Law Commons^™

Municipal Options To Address Nuisance Flooding Of Coastal Highways In Rhode Island, Marine Affairs Institute, Roger Williams University School Of Law, Olivia Thompson, Read Porter

Sea Grant Law Fellow Publications

Sea level rise and more powerful storm surges and erosion have increased flooding in low-lying coastal areas of Rhode Island. These impacts affect coastal highways, requiring municipalities to make difficult choices about whether and how to maintain or abandon their infrastructure. This fact sheet helps cities and towns understand their legal duties, options, and potential liabilities when considering the future of threatened coastal infrastructure. By using the information in this fact sheet, municipalities can make informed decisions about the consequences of their infrastructure investments. After providing background on nuisance flooding associated with sea level rise, this fact sheet describes Rhode …

Oil Wealth And Gender In Political And National Belonging, Caroline M. Bosworth

Student Publications

Oil-based economies drive a connection between national identity and support for patriarchal belonging. Oil wealthy nations ensure that both men and women are excluded from political participation, and thus have a weak civil society. Through entrenching the population in the benefits of the oil economy, rentier states affirm that there is a high level of national identity. A weak civil society and the patriarchal nature of the oil wealth disenfranchises men and women, thus increasing women’s belief in the effectiveness of a male leader.

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

Specialization Trend: Water Courts, Vanessa Casado-Pérez

Faculty Scholarship

Definition of property rights is not useful unless there is an enforcement system, either public or private, that backs it up. While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked. Water is becoming scarcer and conflict is rising. As a result, the need for an efficient and fair enforcement system is more necessary than ever due to climate change.

Given the complexity of water law and the backlog in the judicial system, introducing specialization in the resolution of water cases …

Betting On Climate Policy: Using Prediction Markets To Address Global Warming, Gary M. Lucas Jr, Felix Mormann

Faculty Scholarship

Global warming, sea level rise, and extreme weather events have made climate change a top priority for policymakers across the globe. But which policies are best suited to tackle the enormous challenges presented by our changing climate? This Article proposes that policymakers turn to prediction markets to answer that crucial question. Prediction markets have a strong track record of outperforming other forecasting mechanisms across a wide range of contexts — from predicting election outcomes and economic trends to guessing Oscar winners. In the context of climate change, market participants could, for example, bet on important climate outcomes conditioned on the …

Proposed State Offshore Oil & Gas Legislation And Resolutions: 2017-18, Marine Affairs Institute, Roger Williams University School Of Law, Megan Betts

Sea Grant Law Fellow Publications

No abstract provided.

How International Oil Companies Could Assist Greece To Achieve The Sustainable Development Goals: A Conversation Starter, Alexandra Sdoukou, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper wishes to be a timely contribution towards a fruitful debate among stakeholders; it urges International Oil Companies (IOCs) to examine how the critical Sustainable Development Goals (SDGs) for Greece can be integrated into their core business so that the oil and gas industry can contribute to the country’s sustainable growth.

Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.

Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to:

• Understand company and government obligations related to a company …

Reputational And Integrity Due Diligence On Investors, Kroll, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Before deciding to invest, companies and investors will perform background research on the uncertainties and risks associated with the proposed investment. For natural resource projects, there are risks around geology, market and price developments, construction delays, operations, regulatory changes, political disruptions, and reputational issues. Feasibility studies and due diligence assessments aim to better understand these risks, reduce uncertainty where possible and be better prepared to manage them.

Governments too should understand the risks that are associated with the proposed investments and get to know the investors before entering into negotiations or signing contracts. This is particularly important for long-term agreements …

Adaptive Management For Ecosystem Services At The Wildland-Urban Interface, Robin Kundis Craig, J.B. Ruhl

Utah Law Faculty Scholarship

Managing the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars have fully embraced the dynamism, uncertainty, and complexity of the WUI — that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the factor that rampant wildfire is …

Measuring The Nepa Litigation Burden: A Review Of 1,499 Federal Court Cases, John C. Ruple, Kayla Race

Wallace Stegner Center for Land, Resources, and the Environment publications

We reviewed thirteen years of National Environmental Policy Act (“NEPA”) litigation data summarizing 1,499 federal court opinions to assess:

(1) How frequently NEPA compliance efforts result in litigation;

(2) how agency NEPA decisions fare in court; and

(3) how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions.

We found that only one in 450 NEPA decisions were litigated and that the rate of NEPA challenges declined during the thirteen-year study period. We noted an inverse relationship between the amount of time spent on Environmental Impact Statement (“EIS”) preparation and the likelihood that an EIS would …

Savior Of Rural Landscapes Or Solomon's Choice? Colorado's Experiment With Alternative Water Transfer Methods For Water (Atms), Lisa Dilling, John Berggren, Jennifer Henderson, Douglas Kenney

Publications

This article focuses on the emerging landscape for Alternative Transfer Methods (ATMs) in Colorado, USA. ATMs are developing within a legal landscape of water rights governed by prior appropriation law, growing demand for water in urban centers driven by population growth, and an aging rural farm population whose most valuable asset may include senior water rights. Rural-urban water transfers in the past have been linked to the collapse of rural economies if pursued to the extreme extent of “buy-and-dry,” where water rights were purchased outright and permanently removed from agricultural land (e.g. Crowley County). This article focuses on the emerging …

How Science Has Influenced, But Should Now Determine, Environmental Policy, Jan G. Laitos

Sturm College of Law: Faculty Scholarship

This Article makes the case that for environmental laws to succeed, they must reflect and conform to the universal scientific truths of nature. The mantra for policymakers is simple: successful environmental laws, as well as the policies that structure and cabin these laws, should adhere to the fundamental laws of the natural world and our biosphere. What are these universal truths? What laws, or rules, do physical, biological, and chemical systems all follow? Scientists have begun to unravel nature’s secrets, the principles which all natural phenomena obey, and which comprise nature’s master plan. This Article urges that our environmental policies …

Call For Inputs: Climate Change And Human Rights: A Safe Climate, Sara L. Seck, Lisa Benjamin

Articles, Book Chapters, & Popular Press

There is now global agreement that human rights norms apply to the full spectrum of environmental issues, including climate change. The previous Special Rapporteur on human rights and the environment, Mr. John Knox, developed Framework Principles on Human Rights and the Environment that set forth three sets of duties that engage both States and businesses: procedural obligations; substantive obligations; and obligations relating to those in vulnerable situations.

The current Special Rapporteur on human rights and the environment, Mr. David Boyd, is working to provide additional clarity regarding the substantive obligations relating to a range of elements that are essential to …

Impacts Of The Changing Ocean-Sea Ice System On The Key Forage Fish Arctic Cod (Boreogadus Saida) And Subsistence Fisheries In The Western Canadian Arctic—Evaluating Linked Climate, Ecosystem And Economic (Cee) Models, Nadja S. Steiner, William W. L. Cheung, Andres M. Cisneros-Montemayor, Helen Drost, Hakase Hayashida, Carie Hoover, Jen Lam, Tessa Sou, U. Rashid Sumaila, Paul Suprenand, Travis C. Tai, David Vanderzwaag

Articles, Book Chapters, & Popular Press

This study synthesizes results from observations, laboratory experiments and models to showcase how the integration of scientific methods and indigenous knowledge can improve our understanding of (a) past and projected changes in environmental conditions and marine species; (b) their effects on social and ecological systems in the respective communities; and (c) support management and planning tools for climate change adaptation and mitigation. The study links climate-ecosystem-economic (CEE) models and discusses uncertainties within those tools. The example focuses on the key forage species in the Inuvialuit Settlement Region (Western Canadian Arctic), i.e., Arctic cod (Boreogadus saida). Arctic cod can be …

Advancing Research For The Management Of Long-Lived Species: A Case Study On The Greenland Shark, Jena E. Edwards, Elizabeth Hiltz, Franziska Broell, Peter G. Bushnell, Steven E. Campana, Jørgen S. Christiansen, Brynn M. Devine, Jeffrey J. Gallant, Kevin J. Hedges, M. Aaron Macneil, Bailey C. Mcmeans, Julius Nielsen, Kim Præbel, Gregory B. Skomal, John F. Steffensen, Ryan P. Walter, Yuuki Y. Watanabe, David Vanderzwaag, Nigel E. Hussey

Articles, Book Chapters, & Popular Press

Long-lived species share life history traits such as slow growth, late maturity, and low fecundity, which lead to slow recovery rates and increase a population’s vulnerability to disturbance. The Greenland shark (Somniosus microcephalus) has recently been recognized as the world’s longest-lived vertebrate, but many questions regarding its biology, physiology, and ecology remain unanswered. Here we review how current and future research will fill knowledge gaps about the Greenland shark and provide an overall framework to guide research and management priorities for this species. Key advances include the potential for specialized aging techniques and demographic studies to shed light …

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

Faculty Law Review Articles

There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

Aba Rpte Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements And Federal Tax Law, W. William Weeks

Articles by Maurer Faculty

Authors' Synopsis: In October 2015, the American Bar Association's Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation easements. This Report is the culmination of the Task Force's work. Part I of the Report is an Executive Summary of the Task Force's recommendations. Part II provides the background necessary to understand the Task Force's recommendations. Part III briefly sets forth the Task Force's comments on the Tax Cuts and Jobs Act of 2017 as it relates …

Rethinking Public Land Use Planning, Mark Squillace

Publications

The public land use planning process is broken. The land use plans of the principal multiple-use agencies—the United States Forest Service and the Bureau of Land Management (“BLM”)—are unnecessarily complex, take too long to complete, monopolize the time and resources of public land management agency staffs, and fail to engage the general public in any meaningful way. Moreover, the end result is too often a plan that is not sufficiently nimble to respond to changing conditions on the ground, a problem that appears to be accelerating due to climate change.

It might seem easy to chalk up these problems to …

Waters Of The State, Joseph Regalia, Noah D. Hall

Scholarly Works

This article explores the "waters of the state" in three parts. First, we look to what the states say for themselves about water in their constitutions and statutes. This is not intended as a comprehensive survey, but rather a thorough sampling of the diversity in how states assert themselves over territorial water. There is a tremendous range in the scope of state assertions, in terms of both hydrologic (what waters are included) and legal scope (what states can and should do with water). The diversity and distinctions turn out to be of limited importance, though, at least on the ground. …

Trickster Law: Promoting Resilience And Adaptive Governance By Allowing Other Perspectives On Natural Resource Management, Robin Kundis Craig

Utah Law Faculty Scholarship

The Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms "trickster law." Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the "pluralism" component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other …

Atomizing The Clean Water Act: Ignoring The Whole Statute And Asking The Wrong Questions, Robert W. Adler, Brian House

Utah Law Faculty Scholarship

When attempting to resolve difficult issues of statutory construction involving complex statutes, courts sometimes focus on individual words and phrases without evaluating how they fit within the text and structure of the whole statute. We call this “atomization” of the statutory text. Judges have fallen into this trap in construing the Clean Water Act (CWA) and other lengthy, complex federal environmental statutes. That tendency contributes to ongoing confusion about the scope and coverage of the CWA. During the 2019-2020 Term, the U.S. Supreme Court will resolve a circuit split in the most recent line of cases exhibiting this tendency. Courts …

Warming Oceans, Coastal Diseases, And Climate Change Public Health Adaptation, Robin Kundis Craig

Utah Law Faculty Scholarship

Climate change is changing the world’s ocean in three important ways. First, the ocean is warming. Second, sea levels are rising. Finally, ice is melting. All of these changes have important implications for human disease risk, ranging from a fairly prosaic increase in harmful algal blooms to the science-fictionish re-release of deadly microbes from long ago.

In the United States, coastal adaptation efforts to date have been sluggish. Many uncertainties attend climate change’s effects on the ocean, particularly with regard to sea-level rise and ice melting. In addition, the time scales involved are generally long, outside of the planning ken …

The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris

Articles

Across the United States, government agencies and energy developers are looking to agricultural land for development of renewable energy. One attraction of agricultural lands is that they are already relatively ecologically impaired compared with the previous solar development sites in the California and Arizona desert that have been a major source of concern for many environmental groups-and subject to expensive mitigation requirements under the Endangered Species Act. Renewable energy development pressures are accelerating the existing loss of agricultural land, heightening concerns about food security and the economic viability of agricultural communities. California farmland is at the center of this conflict. …

Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa

Faculty Scholarship

On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what …

The Public Trust Doctrine, Outer Space, And The Global Commons: Time To Call Home Et, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Space exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy. Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …