Law Commons^™

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA),the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act and …

Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski

Adam J. Sulkowski

This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …

The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary

James R. May

This article explores how scientific and engineering principles are inexorably linked to the regulation of water. Scientists and engineers first discovered the link between disease and water sources in the mid-19th century. Over the years, scientists and engineers have led the way to identifying water quality problems and their causes. These discoveries have directly contributed to the scope of water regulation in the United States and elsewhere. In addition, changes in water quality regulation have dictated the need for increasingly sophisticated water treatment technologies and engineers have been at the forefront of the development of these water control technologies. This …

Wild Rice: The Minnesota Legislature, A Distinctive Crop, Gmos, And Ojibwe Perspectives, Rachel Elena Durkee Walker, Jill Doerfler

Rachel Elena Durkee Walker

No abstract provided.

Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann

Ryan M Seidemann

Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …

Overview Of Environmental Criminal Investigations, Beau James Brock

Beau James Brock

Power point presentation overview of Louisiana Department of Environmental Quality Criminal Investigation Division investigative guidelines and procedures.

"Negligence In The Air?" Should "Alternative Liability" Theories Apply In Lead Paint Litigation?, Richard O. Faulk, John S. Gray

Richard Faulk

This article examines various theories of alternative liability and the circumstances, policies and limitations under which they were created and expanded. It then specifically examines the application of “market share” liability to the manufacturers of lead pigment currently being sued by governmental entities under theories of public nuisance. Finally, it demonstrates how these theories are unworkable in the context of the lead paint public nuisance litigation. Viewed in the proper perspective, it is time to stop the descent of American jurisprudence down the “slippery slope” of alternative liability—lest the uncontrolled descent lead to a precipitous fall into an irrational and …

Earth Jurisprudence A Pathfinder, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Fine Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

Fine-Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

The Emergence Of Global Environmental Law, Tseming Yang

Tseming Yang

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have increasingly become internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems across the world. A number of trends, such as globalization and international development aid efforts, have shaped the global rise of environmental law. The result is the emergence of a shared set of legal principles and norms regarding the environment, such that one can arguably describe it as a common body of …

The Case For Prudential Standing, Joshua L. Sohn

Joshua L. Sohn

This article argues against current standing doctrine, under which plaintiffs must satisfy a variety of constitutional and non-constitutional (i.e., "prudential") requirements in order to sustain a federal lawsuit. Instead, this article contends that all standing requirements should be deemed prudential. There are several reasons for this. First, the text of the Constitution and the history of its drafting provide no support for the allegedly constitutional standing requirements. Second, when the Supreme Court has sought to justify the “constitutional” standing requirements over the years, it has repeatedly relied on prudential justifications. For instance, the Court has noted how the standing requirements …

Are Tenant-Stockholders Entitled To A Charitable Contribution Deduction When A Cooperative Housing Corporation Donates A Preservation Easement?, Martha W. Jordan

Martha W. Jordan

Are Tenant-Stockholders Entitled to a Charitable Contribution Deduction when a Cooperative Housing Corporation Donates a Preservation Easement?

Abstract

Most Tenant-Stockholders of cooperative housing corporations (“CHC”) view themselves as the owners of their apartments, a perception encouraged by the Internal Revenue Code (“Code”), which affords them those tax benefits most commonly associated with home ownership. This article explores the question of whether that perception is accurate with respect to the Code’s tax incentives designed to encourage preservation of historic homes. The Code encourages homeowners to protect their historic homes with preservation easements by allowing a charitable contribution deduction equal to the …

Abandon All Hope Ye That Enter: Title Vi, Equal Protection, And The Divine Comedy Of Environmental Justice, Carlton Waterhouse

Carlton Waterhouse

Dante’s Alighieri’s epic poem the Divine Comedy begins with the journey of the author and his guide Virgil down through the depths of Hell. Early in their trek, Dante finds the phrase “Abandon All Hope Ye That Enter” inscribed above the gates of Hell. Drawing on this classic work, the article analogizes Dante’s passage through Hell with the experience of communities relying on civil rights law to address the disparate racial effects of environmental decisions. The article begins with an examination of the first administrative complaint filed with the Environmental Protection Agency alleging racial discrimination in environmental permitting in 1992 …

To Hell With Kyoto, It’S Time For Something Real!, Altdus Ray Frank

Altdus Ray Frank

The intended gift of clean air and pristine atmosphere through the inception of the Kyoto Protocol was meant to be a measure to protect the environment for not only the present generation, but the future as well. Instead of accepting this gift, humanity has yet again showed its darker side; shredding the ambitious purpose of this document and crucifying its creators as being overzealous, overbearing fools. People must come to terms and understand that environmental catastrophe is the single greatest threat faced by humanity today.

It is time for a new dawn, a new era where, the global community has …

Optimal Federalism Across Institutions: Theory And Applications From Environmental Policies And Health Care, Dale B. Thompson

Dale Thompson

This article presents a framework to analyze federalism based on enactment, implementation, and enforcement institutions. The framework provides a mechanism to determine whether a particular public policy should be conducted at a state or federal level, by examining economies and diseconomies of scale inherent in each of these institutions. This article then applies the framework in a comparison of environmental policies for wetlands and endangered species, and in an analysis of a health care policy. These applications can then serve as guides to legislators and judges in analyzing federalism concerns.

Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela

Jed S Ela

Legal scholars have long argued that informal social norms can solve collective action problems, as long as these problems occur in close-knit groups. This “group knittedness hypothesis” may suggest that social norms, by themselves, will not be able to solve the world’s largest collective action problem: anthropogenic climate change. Yet recent scholarship has taken the group knittedness hypothesis too far, suggesting that any attempt to manage social influences in large, loose-knit groups is likely to be relatively ineffective.

In fact, social norms can shape individual behavior even in loose-knit groups, and climate policies that ignore norms may miss important opportunities …

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

The Ghost In Our Genes: Ehical And Legal Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

The Role Of Community Values In Wind Energy Development: Exploring The Benefits And Applications Of Community Wind For Reducing Local Opposition To Wind Energy Systems, Amanda Vaccaro

Georgetown Law Student Series

Worldwide, wind energy generation is growing rapidly as a cleaner and less invasive alternative to traditional fossil-fuel energy sources. Yet, in the United States, the advancement of wind energy has been stunted by three factors: (1) the uncertainty of the federal Production Tax Credit; (2) the lack of transmission lines connecting wind projects to electricity grids; and (3) enduring local cultural and aesthetic objections to wind turbines. Frustrated with the imbalanced allocation of costs and benefits imposed by most wind energy projects, some individuals and municipalities have deployed zoning laws, nuisance claims, or environmentalist arguments to discourage wind energy development …

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 …

Cercla's Wooden Iron: The Contribution Counterclaim, Alfred R. Light

Alfred Light

No abstract provided.

Evangelizing Climate Change, Albert Lin

Albert C Lin

Any effective response to climate change must address greenhouse gas (GHG) emissions from individuals, who are responsible for nearly one-third of total annual emissions. A leading proposal for doing so, developed by Michael Vandenbergh and Anne Steinemann, advocates the disclosure of information about an individual’s emissions, resulting harms, and steps that can be taken to reduce emissions. Providing information on individuals’ contribution to climate change will be important in countering common misconceptions that individual activities do not matter to the environment. Such proposals, however, give insufficient attention to the role of personal values. Values matter to efforts to change individual …

The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Jorge E. Vinuales

Jorge E Vinuales

The article provides a detailed and up-to-date assessment of the contribution of the International Court of Justice (ICJ) to the development of International Environmental Law (IEL), including the potential in this respect of the cases currently pending before the Court. The author argues that the ICJ's contribution to IEL can be organized in two main waves of cases. The legacy of the first wave, which covered essentially the Corfu Channel and the Nuclear Tests cases, as well as an important obiter dictum made in the Barcelona Traction case, was the confirmation of previous case-law on transboundary damages as well as …

Homeland Security Challenges Of Global Climate Change, Patrick E. Tolan

Patrick E. Tolan Jr.

The National Defense Authorization Act for Fiscal Year 2008 directs military planners to consider the effects of climate change on national security. This directive is not surprising following a year of increasing concern about global warming and prognostications of the myriad ills that such warming will produce.

Although some excellent articles have recently been published exploring potential overseas consequences to the Department of Defense, this article instead outlines the perhaps even more significant national security threats to the U.S. homeland.

The article takes a three-pronged approach analyzing potential weather effects, refugee issues, and economic consequences that could be prompted by …

Using Patent Law’S Teaching Function To Introduce An Environmental Ethic Into The Process Of Technical Innovation, David L. Booton, Carolyn R. Abbot

David L Booton

This article suggests that patent law be amended so as to demand that applicants disclose, as a condition of grant, the ‘best available technique’ for carrying out the claimed invention. This amendment, it is argued, would give patent law a useful role in promoting sustainable production by providing an incentive to shift production patterns in line with the concept of sustainable consumption and production (SCP). Delivering goods and services with lower environmental impacts is commonly acknowledged as a key component of sustainable development, with national governments and international organisations prioritising the SCP agenda. In recognising the role of patents in …

Combating Global Climate Change In The United States: A Local Approach To A Global Problem, Maureen Atwell

maureen atwell

Global climate change is a growing concern throughout the world, with the United States arguably having more power than any other country to either contribute to or eradicate the problem. The United States produces an estimated twenty five percent of the world’s greenhouse gases, despite having only five percent of the world’s population. Given that the United States is the world’s largest producer of greenhouse gases, any effort in the United States to control the production of greenhouse gases could potentially have a huge impact on the global climate change problem.

The Mouse Roars! Rhode Island High Court Rejects Expansion Of Public Nuisance, Richard O. Faulk, John S. Gray, Thomas R. Bender

Richard Faulk

On July 1, 2008, the Supreme Court of Rhode Island, the smallest state in the nation, gave a loud and mighty roar as it joined the chorus of high courts rejecting attempts to expand the use of the law of public nuisance as a means to sue manufacturers of lawful products. In so ruling, the court acted consistently with the traditional role of judges presiding over common law controversies, and joined a growing list of other state supreme courts that have refused to enlarge the boundaries of this ancient tort.

Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates these five wedges and further organizes strategic energies. This builds on Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” I assert that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world.” The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the country.

Climate Change And The Political Question Doctrine, James R. May

James R. May

No abstract provided.