Law Commons^™

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly

James R. May

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

Constitutional Law And The Future Of Natural Resource Protection, James R. May

James R. May

This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …

Why Pedestrian-Friendly Street Design Is Not Negligent, Michael E. Lewyn

Michael E Lewyn

[to be published at University of Louisville Law Review] In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials’ “Green Book”, has generally favored the construction of such high-speed streets, and transportation planners fear that if …

The Rising Tide Of Climate Change: What America’S Flood Cities Can Teach Us About Energy Policy And Why We Should Be Worried, Joshua P. Fershee

Joshua P Fershee

To provide a model for assessing the current and likely responses to climate change risks, this Article considers two of America’s worst flood disasters—in Grand Forks, North Dakota, and New Orleans, Louisiana— and applies the same rationale to critical climate change issues facing the nation today. This Article, written by a current resident of Grand Forks and a former New Orleans resident, begins with a background on climate change and related policy initiatives. Next, it considers the flood of 1997 in Grand Forks, which caused more than 50,000 people to abandon their homes. The development of the flood preparations, the …

The Intersection Of Constitutional Law And Environmental Litigation, James R. May

James R. May

The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …

Stakeholder Reaction To Emissions Trading In The United States, The European Union, And The Netherlands, Bryant Walker Smith

Bryant Walker Smith

As a contribution to the debate over market-based environmental regulation, this article examines the reaction of stakeholders to cap-and-trade programs proposed and/or implemented in the United States, the European Union, and the Netherlands for industrial emissions of certain pollutants. Those pollutants include nitrogen oxides (NOX), sulfur dioxide (SO2), mercury (Hg), and greenhouse gases such as carbon dioxide (CO2). For the purpose of the article, stakeholders include environmental groups, regulators, and particularly industry.

The broad conclusion, to which the remainder of the article provides context, is straightforward: Industry dislikes regulation. It strongly dislikes redundancy. It loathes uncertainty. Even emitters that have …

Is Nafta A Good Model For China?: Lessons From Mexico And The United States, Carmen G. Gonzalez

Carmen G. Gonzalez

In response to skyrocketing food prices, the global financial crisis, and the degradation of farm lands due to urbanization and industrialization, China has placed rural development at the top of its political agenda. China’s renewed emphasis on rural development is taking place against a backdrop of global efforts to reduce trade barriers in the agricultural sector. This article uses the North American Free Trade Agreement (NAFTA) as a case study on the complex ways that trade policy affects domestic efforts to protect the environment and promote rural development. The objective is to draw lessons from the experiences of the United …

Biofuels, Subsidies, And Dispute Settlement In The Wto, Bryant Walker Smith

Bryant Walker Smith

The first WTO panels to tackle a biofuels dispute under the Agreement on Subsidies and Countervailing Measures will navigate a murky sea of conflict, gridlock, and uncertainty that the subsidies agreement did not contemplate and that the failed Doha round did not resolve. This article charts these waters. It identifies both the values that the panels will confront and the interpretive tools that they will wield. It further argues that dispute settlement may become the primary driver of an otherwise stagnant regime, and it sketches three competing visions for protecting the “legally binding security of expectations” that underscores that regime.

The Human Right To A Green Future: Environmental Rights And Intergenerational Justice (Book Review), Darla W. Jackson

Darla W. Jackson

No abstract provided.

Emissions Reduction Tax Credit Policy Initiative: Leadership From A Round Table, Beau James Brock

Beau James Brock

A power point presentation of a pro-active solution to emissions reduction for our state. It is a result-oriented incentivized emission reduction program.

The Emerging Constitutional Challenge Of Climate Change: India In Perspective, Deepa Badrinarayana

Deepa Badrinarayana

India’s rapidly growing economy naturally demands increasing energy needs from the industrial scale down to the personal. Mindful of potential negative impacts of economic development, India is making efforts to encourage growth while preserving and protecting the environment and human rights. India’s Integrated Energy Policy sets out the roadmap for how the country plans to achieve the balance among development, environmental protection, citizens’ rights, energy security, and a host of other priorities and concerns. Though ambitious and broad in scope, the Policy may prove inadequate in mitigating environmental impacts of development, and thus inadequate in balancing India’s needs, particularly in …