Law Commons^™

Strategies For Making Sea-Level Rise Adaptation Tools 'Takings-Proof', Michael Allan Wolf

UF Law Faculty Publications

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This …

Rethinking Sustainability To Meet The Climate Change Challenge, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jona M. Roesler

Journal Articles

This article presents a preliminary effort to capture the dialogue at the Environmental Law Collaborative’s inaugural Workshop. Attendees engaged in the re-conceptualization of sustainability in the age of climate change, premised on evidence that climate change is forcing changes in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. …

Happy Air!: Strengthening The Role Of Administrative Law In Environmental Enforcement, Erica Bourdon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Annecoos Wiersema

Forestry activities account for over 17% of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Convention on Climate Change have been negotiating a mechanism known as REDD – Reducing Emissions from Deforestation and Degradation – to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. Many believe this mechanism will not only mitigate climate change but will also provide biodiversity and forests with the hard international law regime that has so far been missing. These commentators assume REDD will develop into this kind of hard international law regime. They …

Cultivating A Green Political Landscape: Lessons For Climate Change Policy From The Defeat Of California's Proposition 23, Eric Biber

Vanderbilt Law Review

In the fall of 2010, two major political battles over climate change in the United States reached their climax. At the federal level, efforts to enact comprehensive climate change legislation-already in doubt after the Senate refused to consider legislation passed by the House-were terminated for the near future by a landslide win for conservative Republicans, who are overwhelmingly hostile to climate change legislation, in midterm Congressional elections.' At the state level, California voters considered Proposition 23, a ballot initiative that would have effectively repealed the state's comprehensive global warming statute (AB 32, enacted in 2006). Yet despite the fact that …

Climate Change And Water Transfers, Christine A. Klein

Christine A. Klein

Climate change adaption is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, state-by-state survey of water allocation law and its …

Cost-Benefit Analysis And The Precautionary Principle: Can They Be Reconciled?, David M. Driesen

David M Driesen

Conventional wisdom teaches us that cost-benefit analysis (CBA) and the precautionary principle conflict. CBA proponents consider precaution incoherent and irrational, while precautionary principle fans see CBA as a threat to environmental protection. Both sides, however, see these two concepts as conflicting. This Article questions the conventional view. It finds no conflict between the precautionary principle, properly understood, and the mere idea of taking costs and benefits into account in choosing environmental standards. The reasoning underlying this conclusion illuminates both concepts. Having revealed the theoretical possibility of precautionary CBA, it uses a case study of the climate disruption issue to begin …

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatole Boute, Sarah Mccalla, Steve Charnovitz, Liz Whitsitt, Nicholas Rivers

Shi-Ling Hsu

Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio.

This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …

Climate Change Adaptation Chapter: Marshfield, Massachusetts, Joshua H. Chase, Jonathan G. Cooper, Rory Elizabeth Fitzgerald, Filipe Antunes Lima, Sally R. Miller, Toni Marie Pignatelli

Sally Miller

Climate change, understood as a statistically significant variation in the mean state of the climate or its variability, is the greatest environmental challenge of this generation (Intergovernmental Panel on Climate Change, 2001). Marshfield is already being affected by changes in the climate that will have a profound effect on the town’s economy, public health, coastal resources, natural features, water systems, and public and private infrastructure. Adaptation strategies have been widely recognized as playing an important role in improving a community’s ability to respond to climate stressors by resisting damage and recovering quickly. Based on review of climate projections for the …

Localizing Climate Change Law, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

South Africa's Electricity Crisis: The Need To Reconcile Environmental Policy Decisions With International Treaties, Brittany D. Botterill

San Diego Journal of Climate & Energy Law

This Comment examines whether South Africa’s treaty obligations conflict with the requirement of the country’s government to provide electricity to a burgeoning home-owning population. Section II introduces Eskom, South Africa’s largest utility company, which produces most of the electricity used in South Africa and surrounding countries. Section III discusses South Africa’s role in the Southern Africa Power Pool and the additional obligations this membership places on the country. Section IV then examines the controversial loan that South Africa received from the World Bank to assist in building the Medupi coal-fired power plant. Section V illustrates South Africa’s climate change obligations …

There's A Pattern Here: The Case To Integrate Environmental Security Into Homeland Security Strategy, James D. Ramsay, Terrence M. O'Sullivan

Security Studies & International Affairs - Daytona Beach

The time is long overdue to acknowledge that global climate and resource stresses, encompassed by the concept of environmental security (ES), are an increasingly important part of "homeland" security (HS) study and practice, by even the most restricted definitions of HS. Environmental security issues will affect global economic and political stability, US national interests, and the risk of war and terrorism. Just as homeland security encompasses many complex issues and interconnected subfields, environmental security (ES) is interdisciplinary by nature. In essence, ES is an emergent discipline borrowing from a combination of environmental studies — which decades ago integrated environmental science …

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …

Mainstreaming Climate Change Into Public Policy Functions: Legal Options To Reinforce Sustainable Development Of Kenya, Robert Kibugi

Florida A & M University Law Review

No abstract provided.

Good Policy, Good Food: Bringing A Just And Sustainable Food System To All, Mark Winne

Florida A & M University Law Review

No abstract provided.

A Future Submerged: Implications Of Sea Level Rise For South Florida, Giselle Peruyera

Florida A & M University Law Review

No abstract provided.

Climate Change And Its Effect On Indigenous Peoples Of The Southwest, Josh Merrill

American Indian Law Review

No abstract provided.

Government Choices In Innovation Funding (With Reference To Climate Change), Joshua Sarnoff

College of Law Faculty

Huge amounts of money will soon be spent by governments and private entities to develop technology to reduce the costs of climate change mitigation and adaptation, and to deploy new energy and transportation infrastructures. Incredibly, we still lack any good idea of the best means of providing massive amounts of government or private money so as to promote the most innovation and technology diffusion at the lowest cost. This Article seeks to support better analyses of, and decision making regarding, the choices of government innovation-funding mechanisms by discussing the limits of current analyses and providing a taxonomy of such measures. …

Arctic Ice Melt: Emerging Resources, Emerging Issues, The, Thomas Au, Theodore Parran Iii, Jessica Rubin, Jonathan Slomski

Canada-United States Law Journal

No abstract provided.

Land Use And Climate Change: Lawyers Negotiating Above Regulation, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use …

From Dirty To Green: Increasing Energy Efficiency And Renewable Energy In Environmental Justice Communities, Deborah N. Behles

Publications

The stifling summer heat that raged across the nation was difficult for everyone, but one group had a more difficult time than others—those who could not afford to cool their homes. Disparities like these will likely only get worse. Poor communities of color that are already vulnerable and disproportionately impacted by pollution will shoulder a larger burden of climate change impacts. These neighborhoods, often called environmental justice communities, have fewer resources to adapt to the effects of climate change. More measures should be taken to increase the development of renewable energy and energy efficiency in environmental justice communities before the …

Localizing Climate Change Action, Marianne Dellinger

Myanna Dellinger

Localizing Climate Change Action - abstract

Myanna Dellinger

Waiting for national- or supranational-level actors to take substantively effective action against climate change is like waiting for Godot: unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the UNFCCC umbrella yet again demonstrated the failure of action at the international level. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the subnational, substate level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits …

Cool Lawsuits: Is Climate Change Litigation Dead After Kivalina V. Exxonmobil?, Mark L. Belleville

Mark L. Belleville

Can emitters of greenhouse gases (“GHGs”) ever be held liable for harms caused by climate change? That is the limited question this Article addresses. While many commentators saw the Supreme Court’s 2007 decision in Massachusetts v. EPA (“Mass. v. EPA”) as an indication that such claims may receive favorable review, recent decisions suggest that there may be no theory under which the ExxonMobils of the world can be held liable for the effects of climate change. Specifically, in September 2012, the Ninth Circuit Court of Appeals held that a native Alaskan village on the tip of a barrier reef, whose …

The Key Stone In The Carbon Tariff Wall: The Alberta Oil Sands And The Legality Of Taxing Imports Based On Their Carbon Footprint, Mark L. Belleville

Mark L. Belleville

Can one nation—consistent with international trade law—tax imports or otherwise treat them differently based on the CO2 emitted in another country during production of the import? This Article analyzes the General Agreement on Tariffs and Trade (GATT), relevant World Trade Organization (WTO) decisions, and the considerable amount of scholarship regarding Border Tax Adjustments (BTAs) and concludes that such treatment of imports is legally permissible. In early 2013, the European Union (E.U.) will vote on a proposed rule that seeks to classify crude oil coming into E.U. refineries based on “life-cycle greenhouse gas emissions,” including CO2 emitted during extraction. Canada, seeking …

Who Regulates The Smart Grid?: Ferc's Authority Over Demand Response Compensation In Wholesale Electricity Markets., Joel B. Eisen

Law Faculty Publications

This Article argues that Order 745 is both justified under the Federal Power Act (FPA) and important to ensure the transition to a clean energy future. A challenge to Order 745, Electric Power Supply Association v. FERC, is currently pending in the D.C. Circuit. This Article contends that Order 745 should be upheld against this challenge because it fits within FERC's broad authority to regulate the wholesale power markets.

Colonial Property, Private Dams, And Climate Change In Virginia, Jill M. Fraley

Scholarly Articles

Dams have been a significant part of flood prevention and management systems in the United States, dating back to the systematic efforts of the Tennessee Valley Authority and, less systemically, long before that. Dealing with flood management in Virginia presents unique challenges because of a colonial legacy that allows most dams in Virginia to be privately owned. Through a mechanism called King’s Grants, some Virginia landowners hold title not simply to property surrounding a navigable waterway, but also to the soil beneath the river and to dams crossing the river. Such ownership of the soil of large, navigable waterways is …

Third Annual Environmental Law And Justice Symposium Issue: Introduction, Randall S. Abate, Richard D. Schulterbrandt Gragg Iii

Florida A & M University Law Review

No abstract provided.

Introduction To Property, History & Climate Change In The Former Colonies Symposium Special Issue, Jill M. Fraley

Scholarly Articles

None available.

A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan

Faculty Law Review Articles

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …

Expedited Approval Of Energy Projects: Toward Assessing The Forms Of Procedural Relief, Michael B. Gerrard

Faculty Scholarship

If we are to prevent the worst effects of climate change, a major shift in the world’s energy systems will be needed, including the construction of a massive number of clean energy facilities. Under one well-known scenario, this will require — along with many other actions — the construction of 230 wind farms the size of the proposed Cape Wind project in Nantucket Sound; 1,000 large solar generating facilities of about ten square miles each; 1,400 natural gas-fired electric generating stations; 800 carbon capture and sequestration systems at coal-fired power plants; and 850 new nuclear power plants.

The Cape Wind …