Law Commons^™

Contesting Risk, Precaution And Legitimacy: A Case Study Of Lafarge, Savitri Vasanta Gordian

LLM Theses

This thesis examines debates about the precautionary principle in a tribunal and judicial review proceeding where environmental groups and individuals challenged a proposal to burn tires and other non-traditional fuel sources at a cement plant in Ontario, Canada. Chapter 1 explores scholarship on the precautionary principle and outlines the unique analytical contributions offered by administrative constitutionalism theory. Chapter 2 sets out the case study methodology employed by the author. Chapter 3 explains the legislative context. In chapters 4 through 9, each participant’s arguments are analyzed in relation to the two paradigms of administrative constitutionalism: Rational-Instrumentalist and Deliberative-Constitutive. This thesis establishes …

Restoration Rx: An Evaluation And Prescription, Alyson C. Flournoy

Alyson Flournoy

In this introductory article, I explore what ethics, science, economics, and law suggest about the value of restoration. These themes -- the questions and challenges posed by ethics, science, economics, and law -- resonate throughout the Articles in this Symposium. Drawing on the presentations given at the Symposium and the literature on environmental restoration, this article reviews some of the major questions that science and ethics pose for restoration, as well as the challenges posed by the economic and legal contexts within which environmental restoration occurs. After a brief comment on the definition of restoration, this article addresses the challenges …

Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy

Alyson Flournoy

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

Alyson Flournoy

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes. This effort …

In Search Of An Environmental Ethic, Alyson C. Flournoy

Alyson Flournoy

A preliminary analysis of several core environmental provisions suggests that the mix of values embedded in our environmental statutes is substantially similar to the values found in the common law and non-environmental statutes. That is, the environmental statutes tend to reflect human concerns that predate any dawning of environmental awareness -- with only a modest introduction of new values or reasons for caring that are uniquely attributable to concern for the human relationship to the environment. If this is true, it seems to undermine a tenet of the public debate. It may call into question the very naming of these …

How Courts Can Prevent Excess Emitters From Using Bankruptcy As A Forum To Avoid California Ab 32’S Allowance Deductions, Mohammed Tehrani

The Journal of Business, Entrepreneurship & the Law

This paper identifies bankruptcy as a forum in which entities that exceed their emissions limit might be able to avoid the accompanying allowance deduction. Specifically, an entity might be able to sell its assets free and clear of its allowance deduction liabilities through Section 363 to a new company comprised of the same actors. Part II contrasts which liabilities can be discharged through a Chapter 11 plan and which can be avoided through a free and clear sale under Section 363. Part III analyzes whether allowance deductions could be discharged through a Chapter 11 plan or avoided through a free …

Sustainability As A Means Of Improving Environmental Justice, Patricia E. Salkin, John C. Dernbach, Donald A. Brown

Patricia E. Salkin

This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice. The article first explains a basic but often unrecognized truth about environmental policy: environmental pollution and degradation, sooner or later, harms humans. Both sustainable development and environmental justice respond to this problem, though in somewhat different ways. Sustainable development, however, suggests a broader set of tools to address this problem than are often employed for environmental justice. The article shows how four broad approaches — more and better sustainability options, law for sustainability, visionary …

Constitution And Pollution: Federalism At Work, David R. Hodas

David R. Hodas

No abstract provided.

Vulnerability And Power In The Age Of The Anthropocene, Angela P. Harris

Washington and Lee Journal of Energy, Climate, and the Environment

Feminist legal theorist Martha Fineman has suggested that recognition of universal human “vulnerability” should be the starting point for thinking about the state’s obligations to its citizens. This Article argues that Fineman’s concept of vulnerability is valuable for situating political and legal theory within a concern for the natural world. We live in what some scientists have dubbed the Anthropocene—an age in which our collective behavior has serious implications for the flourishing of all life on earth. The concept of “ecological vulnerability” recognizes that humans are vulnerable not only because they age, become ill, and die, but because their survival …

Ferc Anti-Manipulation Enforcement And The Barclays Proceeding: What Factors Should Regulated Entities Consider Before Deciding To Follow Barclays' Path To Federal Court?, Matthew Hale

Washington and Lee Journal of Energy, Climate, and the Environment

Energy regulation is not a new topic, but after the Enron scandal, Congress made significant changes. The changes were embodied in the Energy Policy Act of 2005. One major change was to FERC's ability to hand down penalties for market manipulation. Recently, FERC has been aggressively enforcing its power and anticipates anti-manipulation enforcement will be a point of emphasis in the future. The first entity to challenge FERC's power in federal court is Barclays. The Barclays case, other recent enforcement actions, and the regulations FERC has promulgated provide a guide to regulated entities about how and when they should challenge …

Water You Waiting For? Balancing Private Rights And Public Necessity In The South Atlantic Wetlands, Alison Leary

Washington and Lee Journal of Energy, Climate, and the Environment

A healthy and robust network of wetlands protects coastal communities from storm damage caused by hurricanes. Unfortunately, development pressures threaten wetlands along the South Atlantic coast, the region most susceptible to an increased risk of climate change induced hurricanes. If these wetlands are not protected from destruction, coastal communities will be left without a buffer against flooding, storm damage, and sea level rise. In addition to putting the public at large in physical danger, significant environmental justice concerns accompany the failure to protect coastal wetlands. In order to protect these ever-diminishing resources, federal and state law makers have enacted regulatory …

Fracking Preemption Litigation, James K. Pickle

Washington and Lee Journal of Energy, Climate, and the Environment

Fracking is not a new technology, but it only recently came to the forefront of energy industry news. Fracking’s recent fame has been both positive and negative. Fracking proponents have lauded the economic and environmental benefits of the process. They cite the process’ ability to extract formerly inaccessible oil and natural gas, which reduces the U.S.’s demand for foreign oil and natural gas and reduces the use of coal. In contrast, fracking opponents state fracking damages the environment by diluting drinking water with harmful chemicals, generating emissions, and creating general nuisances for communities. They believe fracking’s harmful impacts clearly outweigh …

Foreword, David N. Cassuto

Pace Environmental Law Review

The overlap between animal law and environmental law arises because the two disciplines are fundamentally linked. One cannot talk about the environment without also discussing the nonhuman sentient beings that populate it. Indeed, as I shall discuss shortly, one of the most vexing issues for me— as a scholar working in both fields—involves my ongoing attempt to address the historical tension between the two disciplines. This volume of the Pace Environmental Law Review (PELR) marks an important step on the path toward resolving those tensions and moving environmental law forward. That path will not always be smooth, nor will it …

Global Environmental Law At A Crossroads: Introduction, Robert V. Percival, Jolene Lin, William Piermattei

Robert Percival

No abstract provided.

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project.' The court also decided two cases under the Clean …

Options For Adaption To Climate Change, Richard L. Ottinger, Pianpian Wang, Kristin M. Motel

Elisabeth Haub School of Law Faculty Publications

In order to tackle climate change, the Intergovernmental Panel on Climate Change (“IPCC”) provided a portfolio of measures: mitigation, adaptation and constant research. Although Article 10 of the Kyoto Protocol underlined the importance of adaptation, adaptation to climate change had been obtained limited attention in the early negotiations of climate talks. In 2010, Cancun Session of Conference of Parties (“COP”) of the United Nations Framework Convention on Climate Change (“UNFCCC”) highlighted the equal importance of adaptation just as mitigation. Since then, increasing attention has been drawn to adaptation practice by the international society. Typically, adaptation can be broken down into …

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Book Gallery

This is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the …

Dynamic Forest Federalism, Blake Hudson

Washington and Lee Law Review

State and local governments have long maintained regulatory authority to manage natural resources, and most subnational governments have politically exercised that authority to some degree. Policy makers, however, have increasingly recognized that the dynamic attributes of natural resources make them difficult to manage on any one scale of government. As a result, the nation has shifted toward multilevel governance known as “dynamic federalism” for many if not most regulatory subject areas, especially in the context of the natural environment. The nation has done so both legally and politically—the constitutional validity of expanded federal regulatory authority over resources has consistently been …

Lessons From A Lawyer’S Life, Leslie Carothers

Elisabeth Haub School of Law Faculty Publications

The author, scholar-in-residence at Pace Law School, received the 2013 ABA Award for Distinguished Achievement in Environmental Law and Policy. A pioneer in the early years of environmental protection, she expands in this space on her remarks in accepting the honor, drawing insights for today’s environmental professionals.

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

The Future Of Wilderness Management, Peter A. Appel

Presentations and Speeches

This is a presentation by Professor Peter A. Appel on April 11, 2014, at a symposium entitled "The Wilderness Act at 50" sponsored by the Lewis and Clark Law School. Please click here to view the presentation.

The Precautionary Principle In The Colombian Constitutional Jurisprudence: Scientific Uncertainty And Selective Omissions [En Español], Daniel A. Monroy, Camilo E. Ossa

Daniel A Monroy C

En el presente artículo se propone hacer una lectura crítica al principio de precaución, buscando profundizar, de manera específica, algunas cuestiones que minan el equilibrio del principio como instrumento guía para la toma decisiones de quien corresponde tomarlas. Así, el artículo está estructurado en dos partes, (i) por un lado se aborda la cuestión teórica, desarrollando la concepción que, en la doctrina, se tiene frente al principio, teniendo en cuenta dos aspectos esenciales como son: las implicaciones que supone afronta la “incertidumbre científica”, elemento fundamental del principio; y, la defensa de la tesis según la cual en muchos casos la …

Unringing The Bell: Time For Epa To Reconsider Its Greenhouse Gas Endangerment Finding, David Yaussy, Elizabeth Turgeon

West Virginia Law Review

No abstract provided.

Water Quality Standard Setting Under The Clean Water Act: Is It Nimble Enough To Avoid Wasteful Spending On The Wrong Goals, Christopher B. Power, Jennifer J. Hicks

West Virginia Law Review

No abstract provided.

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Anti-Waste, Michael Pappas

Michael Pappas

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

UF Law Faculty Publications

Climate change adaptation 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, fifty-state survey of water allocation law and its …

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

San Diego Journal of Climate & Energy Law

This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …

Carbonite Legal Conflict In California, Steven Ferrey

San Diego Journal of Climate & Energy Law

This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …