Law Commons^™

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

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.

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 …

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 …

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 …

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 …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Property As Capture And Care, Keith H. Hirokawa

Keith H. Hirokawa

Capture (as a doctrine and a conceptual scheme) has long provided law with a basis for allocating rights between competing claims to property. Capture, however, has always offered only a partial picture of property. This article considers opportunities to view property law from the perspectives of care, collaboration, and community, principles offered by ecofeminists to describe the relationships that humans can (and do) have with land. This article argues that property is ultimately a negotiation between capture and care, and that by recognizing care as a property principle, property appears to provide a more comprehensive and consistent understanding of how …

A Review Of The 2011 And 2013 Digital Television Energy Efficiency Regulations Developed And Adopted By The California Energy Commission, Christopher P. Wazzan

Christopher P Wazzan

In December 2009, the California Energy Commission (“CEC”) adopted on-mode standards for power consumption of televisions, (e.g., watts used) which will go into effect in 2011. Proposed standards are subject to Section 25402(c) of the California Public Resources Code (“CPRC”) which requires that proposed regulations must “not result in any added total costs to the consumer over the designed life of the appliances concerned.” In order to comply with the CPRC, in September 2009, the CEC issued a report alleging consumers would save $8.1 billion from reduced energy consumption. We find that the CEC study is critically flawed and that …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

Cleaning Up Bankruptcy: Limiting The Dischargeability Of Environmental Cleanup Costs, Sonali P. Chitre

Sonali P Chitre

This article reconciles the joint aims of environmental and bankruptcy law after Judge Posner’s myopic opinion in the Seventh Circuit’s resolution of U.S. v. Apex Oil. These two areas of law represent alternative means to the same end—the equitable distribution of limited resources—and share equity’s traditional emphasis of function over form. Ignoring these principles, Judge Posner ruled in Apex that a cleanup order constitutes a dischargeable “claim” when styled as a legal judgment but not when styled as an equitable injunction. This despite the fact that in either case the liability amounts to the same thing-payment must be made for …

Finishing The Climate Change Puzzle: A Proposal For The United States National Climate Change Law, Carolyn Aguilar

Carolyn Aguilar

An analysis of the 2009-2010 Congressional climate change bill proposals and its potential impacts on international environmental agreements and its impacts on subnational climate change laws. This article proposes a potential best solution for a new national climate change law.

Present At The Creation: The 1910 Big Burn And The Formative Days Of The U.S. Forest Service, Michael Blumm

Michael Blumm

This is a book review of Timothy Egan's "The Big Burn: Teddy Roosevelt and the Fire That Saved America."

Out With A Bang: The Collapse Of Yucca Mountain Signals The Rise Of The New U.S. Cooperative Federalism Nuclear Reprocessing Model, Stefani C. Norrbin, Faye E. Jones

Faye E Jones

This Article argues that after the collapse of Yucca Mountain, the U.S. should move away from direct disposal by creating a new government backed, state-run corporation modeled after France’s Areva, to implement nuclear reprocessing in the U.S. This new model will help address the currently bankrupt nuclear waste system in the U.S. by using the money from the Nuclear Waste Fund that was collected for Yucca Mountain to provide financial support to states for nuclear reprocessing projects. Further, by working together, we can promote competition and innovation through state-run corporations backed by federal funding. In order to make the initial …

Cooling The Core Habitat Provision Of The Endangered Species Act Before It Goes Critical: Practical Critical Habitat Reformulation, Allan J. Ray

Allan J Ray

The Endangered Species Act contains provisions that aim to protect “critical habitat.” However, while having generated heated controversy and conflict and having served as fertile ground for legal, political, and economic theorists, these provisions have done very little to reduce the impact on endangered species from the land uses to which private owners put their property. This article synthesizes several of the most powerful criticisms of critical habitat, together with the responses thereto, to argue that the agencies implementing the Act have low-cost options available to them under the Act as presently structured that might pay big habitat dividends over …

Environmental Mitigation Aspects Of Water Resources In Geothermal Development: Using A Comparative Approach In Building A Law And Policy Framework For More Sustainable Water Management Practices In Canada, Kamaal Zaidi

Kamaal Zaidi

This paper examines environmental mitigation measures for water resources in the context of geothermal energy development among selected jurisdictions of the United States and New Zealand in the hopes of recommending a law and policy framework in Canada. These common law jurisdictions are chosen to reveal advances in the emerging area of geothermal law and policy. First, the geothermal energy process is explained, followed by a discussion of the legal aspects of geothermal energy development. Second, the benefits of geothermal law and policy are assessed from the experiences of the U.S. and New Zealand in terms of environmental mitigation measures …

New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress' Unfinished Environmental Business, Reed D. Benson

Reed D. Benson

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address today’s water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant …

Sitting On Your Rights: Why The Statute Of Limitations For Adverse Possession Should Not Protect Couch Potato Future Interest Holders, Stevie J. Barachkov

Stevie J Barachkov

This article suggests that vested future interest holders have legal recourse to remove adverse possessors during the preceding life tenant’s estate. It explores the British and American legal history that engendered modern adverse possession. It provides a survey of the public policy rationales behind adverse possession and an in depth review of its requisite elements. After examining the legal rights of future interest holders in the Fifty States, this article assesses the options for the future interest holder to obtain relief against either the life tenant or the adverse possessor in the form of actions: on the case; to quiet …

Epa’S Attempt To Regulate Greenhouse Gases Under The Clear Air Act: Will Chevron Allow The Tailoring Rule To Withstand Judicial Review? And Why The Answer Doesn’T Matter, James Valvo

James Valvo

The Environmental Protection Agency has issued three new Clean Air Act regulations targeting greenhouse gases, as a response to the Supreme Court’s ruling in Massachusetts v. EPA. One of these proposals, the Tailoring Rule, seeks to adjust the applicability thresholds that trigger the prevention of significant deterioration and title V permit requirements. EPA is attempting to use the Tailoring Rule to soften the blow of new greenhouse gas regulations on both businesses and state permitting agencies. This proposed rule clearly violates the expressed congressional intent in the statute. Legal challenges to EPA’s actions are looming and the standard of review …

Striving For Greenhouse Gas Mitigation In Pennsylvania : How Law And Biodiesel Can Play A Part, Jon W. Johnson

Jon W Johnson

An analytical review of federal and Pennsylvania law and its possible use to mitigate greenhouse gases through state legislation. Additional review is conducted to determine the feasibility of using biodiesel as a fuel to help reduce GHGs from Diesel powered equipment including heavy weight trucks. Proposed Legislation would require the mandatory implementation of Biodiesel in the Commonwealth at levels much higher than ever will be achieved under current law. Additionally, recommendations to impose strict regulations on manufactures of diesel type equipment to allow such use of high concentration of Biodiesel fuel in equipment without voiding existing or new warranties. Lastly, …

Super Deference, The Science Obsession, And Judicial Review Of Agency Science, Emily H. Meazell

Emily H. Meazell

When courts review agencies’ scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This “super-deference” principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decisionmaking. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins …

Farmers’ Rights And Open Source Licensing, Ryann H. Beck

Ryann H. Beck

The TRIPS treaty requires that WTO members offer patent or sui generis protections for plant life. Yet, many developing countries oppose intellectual property for plant life because, for those nations, plant IP has proven to be financially, environmentally, and socially detrimental. The farmers’ rights movement has grown out of such opposition and is an effort on the part of interest groups and developing countries to afford subsistence farmers control over farming methods and compensation for their contribution to the world’s biodiversity. Developing nations and farmers’ rights groups have spearheaded multiple treaties aiming to curtail plant monopoly rights; however, the treaties …

Proposed Mexican Strategies In The Case Of U.S. Failure To Comply With The 1944 Water Treaty Due To Climate Change., Arash Ebrahimi

Arash Ebrahimi

Very soon freshwater will shift into international focus as the most important scarce natural resource needed by humans to ensure their survival. At the center of this focus are freshwater sources shared between neighboring countries. The Colorado River has served the needs of U.S. and Mexican citizens for centuries and its use is dictated by the terms of a treaty signed by both nations in 1944. Even the most unrealistically conservative estimates show the Colorado River will be deficient in meeting freshwater demand in less than 50 years. Mexico’s anticipation of U.S. failure to comply with the terms of the …

Beyond Trust Species: The Conservation Potential Of The National Wildlife Refuge System In The Wake Of Climate Change, Robert L. Fischman

Robert L. Fischman

Over the last two decades, the U.S. Fish and Wildlife Service (“FWS”) has come to define its conservation mission in the context of species protection. The concept of “trust species” is now a common focal point for the myriad responsibilities of the FWS. This has become problematic for one of the major programs of the agency: management of the world’s largest biodiversity conservation network, the national wildlife refuge system (“NWRS”). A major legislative overhaul of the NWRS charter and the imperatives of climate change adaptation have weakened the concept as a reliable touchstone for NWRS management and expansion. The FWS …

The Dormant Commerce Clause And Water Export: Toward A New Analytical Paradigm, Christine Klein

Christine A. Klein

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of …