Law Commons^™

Toward A Precautionary Principle: Regulatory Inadequacies Under The Ffdca And Fqpa In Addressing Cumulative Body Burdens And Chemical Synergies, Maximilian Leeds

Maximilian Leeds

This paper analyzes regulatory inadequacies in addressing environmental exposure as a likely source of disease, with a particular focus on chemicals within the food supply. Section I explores the statutory powers of the EPA, FDA, and USDA in setting and enforcing tolerance levels for chemicals in food, and discusses deficiencies in the current approach. Section II discusses the EPA’s understanding and enforcement of an individual’s exposure to multiple chemicals, both cumulatively and synergistically, and delves into science’s increasing understanding of how such exposure affects human health. Section III provides recommendations for regulatory changes, and especially emphasizes the adoption of a …

Collaborative Governance For Climate Change Mitigation: Implementing A Co-Regulation Mechanism For Managing The Private Sector’S Contribution To Climate Change, Anastasia M. Telesetsky

Anastasia M Telesetsky

For the past two decades, international climate policy has been handled as a matter for State to State deliberation. Non-state actors have played at best marginal roles in making and implementing international policy. This paper argues that climate change remains an intractable transnational problem because State to State deliberations failed to acknowledge that both climate mitigation and adaptation require ongoing collaborative governance with non-State actors to shift normative behavior. This paper proposes implementing an international co-regulation strategy as a collaborative governance mechanism in order to improve the legitimacy and accountability of intergovernmental meetings. This paper specifically proposes in the context …

Multidimensional Governance And The Bp Deepwater Horizon Oil Spill, Hari Osofsky

Hari Osofsky

This Article explores the governance challenges posed by the BP Deepwater Horizon oil spill, and proposes strategies for developing more inclusive, responsive institutions to help meet them. It begins by analyzing the incident through five core dimensions—vertical, horizontal, direction of hierarchy, cooperativeness, and public-private—to demonstrate the multi-level, multi-actor interactions taking place in offshore drilling and oil spill regulation. It then explains the ways in which the complex interactions in these dimensions translate into four core governance challenges: scientific and legal uncertainty, simultaneous overlap and fragmentation, the difficulties of balancing efficiency and inclusion, and inequality and resulting injustice. The Article next …

Climate Change And Sea Level Rise - German Law And The Kivalina Case, Will B. Frank

Will B. Frank

A case like Kivalina seeking damages from 24 of the biggest US oil and power companies for their alleged contributionto global warming has not yet been brought before the German Courts. The article deals with the the question if such a claim could be based on § 1004 of the German Civil Code (BGB) and analyses the rules of proving causality in distant and additive damage cases.

The Essential And Growing Role Of Legal Education In Achieving Sustainability, John Dernbach

John C. Dernbach

This article suggests that law schools need to play a leading role in the national and global effort to achieve sustainability, including the effort to address climate change. The article first describes the various drivers for sustainability in law schools. Clients are increasingly demanding that their lawyers 'walk the talk,' as many businesses and corporations already are. The universities that provide an institutional home for most law schools are also adopting sustainability policies and practices that influence their law schools. Within the legal profession, the American Bar Association, as well as many state and local bar associations, have adopted a …

Regulatory Impact Analyses Of Environmental Justice Effects, Spencer Banzhaf

Spencer Banzhaf

Recently, the US EPA has pledged to incorporate environmental justice considerations "into the fabric" of its rulemaking procedures. But finding an appropriate way to incorporate environmental justice considerations into policy-making has been a procedural challenge since President Clinton issued Executive Order 12898 over 15 years ago. In particular, environmental justice concerns tend to be overshadowed by efficiency considerations as embodied in benefit-cost analysis. Yet at the same time, both Presidents Obama and Clinton have issued orders to incorporate distributional and equity considerations into benefit-cost analysis, as well as the standard efficiency considerations.

This article argues that the environmental justice and …

Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor

Rena I. Steinzor

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is under pressure to adopt the British “safety case” system, which requires the preparation of a facility-specific plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. …

Climate Change, Sustainable Development, And Ecosystems: 2010 Annual Report, John Dernbach

John C. Dernbach

No abstract provided.

Can The Esa Address The Threats Of Atmospheric Nitrogen Deposition? Insights From The Case Of The Bay Checkerspot Butterfly, Zdravka Tzankova, Dena Vallano, Erika Zavaleta

Zdravka Tzankova

The Bay Checkerspot Butterfly reached its threatened status largely as a result of habitat loss through development. The species now benefits from the habitat pro- tection powers of the Endangered Species Act, yet the biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition. Driven by combustion and agricultural emissions, such deposition is an important cause of change in ecosystem structure and function, including potentially critical changes in the remaining Bay Checkerspot Butterfly habitat. We use the Bay Checkerspot Butterfly case to examine whether the Endan- gered Species Act, as it currently …

Best Brief -- Intervenor, Pace National Environmental Law Moot Court Competition 2011, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

Creating The Law Of Environmentally Sustainable Economic Development, John Dernbach

John C. Dernbach

This article argues that a key to sustainability is redirecting the law of economic development. From a historical perspective, sustainable development is an effort to integrate environmental protection and restoration with development. As a result, it is not possible to fully understand sustainable development unless we understand what development means. While that term is reasonably well understood at the international level, our closest analogue in the United States is not development in general but rather economic development. A great many recently enacted laws that move the United States toward sustainability can be understood as economic development laws. By understanding these …

Learning From The Global Trade Regime: A Proposal To Help Ameliorate Climate Change By Giving The International Court Of Justice Universal Advisory Jurisdiction, Andrew Strauss

Andrew L. Strauss

No abstract provided.

Who’S Afraid Of The Supremacy Clause? State Regulation Of Air Pollution From Offshore Ships Is Upheld In Pacific Merchant Shipping Association V. Goldstene, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

The "Cash For Clunkers" Program: A Sustainability Evaluation, Marianne Tyrrell, John Dernbach

John C. Dernbach

This article describes and evaluates the effectiveness of the Consumer Assistance to Recycle and Save Act of 2009, also known as the “Cash for Clunkers” legislation. Under this law, Congress authorized persons trading in older and less fuel-efficient motor vehicles for newer and more fuel-efficient vehicles to receive a voucher worth up to $4,500 toward the purchase of the new vehicle. The article reviews various studies assessing the effectiveness of this legislation based on economic, social, and environmental criteria. Because these criteria are consistent with the goals of sustainable development, the legislation provides important lessons for future efforts to achieve …

Environmental Laws And Sustainability: An Introduction, John Dernbach, Joel Mintz

John C. Dernbach

In this introduction to the special issue of Sustainability on environmental laws and sustainability, we attempt to synthesize key lessons from the issue’s ten substantive articles. These lessons involve the use of law to achieve integrated decision-making, the use of pre-existing laws to foster sustainability, the centrality of sub-national governments in achieving sustainability, the background law of unsustainable development, the growing importance of climate change, the need to use law to protect and restore ecological integrity, the importance of judicial review and nongovernmental organizations, the need to translate sustainability into specific legal principles, the challenge of creating an appropriate national …

International Law And Sustainable Energy: A Portrait Of Failure, David Hodas

David R. Hodas

Despite energy’s critical role in achieving nearly sustainable development and in mitigating climate change goal, internationally, sustainable energy remains a homeless orphan. In May 2007, after years of preparatory work that was thought to have produced consensus on fundamental sustainable energy policies and principles, the Commission on Sustainable Development met at CSD-15 to adopt a concrete set of specific policies and actions to make the world’s energy system more sustainable and accessible to the world’s poor. Tragically, the CSD-15 not only failed to produce agreement on any new ideas, but the pre-existing consensus on basic principles dissolved. Internationally, not a …

Energy Efficiency And Conservation: New Legal Tools And Opportunities, John Dernbach, Robert Mckinstry, Darin Lowder

John C. Dernbach

Many new and ambitious energy efficiency and conservation laws are being enacted at all levels of government—and with greater financial incentives than provided previously. These innovations are intended to overcome or minimize market barriers such as principal-agent problems, information and transaction costs, high internal discount rates, and up-front capital needs that discourage cost-saving investments. Innovations such as public-private partnerships also require significant legal input and creativity for the client to reap the often remarkably large energy and cost savings. This article reviews a range of these tools, especially financial legal mechanisms, that could help significantly reduce U.S. energy consumption.

Book Review: Crucial Issues In Climate Change And The Kyoto Protocol: Asia And The World (Koh Kheng-Lian, Lye Lin-Heng And Jolene Lin (Eds)), David Hodas

David R. Hodas

No abstract provided.

Cleaning Up Our Rivers, Lakes, And Streams: Water Quality And Widener, Kenneth Kristl

Kenneth T Kristl

No abstract provided.

The Nuclear Option: Promotion Of Advanced Nuclear Generation As A Matter Of Policy, Seth P. Cox

Seth P. Cox

A flexible and adaptive energy policy is crucial to the continued progress of the American economy. Energy fuels all economic activity, and policy determines the manner in which energy is exploited. The most salient considerations regarding energy, sustainability, affordability and independence, shape the policy and direction of America. Energy policy must incorporate these concerns, while remaining receptive to changed valuation.

Appreciation of the relative weights of sustainability, affordability and independence is fluid. Over the last several years sustainability became a prominent issue. As the evidence mounts, it is more and more difficult to deny that current patterns of energy use …

The Legal-Political Barriers To Ramping Up Hydro (Symposium), Dan Tarlock

Dan Tarlock

No abstract provided.

The Rise Of U.S. Food Sustainability Litigation, Stephanie Tai

Stephanie Tai

This article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation: challenges to CAFOs and challenges to the use of genetically modified organisms (GMOs) in the food system. These areas were chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.

The article begins by describing the sustainable food movement, including how the movement fits in with factors that sociologists use to …

The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez

Carmen G. Gonzalez

The corporate-dominated, fossil-fuel dependent model of agricultural production has produced chronic undernourishment, an epidemic of obesity and diet-related diseases, and unprecedented ecological devastation. In May 2010, the Universidad Interamericana in Mexico City hosted an international conference on The Global Politics of Food: Sustainability and Subordination. Sponsored by Latina and Latino Critical Legal Theory, Inc. and by Seattle University School of Law, the conference took place under the auspices of the South-North Exchange on Theory, Culture and Law (SNX), a yearly gathering of scholars in the Americas that seeks to foster transnational, cross-disciplinary and inter-cultural dialogue on current issues in law, …

An Environmental Justice Critique Of Comparative Advantage: Indigenous Peoples, Trade Policy, And The Mexican Neoliberal Economic Reforms, Carmen G. Gonzalez

Carmen G. Gonzalez

The free market reforms adopted by Mexico in the wake of the debt crisis of the 1980s and in connection with the North American Free Trade Agreement (NAFTA) have jeopardized the physical and cultural survival of Mexico’s indigenous peoples, increased migration to the United States, threatened biological diversity in Mexico, and imposed additional stress on the environment in the United States. Despite these negative impacts, NAFTA continues to serve as a template for trade agreements in the Americas. Unless this template is fundamentally restructured, future trade agreements may replicate throughout the Western hemisphere many of the economic, ecological and social …

Recent Developments In The Missouri River Basin: Conflict, Cooperation And Paradox, John Davidson

John Davidson

No abstract provided.

Don't Tread On Me! Greenhouse Gases Must Never Choke American Freedom, Beau James Brock

Beau James Brock

This article examines: (1) the core of our American belief in freedom and the relationship between dutiful citizen and responsible government; (2) greenhouse gas policy making dictated by the EPA and the ubiquitous state of global economic conflict; and (3) the fundamental principle our Nation must ascribe to throughout this debate is we will best serve our most vulnerable citizens not through elitist dictates, but by open debate.

Regulatory Overlap, Overlapping Legal Fields, And Statutory Discontinuities, Todd S. Aagaard

Todd S Aagaard

Lawmakers and scholars alike criticize regulatory overlap on the ground that giving administrative agencies overlapping jurisdiction leads to duplicative or conflicting regulation which is inefficient and unduly burdensome. This Article challenges this orthodox account of regulatory overlap through examination of six case studies in which the Environmental Protection Agency and the Occupational Safety and Health Administration have managed their jurisdictional overlap so as to create regulatory synergy rather than dysfunction. Although this Article is not the first to argue that regulatory overlap may improve the effectiveness of regulatory programs, the case studies examined here highlight two important aspects of regulatory …

Negotiating Federalism, Erin Ryan

Erin Ryan