Law Commons^™

Moonshine To Motorfuel: Tax Incentives For Fuel Ethanol, Roberta F. Mann, Mona L. Hymel

Roberta F Mann

Abstract: Biofuels have been embraced by supporters from President George W. Bush to the Natural Resources Defense Council. Before 1930, the U.S. Treasury focused on shutting down small alcohol producers. After 1978, U.S. energy policy sought to encourage ethanol production to reduce dependence on foreign oil. Federal and state incentives have been credited with increasing ethanol production from 175 million gallons in 1980 to 3.9 billion gallons in 2005. The Internal Revenue Code contains three income tax credits designed to encourage ethanol use: the alcohol mixture credit, the pure alcohol credit, and the small ethanol producer’s credit. The credits, together …

Blanco V. Burton: What Did We Learn From Louisiana's Recent Ocs Challenge?, Ryan M. Seidemann, James G. Wilkins

Ryan M Seidemann

In the aftermath of Hurricanes Katrina and Rita, the State of Louisiana set out to ensure greater protection of its coast. Among the approaches taken by the State was an ambitious law suit against the federal government that aimed to force more meaningful scientific studies of the impacts of Outer Continental Shelf oil and gas activities in federal waters. For years, the State had decried the damaging impacts of these activities on its coast, from oil spills to increased vessel wakes to the cutting of navigation canals through the wetlands. The State believed that the federal government could, and indeed …

Capitalization Of The Nile, Arthur M. Ortegon

Arthur M. Ortegon

No abstract provided.

Re-Examining Natural Resource Damages Under Cercla: Failures, Lessons Learned, And Alternatives, Patrick E. Tolan

Patrick E. Tolan Jr.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposed widespread liability on responsible parties to clean up hazardous releases. In addition to cleanup liability, Congress also included important natural resource damages (NRD) provisions in CERCLA, to restore natural resources that had been injured or destroyed due to a release of hazardous substances.

This article examines lessons learned from NRD litigation to date to explain why a tool with so much potential to benefit the environment has remained underutilized. It also explores the bigger picture, including May, 2007, federal advisory committee proposals to make Natural Resource Damage Assessment …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

Making The Sale On Contingent Valuation, Sameer H. Doshi

Sameer H Doshi

Scholarship and jurisprudence have not seriously considered the question of whether the contingent valuation (CV) technique of monetizing preferences for non-tradeable public goods is consistent with the Daubert standards for scientific evidence. The greatest difficulty is in establishing that CV is testable and has measurable error rates; this problem is consonant with criticisms that economists have leveled at the CV method more generally. Additionally, the “state of the art” of contingent valuation practice has recommended the use of the willingness-to-pay question format for CV, rather than willingness-to-accept. This is misplaced in many cases, particularly in calculating damages in environmental tort …

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig

Robin K. Craig

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …

Depletion-Safe Tuna: Has The Unclos Tribunal Usurped Its Members’ Democracy?, Etan M. Basseri

Etan M Basseri

In 1999 the International Tribunal for the Law of the Sea heard a complaint of fishing violations, with Australia and New Zealand alleging that Japan had exploited the delicate southern bluefin tuna fisheries in violation of the United Nations Convention on the Law of the Sea. Japan responded, and eventually prevailed, with the argument that the dispute was governed by a separate multilateral treaty concerning the tuna species. The issue of jurisdiction was a major issue in the case.

This paper argues that the Tribunal’s formation and operation was and is consistent with democracy. It applies four different critiques of …

Virtual Consumption: A Second Life For Earth?, Albert C. Lin

Albert C Lin

Consumption is at the root of many of the world’s greatest environmental challenges, yet laws or policies that directly address consumption are rare. Virtual worlds such as Second Life offer the intriguing prospect of displacing a substantial amount of real-world consumption without running afoul of the political and economic obstacles that proposals to reduce consumption often face. In the interactive online reality of virtual worlds, players adopt an “avatar” and participate in an electronic world that mirrors the real world in striking ways. As this Article explains, virtual worlds offer opportunities, experiences, and pleasures that satisfy many of the basic …

Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Christiana Ochoa

Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

Bioregional Conservation Means Taking Habitat, Jamison E. Colburn

Jamison E. Colburn

Conservation’s richest innovation in decades has been the conservation easement and, by most accounts, it is still growing in both prevalence and scale. Private actors have used this device to innovate around the gridlock of the public sphere, achieving broad scales with limited capital. But this turn toward private ordering to protect nature has begun revealing some of the possibilities it will foreclose over the long term. With the demand for homes and second homes in rural and “exurban” environments soaring, the price of landscape scale conservation keeps rising, even as more of what is owned is already facing grave …

“Paper Battle On The River Uruguay; The International Dispute Surrounding The Construction Of Pulp Mills On The River Uruguay”, Maria A. Del-Cerro

Maria A del-Cerro

Abstract This Comment explores the legality of the Uruguayan government’s decision to approve the construction of two pulp mill plants on the River Uruguay, and examines the related litigation currently pending before the International Court of Justice, “ICJ”. A review of international watercourse law assists in deciphering the parties’ substantive and procedural obligations under the 1975 Statute of the River Uruguay. The comment argues that Uruguay has fulfilled these obligations, while Argentina has not. The piece recommends that the ICJ resolve the dispute in favor of Uruguay, and adopt a more precise standard for determining when a state has complied …

Rio Grande Designs: Texans’ Nafta Water Claim Against Mexico, Paul Stanton Kibel, Jonathan R. Schutz

Paul Stanton Kibel

No abstract provided.

Law, Environmental Dynamism, And Reliability, David R. Owen

David R Owen

This article examines conceptual frameworks often used to understand and resolve controversies involving scarce and legally protected natural resources. It proposes that those traditional frameworks, though ingrained in legal structures and conventional expectations, fail to adequately address tensions between resource consumption, environmental protection, and the reliability of resource allocation patterns, and thus can induce the adoption of solutions that prove fragile in contexts of environmental uncertainty and change. It then proposes a different conceptual approach capable of facilitating more lasting solutions. The article illustrates the importance of that conceptual shift by analyzing the "CALFED" controversy, an important environmental controversy in …

Protecting The World's Largest Body Of Fresh Water: The Often Overlooked Role Of Indian Tribes' Co-Management Of The Great Lakes, Jacqueline P. Hand

Jacqueline P Hand

During the first years of this century the Great Lakes states and provinces undertook the Annex 2001 negotiation process, which focuses on protecting the largest body of fresh water on the globe from excessive exploitation. The binding compact which resulted between the states, in coordination with a parallel voluntary agreement with the Canadian province of Quebec, is an excellent example of cooperation to protect an important environmental and economic resource. This process was marred by the persistent unwillingness to include the American Indian tribes and Canadian First Nations who have sovereign claims to the Great Lakes. This article discusses the …

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

Punitive Damages And Valuing Harm, Alexandra B. Klass

Alexandra B. Klass

In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court’s current framework …

Another Day Older And Deeper In Debt: How Tax Incentives Encourage Burning Coal And The Consequences For Global Warming, Roberta F. Mann

Roberta F Mann

Coal generates more than half of the electricity in the United States. Civilization has had a love-hate relationship with coal for centuries. Coal usage is both a blessing and a curse. Per unit of energy, coal appears to be the cheapest fuel. But while the nominal price we pay for coal-based energy reflects some of the cost of extracting, processing, transporting, and converting it to energy, it does not reflect the social and environmental costs of coal. Moreover, because coal is subject to tax subsidies, the price does not reflect the entire direct cost of coal. As long as coal …

Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul Stanton Kibel

Paul Stanton Kibel

No abstract provided.

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Erin Ryan

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the “interjurisdictional gray area” that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s “strict-separationist” model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism’s subsidiarity …