Law Commons^™

Harm To Border Irreparable, Sara C. Bronin

Cornell Law Faculty Publications

No abstract provided.

What The Pandemic Can Teach Climate Attorneys, Sara C. Bronin

Cornell Law Faculty Publications

The COVID-19 pandemic has caused more rapid changes to the law than most of us have seen in our lifetimes. These changes have remade, and in many cases severed, our social and economic connections to each other, in ways unprecedented except during war.

As many have argued, climate change is also a dire emergency, requiring an equally sweeping legal response. Rising seas, raging wildfires, and dramatic hurricanes have already destroyed lives and communities. We may be a few years away from irreversible devastation.

Yet we have not seen even a fraction of the legal reforms needed to reverse our march …

Comprehensive Rezonings, Sara C. Bronin

Cornell Law Faculty Publications

Of all powers given to local governments, the power to zone is one of the most significant. Zoning dictates everything that gets built in a locality—and thus effectively dictates all of the key activities that take place within it. Nationwide, most zoning codes were adopted in the first half of the twentieth century. Many, including the zoning codes of New York City and Chicago, were significantly revised in the 1960s. While these codes have been revised piecemeal, just a few American cities have undergone a comprehensive revision: replacing the old code with a completely new one.

A comprehensive rezoning can …

An Ode To Sea Turtles & Dolphins: Expanding Wto’S Mandate To Bridge The Trade-Environment Divide, Geary Choe

Cornell Law Library Prize for Exemplary Student Research Papers

Geary Choe’s ambitious paper showcased a diverse and sophisticated understanding of research in public international law and interdisciplinary sources.

Choe’s paper proposes expanding the World Trade Organization’s mandate to carve out a new exception for trade-restrictive measures in multilateral environmental agreements (MEAs). His process involved analyzing international conventions, WTO panel and appellate body reports as well as non-legal materials written by economists, environmentalists and non-governmental organizations. Choe used that research to examine the historical tension between the competing interests of trade vs. environment and concluded with original proposals of how to reconcile them within the WTO’s legal framework.

Most rewardingly, …

Energy In The Ecopolis, Sara C. Bronin

Cornell Law Faculty Publications

Climate change, resource scarcity, and environmental degradation demand a paradigm shift in urban development. Currently, too many of our cities exacerbate these problems: they pollute, consume, and process resources in ways that negatively impact our natural world. Cities of the future must make nature their model, instituting circular metabolic processes that mimic, embrace, and enhance nature. In other words, a city must be a regenerative city or, as some say, an “ecopolis.” So, how to get there—to ecopolis—from here? In this Comment, I propose a partial answer by focusing on certain legal frameworks that must be reenvisioned to enable the …

The Public Trust: The Law's Dna, Gerald Torres, Nathan Bellinger

Cornell Law Faculty Publications

No abstract provided.

Community-Scale Renewable Energy, Hannah J. Wiseman, Sara C. Bronin

Cornell Law Faculty Publications

As the movement toward cleaner energy has gained momentum within the United States, a growing number of scholars and policymakers have made the case for community-scale renewable energy: mid-sized energy sources supported by resources pooled from several private parties in close geographic proximity. When built and utilized at the community level, these energy facilities may allow for economies of scale that their owners could not achieve working individually. Individual distributed generation, such as solar infrastructure on the roofs of homes, involves high transaction costs and creates relatively small impacts. At the same time, community-scale renewable energy has advantages over large-scale …

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

Like A Nation State, Douglas Kysar, Bernadette A. Meyler

Cornell Law Faculty Publications

Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive …

Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Thomas O. Mcgarity, Douglas A. Kysar

Cornell Law Faculty Publications

This Article highlights the hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were "caused" by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers' hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the …

Discounting, On Stilts, Douglas A. Kysar

Cornell Law Faculty Publications

This paper provides a critical overview of several articles presented at the Intergenerational Discounting and Intergenerational Equity Conference held at the University of Chicago Law School on April 27-28, 2006. First, it demonstrates that conventional normative justifications offered for the use of discounting future costs and benefits for policy analysis in the intergenerational context do not withstand scrutiny. Second, it observes that the compensatory transfers that are sometimes thought to sanitize the cost-benefit procedure in the intergenerational context are deeply problematic, both in their theoretical construction and in their practical adequacy for the tasks they are being deployed to accomplish. …

It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar

Cornell Law Faculty Publications

This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing severe …

Disappearing Acts – Toward A Global Civil Liability Regime For Pollution Damage Resulting From Offshore Oil And Gas Exploration, Kissi Agyebeng

Cornell Law School J.D. Student Research Papers

Civil liability for pollution damage is recognized and firmly established under international law. However, there is no global international treaty that addresses this issue with respect to offshore oil and gas exploration. This may be due partly to the infrequency of the occurrence of offshore oil well blowouts. However, offshore operations represent a constant threat to the marine environment since the risk of a blowout leading to an ecological disaster is ever present. The trend has been the adoption of regional agreements to tackle the issue. However, most of the regional arrangements deal with the issue in a sidelong manner …

Sustainable Development And Private Global Governance, Douglas A. Kysar

Cornell Law Faculty Publications

This Article utilizes recent controversy over Coca-Cola's alleged depletion of groundwater resources in India as a vehicle for exploring competing conceptions of global environmental governance and the role of private actors within them. Initially, it uses the Coca-Cola groundwater situation to identify core substantive and procedural meanings that lurk within the otherwise ingeniously ambiguous concept of sustainable development. Through this exercise, it is shown that - when properly understood - the sustainable development paradigm stands in considerable tension with the premises of market liberalism that drive such political and economic trends as global market integration; privatization and commodification of water …

The Effectiveness Of The Endangered Species Act: A Quantitative Analysis, Martin F.J. Taylor, Kieran F. Suckling, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Population trends for 1095 species listed as threatened and endangered under the Endangered Species Act were correlated with the length of time the species were listed and the presence or absence of critical habitat and recovery plans. Species with critical habitat for two or more years were more than twice as likely to have an improving population trend in the late 1990s, and less than half as likely to be declining in the early 1990s, as species without. Species with dedicated recovery plans for two or more years were significantly more likely to be improving and less likely to be …

Environmental Tribalism, Douglas A. Kysar, James Salzman

Cornell Law Faculty Publications

Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why …

Should The World Trade Organization Incorporate Labor And Environmental Standards?, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Environmental Tribalism, Douglas A. Kysar, James Salzman

Cornell Law Faculty Publications

Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why …

Who Owns The Sky?, Gerald Torres

Cornell Law Faculty Publications

I argue that the public has a current and continuing interest in the air resource. This commonly held interest requires that where the government has sanctioned the private trading of this asset the government must account for the profits of such trades. In short, it is not the government's property to give away. Ancillary benefits associated with cleaner air do not offset the public's interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. This does not discount the government's obligation to protect the resource from predation; it …

The Psychology Of Global Climate Change, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

In its attempt to address the threat of global climate change, society has struggled to reach a consensus regarding the need for preventive measures. Professor Rachlinski describes the threat of global climate change as a unique commons dilemma and explains that various psychological phenomena of judgment render it unlikely that society will be able to respond effectively to the threat. After considering the effects of biased assimilation, loss aversion, and other psychological processes, the author explains that an innovative approach is necessary to properly address the dilemma of global climate change.

Specifically, the author examines the prospect of governmental intervention …

Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver

Cornell Law Faculty Publications

The problem of climate change continues to be an intractable one for policymakers. Uncertainties over the likely costs of climate change as well as over the costs of proposed remedies have hampered the formation of a consensus regarding the best course of action. The principles of tort law provide a useful means of analyzing the problem of climate change, particularly the issue of who should bear the costs associated with its effects. The two major goals of tort law (reducing the costs of accidents and corrective justice) both point towards the appropriateness of placing the costs of climate change on …

Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Product Standards To Protect The Local Environment--The Gatt And The Uruguay Round Sanitary And Phytosanitary Agreement, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.

Reregulation, The Global Environment, And Ignorance Equals Pessimism: A Tory Perspective, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

The Bubble Concept In Water Pollution Control, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Implementing Federal Environment Policies: The Limits Of Aspirational Commands, James A. Henderson Jr., Richard N. Pearson

Cornell Law Faculty Publications

No abstract provided.

Expanding The Negligence Concept: Retreat From The Rule Of Law, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Citizen Suits In The Environmental Field – Peril Or Promise?, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

On Leading A Horse To Water: Nepa And The Federal Bureaucracy, Roger C. Cramton, Richard K. Berg

Cornell Law Faculty Publications

No abstract provided.

The Right To A Decent Environment; E =Mc²: Environment Equals Man Times Courts Redoubling Their Efforts, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.