Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
- Publication
- File Type
Articles 1 - 23 of 23
Full-Text Articles in Law
Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski
Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski
Adam J. Sulkowski
This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …
The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary
The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary
James R. May
This article explores how scientific and engineering principles are inexorably linked to the regulation of water. Scientists and engineers first discovered the link between disease and water sources in the mid-19th century. Over the years, scientists and engineers have led the way to identifying water quality problems and their causes. These discoveries have directly contributed to the scope of water regulation in the United States and elsewhere. In addition, changes in water quality regulation have dictated the need for increasingly sophisticated water treatment technologies and engineers have been at the forefront of the development of these water control technologies. This …
Evangelizing Climate Change, Albert Lin
Evangelizing Climate Change, Albert Lin
Albert C Lin
Any effective response to climate change must address greenhouse gas (GHG) emissions from individuals, who are responsible for nearly one-third of total annual emissions. A leading proposal for doing so, developed by Michael Vandenbergh and Anne Steinemann, advocates the disclosure of information about an individual’s emissions, resulting harms, and steps that can be taken to reduce emissions. Providing information on individuals’ contribution to climate change will be important in countering common misconceptions that individual activities do not matter to the environment. Such proposals, however, give insufficient attention to the role of personal values. Values matter to efforts to change individual …
Climate Change And The Political Question Doctrine, James R. May
Climate Change And The Political Question Doctrine, James R. May
James R. May
No abstract provided.
Environmental Justice And Domestic Climate Change Policy, Alice Kaswan
Environmental Justice And Domestic Climate Change Policy, Alice Kaswan
Alice Kaswan
This article argues that, except in California, environmental justice considerations have not received sufficient attention in climate change policy debates. It explores the environmental justice implications of emerging domestic climate change policies and provides policymakers with specific suggestions on how to integrate environmental justice concerns. The article begins by introducing the environmental justice movement and its central principles, and then explores the limited integration of environmental justice concerns in existing climate change policies.
The article then clarifies existing debates about the environmental implications of greenhouse gas cap and trade programs by providing a detailed assessment of their distributional benefits and …
Give A Hoot, Don’T Pollute: The Roberts Court And The Environment, David A. Schultz
Give A Hoot, Don’T Pollute: The Roberts Court And The Environment, David A. Schultz
David A Schultz
Analysis and predictions on the jurisprudential direction of the Roberts Court have thus far produced articles examining its possible impact on several areas of law, but so far none have assessed the Court’s treatment of environmental issues in a comprehensive fashion, even though it has decided seven cases in this area in the 2005 and 2006 terms. This Article reviews these seven decisions, concluding that based on them there is no discernable pro-business bias thus far as some had predicted. However, the Court is very divided ideologically on environmental issues, suggesting that the next presidential appointment could have a major …
On Notions Of Fairness In Environmental Justice, Dennis C. Cory
On Notions Of Fairness In Environmental Justice, Dennis C. Cory
Dennis C Cory
Environmental justice (EJ) is concerned with the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. An especially contentious issue in the EJ arena of concerns is the siting of potentially polluting activities, particularly activities that increase environmental risks while providing economic development benefits. It is argued that conventional notions of fairness, frequently advanced in EJ settings, offer little, if any, guidance on how siting proposals should be evaluated. By advocating the deontological pursuit of a right, equality, or …
Constitutional Climate Change In The Courts, James R. May
Constitutional Climate Change In The Courts, James R. May
James R. May
We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, …
Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman
Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman
Robert L. Glicksman
Environmental agencies have several options for dealing with alleged noncompliance with environmental regulations. These options include pursuit of administrative or judicial civil penalties and injunctions to prevent future violations. Scholars have begun exploring whether these options induce better performance by regulated entities. This Article addresses a largely neglected question: whether a regulated facility’s characteristics affect the efficacy of the different enforcement options. The Article stems from a study of compliance by the chemical industry with federal Clean Water Act permits. It assesses whether facility characteristics, including effluent limit level and type, permit modifications, facility size, capacity utilization, discharge volatility, and …
China And Climate Change: Domestic Environmental Needs, Differentiated International Responsibilities, And Rule Of Law Weaknesses, Patricia Ross Mccubbin
China And Climate Change: Domestic Environmental Needs, Differentiated International Responsibilities, And Rule Of Law Weaknesses, Patricia Ross Mccubbin
Patricia Ross McCubbin
China recently become the world’s largest emitter by volume of greenhouse gases. As the U.S. moves forward with domestic efforts to restrict its GHG emissions, some policymakers will continue to condition any U.S. obligations on China’s commitments to curb its own emissions. Fortunately, the opportunity exists for a mutually beneficial U.S.-China dialogue on this issue, since, as this article makes clear, China’s central government recognizes that climate change could cause devastating sea level rises that will affect major population centers in the country, as well as droughts and other natural disasters. The central government likewise understands that measures to reduce …
Bridging Data Gaps Through Modeling And Evaluation Of Surrogates: Use Of The Best Available Science To Protect Biological Diversity Under The National Forest Management Act, Robert L. Glicksman
Bridging Data Gaps Through Modeling And Evaluation Of Surrogates: Use Of The Best Available Science To Protect Biological Diversity Under The National Forest Management Act, Robert L. Glicksman
Robert L. Glicksman
The implementation of environmental law and policy typically proceeds in the face of scientific uncertainty. Despite this pervasive uncertainty, Congress has directed environmental and resource management agencies to ground their policy decisions in science. Agencies sometimes cope with the paradox of making science-based decisions in the face of uncertainty by using scientific models or other surrogacy techniques to simulate reality. Such simulation enables agencies to conform to their statutory responsibilities to base decisions on scientific considerations, even though a complete understanding of the relationships between their actions and the resulting environmental effects may be beyond their current capabilities.
This article …
Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman
Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman
Robert L. Glicksman
State legislatures and environmental agencies have taken the lead in combating climate change, in the absence of leadership by the federal government. The most widely publicized efforts have involved the imposition of emission controls and fuel economy standards on motor vehicles by states such as California. But the states have also targeted stationary sources of greenhouse gases. In particular, they have sought to minimize carbon dioxide emissions from coal-fired power plants. States have used different approaches to reducing greenhouse gas emissions from electric utilities, including the adoption of renewable portfolio standards and cap-and-trade emission control programs. Increasingly, states are also …
Engaging Individuals In Climate Change Mitigation, John Dernbach
Engaging Individuals In Climate Change Mitigation, John Dernbach
John C. Dernbach
No abstract provided.
Navigating The U.S. Transition To Sustainability: Matching National Governance Challenges With Appropriate Legal Tools, John Dernbach
Navigating The U.S. Transition To Sustainability: Matching National Governance Challenges With Appropriate Legal Tools, John Dernbach
John C. Dernbach
Sustainable development would require the United States to maintain and improve human prosperity while at the same time greatly reducing its consumption of energy, materials, water, and land. The scope of the challenge includes, but is not limited to, climate change. This Article suggests the elements of a legal structure for achieving sustainability.
Because achieving sustainable development is a significant learning experience, the United States will need to employ a form of governance—reflexive governance—that requires constant learning and supportive citizens and stakeholders who are also working to ensure sustainability in their own activities. The two basic problems reflexive governance must …
Harnessing Individual Behavior To Address Climate Change: Options For Congress, John C. Dernbach
Harnessing Individual Behavior To Address Climate Change: Options For Congress, John C. Dernbach
John C. Dernbach
No abstract provided.
Using Mandates And Incentives To Promote Sustainable Construction And Green Building Projects In The Private Sector: A Call For More State Land Use Policy Initiatives, Carl J. Circo
Carl J. Circo
Vantage Point, David R. Hodas
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
James R. May
Recently states and individuals have turned to federal common law causes of action to provide equitable and legal relief for climate change. Thus far, every federal court to consider these claims has held that they raise non-justiciable political questions consigned to the coordinate branches. These courts reason that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. This article concludes that these courts either misapply or misapprehend the doctrine. It concedes that federal …
Keeping The Coast Clear: Lessons About Protecting The Natural Environment By Controlling Industrial Development Under Delaware’S Coastal Zone Act, Kenneth T. Kristl
Keeping The Coast Clear: Lessons About Protecting The Natural Environment By Controlling Industrial Development Under Delaware’S Coastal Zone Act, Kenneth T. Kristl
Kenneth T Kristl
Passed in 1971, Delaware’s Coastal Zone Act was a pioneering law that declared as public policy the prohibition of heavy industry and the regulation of manufacturing within Delaware’s coastal zone because of the environmental threats posed by such development. This article is the first comprehensive scholarly analysis of how the Act has been interpreted and applied to protect Delaware’s coastal environment. It provides an extensive analysis and annotation of how the Act’s terms have been used and the principles of statutory interpretation that inform the Act’s continued application. The article argues that the Act’s prohibitions on heavy industry and bulk …
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
James R. May
This Article examines the shape of things to come in the overlapping realm of federalism and preemption. It questions whether and to what extent notions of federalism shape how federal law - or the absence of it - preempts states from taking measures to address climate change. A burgeoning body of legal scholarship mulls whether federal law ought to preempt state action. There is yet relatively spare legal scholarship on preemption reflecting recent developments in the courts and at EPA. Part One explains how federalism principles have shaped responses to climate change. It observes how allowing states to take steps …
Federal Climate Change Legislation As If The States Matter, John C. Dernbach, Robert B. Mckinstry,, Thomas D. Peterson
Federal Climate Change Legislation As If The States Matter, John C. Dernbach, Robert B. Mckinstry,, Thomas D. Peterson
John C. Dernbach
The growing prospect of comprehensive national climate change legislation raises many important questions about the role of state efforts in a national climate change program. This article identifies the key state/federal issues that should be addressed in any comprehensive national comprehensive climate change legislation. It also provides recommendations for resolving these issues. In addition to a cap-and-trade program and uniform national standards for some sectors, federal climate change legislation should adopt and modify the State Implementation Plan model in the Clean Air Act. That is, states should be given responsibility through State Implementation Plans to achieve specified emissions reductions, including …
Constitutional Law: 2008 Annual Report, James R. May
Constitutional Law: 2008 Annual Report, James R. May
James R. May
No abstract provided.
Developing A Comprehensive Approach To Climate Change Policy In The United States That Fully Integrates Levels Of Government And Economic Sectors, John C. Dernbach, Thomas D. Peterson, Robert B. Mckinstry
Developing A Comprehensive Approach To Climate Change Policy In The United States That Fully Integrates Levels Of Government And Economic Sectors, John C. Dernbach, Thomas D. Peterson, Robert B. Mckinstry
John C. Dernbach
The United State Supreme Court's holding in Massachusetts v. EPA that greenhouse gases are air pollutants under the Clean Air Act makes it virtually certain that federal climate change legislation will be accomplished by amending that Act. This Article explains and justifies an approach to federal climate legislation that uses and builds on the Act's various tools, including air quality standards, technology-based limitations, and state implementation plans. The Article discusses models for climate response that have emerged from state responses to date and presents the reductions that could be achieved if these were scaled up to the federal level. Federal …