Law Commons^™

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 …

Fine Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

Fine-Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela

Jed S Ela

Legal scholars have long argued that informal social norms can solve collective action problems, as long as these problems occur in close-knit groups. This “group knittedness hypothesis” may suggest that social norms, by themselves, will not be able to solve the world’s largest collective action problem: anthropogenic climate change. Yet recent scholarship has taken the group knittedness hypothesis too far, suggesting that any attempt to manage social influences in large, loose-knit groups is likely to be relatively ineffective.

In fact, social norms can shape individual behavior even in loose-knit groups, and climate policies that ignore norms may miss important opportunities …

Reaffirming The Rights Of Foreign Investors To The Protection Of Icsid Arbitration: Sempra Energy International V. The Argentine Republic, Daniel Krawiec

Daniel A Krawiec II

Earlier this decade, the Argentine government responded to a substantial domestic economic crises by passing several emergency laws and unilaterally changing the terms of its investment agreements with foreign investors. Sempra v. Argentine Republic is an important case because the tribunal decisively reaffirmed the right to ICSID arbitration for American investors harmed by Argentina’s actions. Furthermore, the tribunal held that the U.S.-Argentina bilateral investment treaty provided substantial substantive investment protection.

Ursus Maritimus, Kyoto And Bali: Linking The Agreement On The Conservation Of Polar Bears To Greenhouse Emissions Standards And Redefining The Concept Of “Taking”, Rachel Sinness

Rachel Sinness

ABSTRACT

In November of 1973, the United States, Canada, Norway, Denmark, and the Union of Soviet Socialist Republics entered into the Agreement on the Conservation of Polar Bears to protect polar bears in the Arctic Region. The Agreement prohibited the “taking” of the majestic creatures via prohibiting the hunting and capturing of the bears.

“Taking” language, used in many laws and international treaties, has consistently employed the prohibition of the killing—in some fashion—of various species. This is evident in international treaties such as the Bonn Convention. “Taking” also adapts this prohibitive language in national legislation, such as the Endangered Species …

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources: An Analysis Of Global And Local Implications Towards An Optimal Normative Construction, Kuei-Jung Ni

Kuei-Jung Ni

Since the Convention on Biological Diversity (CBD) was in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. Prior informed consent (PIC) of the ABS constitutes a major means to deter illegal bio-piracy and to ensure fair access to genetic resources. Given the differential social structure in individual nations, there seems to be no consistent pattern of PIC domestically. Some legislatures recognize the decisive role of indigenous or local communities in the context of enforcing PIC, making access to genetic resources impossible without their consent. On the other hand, several central governments …

The Last Stand Of The Wild West: Twenty-First Century Water Wars In Southern California, Shannon M. Baker-Branstetter

Shannon M Baker-Branstetter

In 2003, the Imperial Irrigation District of California agreed to transfer water from rural Imperial County to urban Southern California cities as part of a quantitative settlement agreement (QSA). The Colorado River water that the Imperial Irrigation District (IID) transferred to the wealthy coastal cities was held in trust for the residents of the Imperial Valley, the poorest county in the State. The following paper asserts that the IID Board of Directors breached its trust to the residents and farmers of Imperial County when it sold water rights to municipal districts in Southern California, thus acerbating the poor economic conditions …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to …

Justice Kennedy And Ecosystem Services: A Functional Approach To Clean Water Act Jurisdiction After Rapanos, Robin K. Craig

Robin K. Craig

Justice Kennedy’s “significant nexus” test may emerge as the proverbial silver lining of the U.S. Supreme Court’s June 2006 decision in Rapanos v. United States, at least so far as recognition of ecosystem services is concerned. The Court’s opinion in Rapanos was fractured. Nevertheless, it left no doubts that the Clean Water Act’s jurisdiction over “navigable waters” had been limited, drawing criticism for both its lack of clarity and its restriction of federal jurisdiction under the Act.

The extent of that restriction, however, would depend on which of the three major opinion’s in the case – Justice Scalia’s plurality, Justice …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, truth-telling, and anti-privatization. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to engage …

Over The River And (Around) The Woods To Grandma's House We Go: Long-Term Firm Transmission Rights, Transmission Market Power & Gaming Strategies In A Deregulated Energy Market-An International Comparison, Richard R. Bradley

Richard R Bradley

This Article was awarded the 2006-2007 Gulf Coast Power Association Scholarship in Electric Power for student writing involving electric power regulation. This Article focuses on the history of electricity deregulation and the current structure of the transmission grid while exploring the antitrust implications of firm transmission rights and gaming behaviors through reduced competition, decreased electricity reliability, and, typically, higher prices to consumers. Furthermore, this Article illustrates how the international community addresses the non-competitive aspects of transmission capacity. Among the countries examined are: England, the Scandinavian countries of Finland, Denmark, Sweden, and Norway, and Argentina. Many of the aforementioned electricity markets …

Advancing Freshwater Conservation In The Context Of Energy And Climate Policy: Assessing Progress And Identifying Challenges In The Western United States, Adell L. Amos

Adell L. Amos

This article critically evaluates freshwater conservation efforts in light of energy and climate policy in the western United States. Many, if not all, governmental entities today are facing tough and controversial questions involving energy demand and consumption. In the western United States, these energy questions are often inextricably linked to water resource availability and demand issues. With increased population and development pressure the challenges involving energy and water are likely to increase. Moreover, as the impacts from changes to climate and weather patterns increase various areas of the country will see changes to precipitation patterns, increased drought cycles, increased storm …

The Fire Next Time: Land Use Planning In The Wildland/Urban Interface, Jamison E. Colburn

Jamison E. Colburn

Wildfire is a growing threat to suburban and exurban communities, in part because fires have grown more severe and frequent as a result of land use and climatic influences and in part because more people are living in fire prone areas. The so-called Healthy Forest Restoration Act (HFRA), the federal government’s response to this crisis, is a deeply flawed statute that will likely exacerbate wildfire risks at the same time it makes real ecological restoration even harder. While HFRA took halting, partial steps toward the integration of broad and small scale land use planning, it was clearly still the outgrowth …

A Line Drawn In Water: Aquifers Beneath The Mexico-United States Border, Paul Stanton Kibel

Paul Stanton Kibel

No abstract provided.

The Identifiability Bias In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups rather than abstract ones. The more information that is available about a person, the more likely this person's situation will influence human decision-making. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries – people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal …

Pollution Tax Heuristics: An Empirical Study Of Willingness To Pay For Higher Gasoline Taxes, Shi-Ling Hsu, Joshua Walters, Anthony Purgas

Shi-Ling Hsu

Economists widely agree that in concept, pollution taxes are the most cost-effective means of reducing pollution. With the advent of monitoring and enforcement technologies, the case for pollution taxation is generally getting stronger on the merits. Despite widespread agreement among economists, however, pollution taxes remain unpopular, especially in North America. Some oppose pollution taxes because of a suspicion that government would misspend the tax proceeds, while others oppose pollution taxes because they would impose economic hardships upon certain individuals, groups, or industries. And there is no pollution tax more pathologically hated as the gasoline tax. This is unfortunate from an …

Some Quasi-Behavioral Arguments For Environmental Taxation, Shi-Ling Hsu

Shi-Ling Hsu

For decades, economists have advocated for the adoption of environmental taxes to reduce pollution at least cost. While this campaign has largely succeeded in Europe, where a wide variety of environmental taxes are in effect, environmental taxes are few and far between in North America, as economists have failed to persuade policymakers to make any significant policy use of environmental taxes. This paper presents three new arguments that draw heavily upon the behavioralist and organizational literatures, and augment the economic arguments proffered thus far in favor of environmental taxes.

First, environmental taxation creates conditions under which firms undertake creative processes …

A Climate Of Extremes: Transboundary Conflict Resolution, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This Article examines evolving climate change policy. In April 2007 Massachusetts v. Environmental Protection Agency clarified that the EPA has the authority to regulate greenhouse gas emissions. This Supreme Court ruling coincided with the United Nations Security Council's decision to put climate change on its agenda. The Intergovernmental Panel on Climate Change (IPCC) has found that anthropogenic climate change has impacted the natural world and human societies. Scientific and governmental consensus has coalesced that multilateral climate mitigation and adaptation must be implemented. International institutions, governments, businesses, non-governmental organizations, and civil society can achieve multilateral greenhouse gas mitigation and climate adaptation.

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …