
Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig
Robin K. Craig
Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
James L. Huffman
Abstract
The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.
Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …
Making The Sale On Contingent Valuation, Sameer H. Doshi
Making The Sale On Contingent Valuation, Sameer H. Doshi
Sameer H Doshi
Scholarship and jurisprudence have not seriously considered the question of whether the contingent valuation (CV) technique of monetizing preferences for non-tradeable public goods is consistent with the Daubert standards for scientific evidence. The greatest difficulty is in establishing that CV is testable and has measurable error rates; this problem is consonant with criticisms that economists have leveled at the CV method more generally. Additionally, the “state of the art” of contingent valuation practice has recommended the use of the willingness-to-pay question format for CV, rather than willingness-to-accept. This is misplaced in many cases, particularly in calculating damages in environmental tort …
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
Jason J. Czarnezki
How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …
A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig
A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig
Robin K. Craig
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …
Depletion-Safe Tuna: Has The Unclos Tribunal Usurped Its Members’ Democracy?, Etan M. Basseri
Depletion-Safe Tuna: Has The Unclos Tribunal Usurped Its Members’ Democracy?, Etan M. Basseri
Etan M Basseri
In 1999 the International Tribunal for the Law of the Sea heard a complaint of fishing violations, with Australia and New Zealand alleging that Japan had exploited the delicate southern bluefin tuna fisheries in violation of the United Nations Convention on the Law of the Sea. Japan responded, and eventually prevailed, with the argument that the dispute was governed by a separate multilateral treaty concerning the tuna species. The issue of jurisdiction was a major issue in the case.
This paper argues that the Tribunal’s formation and operation was and is consistent with democracy. It applies four different critiques of …
Virtual Consumption: A Second Life For Earth?, Albert C. Lin
Virtual Consumption: A Second Life For Earth?, Albert C. Lin
Albert C Lin
Consumption is at the root of many of the world’s greatest environmental challenges, yet laws or policies that directly address consumption are rare. Virtual worlds such as Second Life offer the intriguing prospect of displacing a substantial amount of real-world consumption without running afoul of the political and economic obstacles that proposals to reduce consumption often face. In the interactive online reality of virtual worlds, players adopt an “avatar” and participate in an electronic world that mirrors the real world in striking ways. As this Article explains, virtual worlds offer opportunities, experiences, and pleasures that satisfy many of the basic …
Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa
Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa
Christiana Ochoa
Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …
The Frontier Of Eminent Domain, Alexandra B. Klass
The Frontier Of Eminent Domain, Alexandra B. Klass
Alexandra B. Klass
The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …
The Frontier Of Eminent Domain, Alexandra B. Klass
The Frontier Of Eminent Domain, Alexandra B. Klass
Alexandra B. Klass
The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …
The Killing Fields: Reducing The Casualties In The Battle Between U.S. Species Protection Law And U.S. Pesticide Law, Mary Jane Angelo
The Killing Fields: Reducing The Casualties In The Battle Between U.S. Species Protection Law And U.S. Pesticide Law, Mary Jane Angelo
Mary Jane Angelo
ABSTRACT
The Killing Fields:
Reducing the Casualties in the Battle Between
U.S. Species Protection Law and U.S. Pesticide Law
Mary Jane Angelo, University of Florida Levin College of Law
For the past 35 years a battle has raged due to the conflicting goals, standards, focus, and methods among the U.S. species protection laws and U.S. pesticide law. The unwitting casualties of this battle are the literally millions of birds, fish, and other wildlife species that have been killed and the hundreds of legally-protected species that have been put at risk of extinction. In the past several years the battle has …
Beware Of Greens In Praise Of The Common Law, James L. Huffman
Beware Of Greens In Praise Of The Common Law, James L. Huffman
James L. Huffman
Beware of Greens in Praise of the Common Law
James L. Huffman
ABSTRACT
After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …
Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer
Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer
Sandi Zellmer
: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age …
Bioregional Conservation Means Taking Habitat, Jamison E. Colburn
Bioregional Conservation Means Taking Habitat, Jamison E. Colburn
Jamison E. Colburn
Conservation’s richest innovation in decades has been the conservation easement and, by most accounts, it is still growing in both prevalence and scale. Private actors have used this device to innovate around the gridlock of the public sphere, achieving broad scales with limited capital. But this turn toward private ordering to protect nature has begun revealing some of the possibilities it will foreclose over the long term. With the demand for homes and second homes in rural and “exurban” environments soaring, the price of landscape scale conservation keeps rising, even as more of what is owned is already facing grave …
“Paper Battle On The River Uruguay; The International Dispute Surrounding The Construction Of Pulp Mills On The River Uruguay”, Maria A. Del-Cerro
“Paper Battle On The River Uruguay; The International Dispute Surrounding The Construction Of Pulp Mills On The River Uruguay”, Maria A. Del-Cerro
Maria A del-Cerro
Abstract This Comment explores the legality of the Uruguayan government’s decision to approve the construction of two pulp mill plants on the River Uruguay, and examines the related litigation currently pending before the International Court of Justice, “ICJ”. A review of international watercourse law assists in deciphering the parties’ substantive and procedural obligations under the 1975 Statute of the River Uruguay. The comment argues that Uruguay has fulfilled these obligations, while Argentina has not. The piece recommends that the ICJ resolve the dispute in favor of Uruguay, and adopt a more precise standard for determining when a state has complied …
Rio Grande Designs: Texans’ Nafta Water Claim Against Mexico, Paul Stanton Kibel, Jonathan R. Schutz
Rio Grande Designs: Texans’ Nafta Water Claim Against Mexico, Paul Stanton Kibel, Jonathan R. Schutz
Paul Stanton Kibel
No abstract provided.
Law, Environmental Dynamism, And Reliability, David R. Owen
Law, Environmental Dynamism, And Reliability, David R. Owen
David R Owen
This article examines conceptual frameworks often used to understand and resolve controversies involving scarce and legally protected natural resources. It proposes that those traditional frameworks, though ingrained in legal structures and conventional expectations, fail to adequately address tensions between resource consumption, environmental protection, and the reliability of resource allocation patterns, and thus can induce the adoption of solutions that prove fragile in contexts of environmental uncertainty and change. It then proposes a different conceptual approach capable of facilitating more lasting solutions. The article illustrates the importance of that conceptual shift by analyzing the "CALFED" controversy, an important environmental controversy in …
The Geography Of Climate Change Litigation Part 2: Narratives Of Nation-States And Thirdspace, Hari M. Osofsky
The Geography Of Climate Change Litigation Part 2: Narratives Of Nation-States And Thirdspace, Hari M. Osofsky
Hari Osofsky
This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and …
Protecting The World's Largest Body Of Fresh Water: The Often Overlooked Role Of Indian Tribes' Co-Management Of The Great Lakes, Jacqueline P. Hand
Protecting The World's Largest Body Of Fresh Water: The Often Overlooked Role Of Indian Tribes' Co-Management Of The Great Lakes, Jacqueline P. Hand
Jacqueline P Hand
During the first years of this century the Great Lakes states and provinces undertook the Annex 2001 negotiation process, which focuses on protecting the largest body of fresh water on the globe from excessive exploitation. The binding compact which resulted between the states, in coordination with a parallel voluntary agreement with the Canadian province of Quebec, is an excellent example of cooperation to protect an important environmental and economic resource. This process was marred by the persistent unwillingness to include the American Indian tribes and Canadian First Nations who have sovereign claims to the Great Lakes. This article discusses the …
Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman
Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman
James L. Huffman
In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …
Punitive Damages And Valuing Harm, Alexandra B. Klass
Punitive Damages And Valuing Harm, Alexandra B. Klass
Alexandra B. Klass
In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court’s current framework …
Another Day Older And Deeper In Debt: How Tax Incentives Encourage Burning Coal And The Consequences For Global Warming, Roberta F. Mann
Another Day Older And Deeper In Debt: How Tax Incentives Encourage Burning Coal And The Consequences For Global Warming, Roberta F. Mann
Roberta F Mann
Coal generates more than half of the electricity in the United States. Civilization has had a love-hate relationship with coal for centuries. Coal usage is both a blessing and a curse. Per unit of energy, coal appears to be the cheapest fuel. But while the nominal price we pay for coal-based energy reflects some of the cost of extracting, processing, transporting, and converting it to energy, it does not reflect the social and environmental costs of coal. Moreover, because coal is subject to tax subsidies, the price does not reflect the entire direct cost of coal. As long as coal …
Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul Stanton Kibel
Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul Stanton Kibel
Paul Stanton Kibel
No abstract provided.
Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm
Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm
Michael Blumm
In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.
Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …