Law Commons^™

B.Y.O.B. (Bring Your Own Bag): A Comprehensive Assessment Of China’S Plastic Bag Policy, Mary Beckwith O'Loughlin

Mary Beckwith O'Loughlin

On June 1, 2008, the Chinese government enacted a nationwide policy prohibiting all stores from freely distributing plastic bags to customers. This new policy requires that, henceforth, all retailers must charge a nominal fee for plastic bags and that those purchasable bags must meet certain quality requirements to improve their potential reusability. These retailers, which include everything from grocery and clothing stores to farmer’s markets and food stalls, individually determine how much to charge for their bags and get to keep all related proceeds. The policy is an effort to mitigate the “white pollution” that is choking China’s landscape, as …

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Rena I. Steinzor

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Heads I Win, Tails You Lose: Uncertainty And The Protection Of Biodiversity From Invasive Alien Species, Sophie Riley

Sophie Riley

Scientists anticipate that the problem of invasive alien species will be exacerbated by co-stressors of biodiversity, such as land clearing and climate change. One of the most effective means of regulating invasive alien species is to prevent their entry by implementing rigorous quarantine measures with strong border controls. Yet, regulators face constant uncertainty with regard to the impact of invasive alien species on biodiversity, and the need to navigate a range of opinions on how best to deal with uncertainty. These difficulties are illustrated by the differing approaches to uncertainty embodied by the World Trade Organization on the one hand …

Corrective Lenses For Iris: Additional Reforms To Improve Epa's Integrated Risk Information System, Rena I. Steinzor, Wendy E. Wagner, Lena Pons, Matthew Shudtz

Rena I. Steinzor

The Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) is the most important toxicological database in the world. Not only is it the single most comprehensive database of human health information about toxic substances, it also serves as a gateway to regulation, as well as to a range of public and private sector efforts to protect against toxic substances. IRIS “profiles” of individual substances include a number of scientific assessments of the substance’s toxicity to humans by various means of exposure – by inhalation, contact with the skin, and so on. Federal regulators rely on the assessments to do …

A Quantitative Assessment Of The Development Of Renewable Energy In Taiwan, 1980 To The Present: A Political-Economic Perspective, Kuang-Cheng Chen

Kuang-Cheng Chen

This article attempts to use quantitative analysis (regression analyses) to analyze renewable energy development in Taiwan from 1980 to the present using the political-economic perspective. This research found that the “Renewable Energy Supply” and the “Renewable Energy Supply/Total Energy Supply” were impacted by political factors (e.g., “Which party wins half of the seats for county magistrates and city mayors in a given year?”) between 1980 and 1999, but were influenced by economic factors (GDP (PPP) from 2000 to 2007. As regards the “Ratio of CO2 Emissions to the Population,” it was impacted by economic factors (GDP (PPP)) from 1980 to …

The 2009 Eu Regulation On Trade In Seal Products, Mohamed Coulibaly

Mohamed Coulibaly

This paper assesses the justifiability of trade-related measure for the purpose of protecting the environment. It analyzes a new regulation adopted by the European Communities to ban trade in seal products derived from commercial hunting. The measure has been challenged under the WTO rules by two major sealing countries -Norway and Canada, on the ground that it violates the EC obligations under those rules. After analyzing relevant WTO jurisprudence, the paper concludes that the EC regulation violates the EC obligations but, is justifiable under the General exceptions of the GATT 1994, and does not constitutes a technical regulation under the …

Our Blue Water Navy Goes Green, Tom Spahn

Tom Spahn

When one thinks of hybrid transportation, the image conjured generally involves small vehicles dedicated to ferrying people (encumbered by very few belongings) through congested city streets. The Toyota Prius certainly comes to mind as a classic example. One likely would not think of massive naval warships steaming the world’s seven seas as potential applications of this environmentally friendly technology. Likewise, one would not consider fighter jets screaming off the decks of aircraft carriers as the newest tools of the “green” revolution. Yet new technologies on board these platforms herald a renewed commitment from the Navy, and the United States Military …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Alyson Flournoy, William Andreen, Rebecca Bratspies, Holly Doremus, Victor Flatt, Robert Glicksman, Joel Mintz, Daniel Rohlf, Amy Sinden, Rena I. Steinzor, Joseph Tomain, Sandra Zellmer, James Goodwin

Rena I. Steinzor

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

The Year Of The Tiger, The Thrill Of The Fight: Why Conservation Should Not Succumb To Commerce, Tricia S. Patel

Tricia S Patel

The Year of the Tiger, The Thrill of the Fight: Why Conservation Should Not Succumb to Commerce This paper discusses the international and domestic regulation of tigers and recent conservation methods adopted under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES). With the illicit wildlife trade being the third largest form of trafficking, the author focuses on the role of China and its domestic policies, with a discussion on the use of tiger parts in the practice of Traditional Chinese Medicine. Additionally, the author discusses China's adoption of tiger farms as the predominant method …

Essay: The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

James Salzman

Over the last several years, so-called “carbon markets” have emerged around the world. These markets trade different types of greenhouse gas credits. In this essay, we take a close look at an unexpected and unprecedented development – premium “green” currencies have emerged alongside and even displaced standard compliance currencies. Past experiences with other environmental compliance markets, such as the sulfur dioxide and wetlands mitigation markets, suggest the exact opposite should be occurring. Indeed, buyers in such markets should only be interested in buying compliance, not in the underlying environmental integrity of the compliance unit. In carbon markets, however, higher quality …

Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

The Boundaries Of Public Nuisance, Richard O. Faulk, John S. Gray

Richard Faulk

Over the past 20 years, government entities have sought to use the vagueness of generic public nuisance statutes to address complex public health issues, including tobacco use, gun violence, childhood lead poisoning, global warming and the fallout from the subprime mortgage meltdown. Because the tort of public nuisance is so amorphous, many of these entities have sought to is so amorphous, many of these entities have sought to blam industry for societal problems even when the actual harm is often caused by third and fourth parties who misuse or abuse industry's products. Some sympathetic judges have issued abatement orders that …

Global Climate Governance To Enhance Biodiversity & Well-Being: Integrating Non-State Networks And Public International Law In Tropical Forests, Andrew Long

Andrew Long

Environmental governance frequently represents a leading edge of global regulation. The climate regime even continues to create new modes of regulation despite a negotiation impasse. These new initiatives, like existing legal approaches to environmental challenges, too often embrace a fragmented view of issue areas that fails to reflect fundamental connections between the objects of regulation. The shortcomings of a state-driven international issue-by-issue approach to global environmental governance have long been obvious in some areas (such as tropical forests), and are becoming ever clearer in others (most notably climate change). Therefore, private networks play an increasingly important role in global environmental …

Protecting Pocahontas's World: The Mattaponi Tribe's Struggle Against Virginia's King William Reservoir Project, Allison M. Dussias

Allison M Dussias

This article examines the efforts of the Mattaponi Tribe of Virginia to combat an environmentally destructive reservoir project that threatened sacred and archaeological sites and implicated tribal treaty rights, including fishing rights. The Tribe opposed the project through both the federal and state administrative approval process and litigation. The dispute over the reservoir highlights the difficulties that tribes have faced historically, and continue to face today, as they try to protect their rights to land, water, and subsistence resources.

Liability For Environmental Harm And Emerging Global Environmental Law, Robert V. Percival

Robert Percival

Environmental law and policy are undergoing rapid change at the global, national, and even local levels. The nations of the world continue to struggle to develop an effective global response to climate change. Transboundary pollution and resource management problems command regional attention even as nations work to upgrade their own environmental standards and their energy, transportation, and land use policies. Surprising environmental initiatives are emerging even from state and local governments. In my previous work I have argued that globalization is affecting law and legal systems throughout the world in profound new ways. See Robert V. Percival, The Globalization of …

Deferring To The Assertion Of National Security: The Creation Of A National Security Exemption Under The National Environmental Policy Act Of 1969, Emily Donovan

Emily Donovan

The National Environmental Policy Act of 1969 (NEPA) aims to ensure that agencies consider the potential environmental impacts of their actions before engaging in them. In contrast to other major environmental legislation, Congress did not include a national security exemption under NEPA, meaning that, in theory, agencies in the business of national security must comply with NEPA just as any other agency, by considering mitigation measures and alternatives, and preparing environmental impact statements when necessary. The courts, however, in deciding NEPA noncompliance cases, have created a national security exemption that the legislature never intended. They have done so by failing …

The Property Problem: A Survey Of Federal Options For Facilitating Acquisition Of Carbon Sequestration Repositories, Thomas Brugato

Thomas Brugato

This paper surveys federal options for facilitating carbon capture and sequestration (CCS). A variety of legal impediments must be addressed before CCS will become commercially viable. This paper examines one of those impediments: the need of sequestration entities to acquire large amounts of suitable subsurface property (pore space) for use as a repository. Currently, uncertainty over the ownership of the pore space as well as high transaction costs for acquiring property rights from numerous landowners present substantial obstacles for sequestration entities. The presence of other conflicting uses of pore space further complicates the acquisition of the necessary property rights. As …

Some Back-Ended Legal And Political Issues In United States Fisheries Management, Chad J. Mcguire, Bradley P. Harris

Chad J McGuire

Was Selden Right? The Expansion Of Closed Seas And Its Consequences, Scott Shackelford

Scott Shackelford

This Article focuses on the relationship between the legal regimes governing offshore resources in the continental shelves and the deep seabed, particularly in reference to the extent to which continental shelf claims are encroaching on the deep seabed. The question of how well these respective legal regimes regulate resource exploitation will also be considered, along with an analysis of the underlying reasons driving change in these governance structures. I argue that the primary issue is one of whether vague rules, particularly UNCLOS Article 76, are working in terms of incentivizing sustainable, peaceful development of offshore resources.

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the …

Property Rights On The New Frontier: Climate Change, Natural Resources Development, And Renewable Energy, Alexandra B. Klass

Alexandra B. Klass

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control …

Water Rx: The Problem Of Pharmaceuticals In Our Nation's Waters, Melanie Leitman

Melanie Leitman

No abstract provided.

Relational Integrity Regulation: Nudging Consumers Toward Products Bearing Valid Environmental Marketing Claims, Jeffrey J. Minneti

Jeffrey J Minneti

Over the last two decades scholars have addressed attributes of effective environmental regulation and advocated a wide spectrum of regulatory approaches, from the traditional command-and-control model to a libertarian-paternalism approach. Some writers have used those approaches to advocate for modifications to the Green Guides. This article joins that conversation and accomplishes two goals. First, it harmonizes environmental regulation scholarship, resulting in the creation of a new form of regulation that it terms “Relational Integrity” regulation. Second, in light of the Relational Integrity approach to regulation, the article examines public and private environmental claim regulatory schemes and suggests how those schemes …

Trout Of Bounds: The Effects Of The Federal Circuit Court Of Appeals’ Incorrect Fifth Amendment Takings Analysis In Casitas Municipal Water District V. United States, Raymond Dake

Raymond Dake

Abstract: The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test. The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to …

Two Cheers For Feasible Regulation: A Modest Response To Masur And Posner, David M. Driesen

David M Driesen

This response to Masur and Posner's "Against Feasibility" argues that the feasibility principle has normative and practical advantages over cost-benefit analysis. Normatively, it shows that the happiness literature's suggestion that jobs may be much more important than consumption to welfare supports the feasibility principle's emphasis on maximizing pollution reduction without producing widespread plant shutdowns. It shows that the practical problems Masur and Posner associate with feasibility analysis arise under cost-benefit analysis as well.

Avoiding The "Big Black Hole" Of Development Aid: The Legal Promise And Inherent Challenges Of Community-Directed Development, Allison Wells

Allison Wells

In the face of recent natural disasters in places such as Haiti and Pakistan, as well as the chronic underdevelopment in many regions of the world, development aid funnels billions of dollars around the globe every year in an effort to improve the lives of suffering populations. However, the distribution of those funds is constantly controversial, and much is said about the potential for mismanagement in international development, as well as the risk of political paternalism in dictating what needy communities are lacking. Community-Directed Development (CDD) is a growing trend in international aid that improves upon many of these pitfalls …

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

Fees On Plastic Bags: Altering Consumer Behavior By Taxing Environmentally Damaging Choices, Alice R. Baker

Alice R Baker

Reduce, reuse, recycle, the environmental adage of the 1980s has proved unsuccessful in solving many of our solid waste problems. Far too often emphasis was placed only on recycling as the solution to our troubles, while the concepts of reducing our consumption or reusing products fell by the wayside. Thirty years later, it is clear that simply recycling is not enough.

Plastic bags have emerged as an icon of society’s eagerness to acquire goods and its single-use consumerism. Every year approximately 500 billion to 1 trillion plastic bags are consumed worldwide. Our uncontrolled consumption and quick disposal of plastic bags …

Rescuing The Strong Precautionary Principle From Its Critics, Noah Sachs

Noah Sachs

The Strong Precautionary Principle, a theory of risk regulation that shifts the burden of proof on safety, provides a valuable framework for preventing harm to human health and the environment. Yet Cass Sunstein and other scholars have consistently attacked it as paralyzing, inflexible, and extreme.

This Article undertakes a reassessment of the Strong Precautionary Principle, providing a counterweight to the mountain of critical scholarship. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, but through burden shifting, the …

Why Intellectual Property Rights In Traditional Knowledge Cannot Contribute To Sustainable Development, Dennis S. Karjala

Dennis S Karjala

This paper makes a simple point: If sustainability (however defined) is the goal, intellectual property rights in traditional knowledge do not move us toward the achievement of that goal. The reason is that the only social policy justification for recognizing intellectual property rights at all is that they supposedly serve as an incentive to create socially desirable works of authorship and inventions. They are not and should serve as a reward for past achievements. In other words, outside of their usual incentive function of promoting new technology, intellectual property rights in traditional knowledge have no role to play in the …