Law Commons^™

Moderator, Pope Francis’S Encyclical: An Ethical Summons To Tackle Climate Change, David Wirth

David A. Wirth

No abstract provided.

Co-Organizer, Our Common Home: An Ethical Summons To Tackle Climate Change, David Wirth

David A. Wirth

No abstract provided.

Climate Change And Human Rights: Intellectual Property Challenges And Opportunities, Alexandra Phelan

Matthew Rimmer

Mitigating and adapting to the effects of climate change will require innovation and the development of new technologies. Intellectual property laws have a key part to play in the global transfer of climate technologies. However, failures to properly utilize flexibilities in intellectual property regimes or comply with technology transfer obligations under international climate change agreements calls for a human rights based analysis of climate technology transfer. Climate change is an unprecedented challenge and requires unprecedented strategies. Given the substantial impact of climate change on all of humanity and the ethical imperative to act, a complete rethink of traditional intellectual property …

Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk

Richard Faulk

Although Chevron’s reasoning stresses the expertise of agencies as a basis for deference, the APA plainly delegates final interpretive authority to the courts. Since there is no statutory basis for superseding or diminishing the judicial role in the interpretive process, there is no justification for using deferential review to bypass the judiciary’s primary responsibility. It is time—indeed past time—for the Supreme Court to exercise its singular constitutional authority to declare “what the law is”—and to curb the increasingly intrusive and overreaching authority seized by the Executive Branch. The American people, from whom all authority is derived, are entitled to be …

Owning The New Economy: A Guide To Intellectual Property Management For Australia's Clean Technology Sector, Kane Wishart

Matthew Rimmer

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level …

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina Warren

Gina Warren

No abstract provided.

The Puppy Prohibition Period: The Constitutionality Of Chicago's War On Animal Mills, Christopher W. Moores

Christopher W Moores

No abstract provided.

The North-South Divide In International Environmental Law: Framing The Issues, Carmen G. Gonzalez, Sumudu Atapattu

Carmen G. Gonzalez

The unprecedented degradation of the planet’s vital ecosystems is among the most pressing issues confronting the international community. Despite the proliferation of legal instruments to combat environmental problems, conflicts between rich and poor nations (the North-South divide) have compromised the effectiveness of international environmental law, leading to deadlocks in environmental treaty negotiations and non-compliance with existing agreements. Through contributions from scholars based in five continents, International Environmental Law and the Global South examines both the historical origins of the North-South divide in European colonialism as well as its contemporary manifestations in a range of issues, including food justice, energy justice, …

International Environmental Law And The Global South, Carmen G. Gonzalez

Carmen G. Gonzalez

The unprecedented degradation of the planet’s vital ecosystems is among the most pressing issues confronting the international community. Despite the proliferation of legal instruments to combat environmental problems, conflicts between rich and poor nations (the North-South divide) have compromised the effectiveness of international environmental law, leading to deadlocks in environmental treaty negotiations and non-compliance with existing agreements. Through contributions from scholars based in five continents, International Environmental Law and the Global South examines both the historical origins of the North-South divide in European colonialism as well as its contemporary manifestations in a range of issues, including food justice, energy justice, …

Katrina's Lessons: Learned And Unlearned, Robert R.M. Verchick

Robert R.M. Verchick

In the last few years, I’ve commemorated the anniversary of Hurricane Katrina in a new way: by pedaling along the self-guided “Levee Disaster Bike Tour.” I begin beneath muscular oaks along New Orleans’ Bayou St. John, and I weave my way around potholes and waterfowl to pay silent respects near three prominent levee-breach sites, each marked with a commemorative plaque. Ten years ago, those breaches, combined with more than 50 others to bring a great American city to its knees. I lived in New Orleans then, and evacuated to Houston for six months. Like so many others I resolved to …

Beyond The Spotted Owl Problem: Learning From The Old-Growth Controversy, Alyson C. Flournoy

Alyson Flournoy

This Article is a case study of a single controversy that has been raging in the Pacific Northwest: the now infamous dispute over logging in publicly owned old-growth forests and the attendant threat to the northern spotted owl. The spotted owl, confronting extinction, sits at the center of the controversy, but the debate extends far beyond the fate of the owl, raising issues about the intrinsic value of unique and native ecosystems and the long-term consequences of logging practices on our public lands on the one hand, and about the costs of environmental protection and economic transition on the other.

Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy

Alyson Flournoy

This panel discussion applied ethics to the theme of the 8th Annual Public Interest Environmental Conference. Panelists examined ways ethics may help reconcile industry (such as business and development) with environmentalism.

Preserving Dynamic Systems: Wetlands, Ecology And Law, Alyson C. Flournoy

Alyson Flournoy

Ecology has advanced human understanding of natural systems considerably over the course of this century. Wetlands law and policy have evolved in response to our increased understanding of wetlands and the many benefits we derive from them. Notwithstanding this shift in policy and law, roughly 50% of the wetlands that existed in the continental United States in colonial times have been lost or degraded largely as a result of recent human activity. Current policies struggle to reconcile the goal of preventing further loss with the pervasive concern for making our laws more efficient. This essay explores the lessons ecology offers …

Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson Flournoy, Allison Fischman

Alyson Flournoy

This Article raises the question of how we should assess the potential threat to wetlands posed by the impacts of a changing climate and considers the role that section 404 of the Clean Water Act can play both in assessing and responding to that threat. Our inquiry is two-fold. First, should we be concerned about climate impacts on wetlands? And if so, how can section 404 help us to assess and respond to this threat? Part I surveys the scientific literature on the projected impacts of climate change of particular relevance to wetlands and the impacts anticipated for particular types …

Comprehensive Seagrass Restoration Planning In Southwest Florida: Science, Law And Management, Althea S. Hotaling, R. Benjamin Lingle, Thomas T. Ankersen

Thomas T Ankersen

In coastal Florida, the development and maintenance of docks, marinas, and channels frequently cause destruction of seagrass beds. Seagrass loss is accompanied by a loss of the ecosystem services the beds provide, such as sediment stabilization, water filtration, protection from storms, and habitat and nursery grounds for fish species. The current legal framework for seagrass protection and the implementation of mitigation for seagrass loss could be improved. In this Article, the authors argue that policymakers could revise the Uniform Mitigation Assessment Method to include more assessments related specifically to the ecology of seagrass beds and their ecosystem services. Seagrass mitigation …

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

Thomas T Ankersen

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on …

Mesoamerican Biological Corridor: The Legal Framework For An Integrated, Regional System Of Protected Areas, Thomas T. Ankersen

Thomas T Ankersen

This article first briefly examines the historical basis for the recent movement toward regional environmental integration in Central America. Part II discusses the biological, economic and cultural rationales for a regional, protected-areas system. With this background, Part III reviews the current international law framework for biodiversity conservation. Part IV examines the extent to which existing models of international and regional cooperation incorporate modern scientific principles of conservation biology, such as island biogeography, into their legal framework. Finally, Part V surveys alternative international law approaches for an integrated, regional, protected-areas system to achieve the region's stated goal of preserving an “effective …

A Model Wetlands Protection Ordinance: Legal Considerations, Mary Jane Angelo

Mary Jane Angelo

Many counties in Florida are currently in the process of developing new wetlands protection ordinances, or revising old ones. While public policy supports strict regulation of activities in wetlands, many counties are reluctant to adopt restrictive ordinances because of the potential for large damages awards if the regulations are later found to be temporary takings. Recent Supreme Court case law has upheld the payment of compensation as an appropriate remedy for overly restrictive land use regulations compounding the fears of local governments. This paper summarizes the legal implications of a Model Wetlands Protection Ordinance developed by the author. In particular, …

Redressing The Failure Of Environmental Law To Protect Birds And Their Habitat, Mary Jane Angelo, Anthony J. Cotter

Mary Jane Angelo

The Audubon Report indicates that the forty-seven bird species occupying grassland habitats may be at the greatest risk. This category has the highest proportion of species at great risk of extinction. The risk of extinction is also high for shrubland birds. Most shrublands are degraded, and 107 bird species reside in shrubland habitat. Twelve species are of high conservation concern and twenty-four are of moderate concern. One hundred sixty-four avian species occupy woodland habitats. Sixteen of those species are of high concern and another twenty-eight are of moderate concern. For woodland species, the Audubon Report established a declining trend for …

The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth

Sara Smyth

This article examines whether Canadian environmental law and policy could serve as a model for cyber crime regulation. A wide variety of offences are now committed through digital technologies, including thievery, identity theft, fraud, the misdirection of communications, intellectual property theft, espionage, system disruption, the destruction of data, money laundering, hacktivism, and terrorism, among others. The focus of this Article is on the problem of data security breaches, which target businesses and consumers. Following the Introduction, Part I provides an overview of the parallels that can be drawn between threats in the natural environment and on the Internet. Both disciplines …

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Scott Shackelford

Although the atmosphere and cyberspace are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders. Moreover, “[m]illions of actors affect the global atmosphere[,]” just as they do the Internet. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem affecting the entire world, but one in which the benefits are dispersed and the harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a relatively small number of nations even …

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

Developing An International Carbon Tax Regime, Steven Specht

Steven Specht

As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Foreword, Jeff Brax, Peter S. Menell

Peter Menell

Introduces a series of articles on court cases about environmental and natural resources law.

Finding The Adequate Legal Framework For The Deployment Of Ocean Renewable Energy Through Area-Based Management, Xiao Recio-Blanco

Xiao Recio-Blanco

The world runs on electricity, but its global distribution is uneven and incomplete. The lack of access to electricity denies some people the most basic benefits, from healthcare and sanitation to security and economic development.

To increase access to electricity, most developing nations have relied on traditional sources of energy, namely fossil fuels, and the extension of a central electrical grid. Scholars and specialized International Organizations suggest that the implementation of renewable energy technologies through small-to-mid scale grid projects could be a reliable alternative. However, renewable energy technologies must overcome three formidable hurdles: low reliability, uneven availability, and the high …

A Glimpse Into The Realpolitik Of Federal Land Planning, In Comparative Context With The Mysterious Nlupa And The Czma, Zygmunt J.B. Plater

Zygmunt J.B. Plater

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals. This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered, …

Addressing Human Rights Abuses: Truth Commissions And The Value Of Amnesty, Naomi Roht-Arriaza, Peter Schey, Dinah Shelton

Naomi Roht-Arriaza

No abstract provided.

The Committee On The Regions And The Role Of Regional Governments In The European Union, Naomi Roht-Arriaza

Naomi Roht-Arriaza

No abstract provided.