Law Commons^™

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 …

Harnessing The Power Of Information To Protect Our Public Natural Resource Legacy, Alyson Flournoy, Heather Halter, Christina Storz

Alyson Flournoy

In practice, our laws have proven unequal to the lofty objectives of preserving a legacy of public natural resources for our children or achieving sustainable use of these resources. There are many factors that contribute to this shortfall, but inherent inadequacies in the design of these statutes cannot be overlooked as an important determinant. Despite the statutes' broadly stated aspirations toward sustainability and protection of the interests of future generations, only a handful of these statutes include strong and enforceable mandates for sustainable resource use. Many of these statutes accord natural resource-management agencies broad discretion to balance and permit a …

Building An Environmental Ethic From The Ground Up, Alyson Flournoy

Alyson Flournoy

Over the last twenty years there has been a remarkable theoretical flourishing in the field of environmental philosophy, with the development of biocentric ethics, animal rights theories, deep ecology, ecofeminism, modified utilitarianism, moral pluralism and theories drawing on numerous religious and cultural traditions. These theories explore the intellectual and moral causes for the environmentally destructive practices of the dominant western industrial and economic culture, and propose alternatives that might avoid these consequences. This symposium raises a worthy question: to what extent have these theories had practical impact on environmental law and policy. I come to this question as a lawyer …

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 …

Global Environmental Constitutionalism, Erin Daly, James May

Erin Daly

No abstract provided.

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

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.

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

Robert Percival

No abstract provided.

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It 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 …

Assessing The Legal Toolbox For Sea Level Rise Adaptation In Delaware: Options And Challenges For Regulators, Policymakers, Property Owners, And The Public, Kenneth Kristl

Kenneth T Kristl

Sea level rise is a real and growing issue in the State of Delaware. Over the next 90 years, a significant percentage—between 8 and 11 percent—of Delaware is at risk of being inundated. The threat of inundation has the potential to trigger reactions from some property owners that will seek to protect their interests. Thousands of these resulting individual, ad hoc decisions and non-decisions will make it difficult to carry out a unified strategy to adapt to the massive economic and geographic impacts sea level rise will likely cause in the State. It therefore behooves regulators, policy makers, property owners, …

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 …

Allocating Responsibilities For Environmental Cleanup Liabilities Through Purchase Price Discounts, Kenneth Kristl

Kenneth T Kristl

No abstract provided.

Evolution Of U.S. Climate Policy, John Dernbach, Robert Altenburg

John C. Dernbach

No abstract provided.

State Initiatives, David Hodas

David R. Hodas

Every state in the United States has adopted laws or policies to address climate change, either explicitly or indirectly through energy regulation, transportation-related initiatives, or energy building codes. Innovative state laws and policies have proven remarkably effective in reducing GHG emissions both quantitatively and as a percentage of state GDP. Broadly speaking, states understand that climate change is a global phenomenon that must be addressed nationally and internationally. Inevitably much GHG emission reduction and adaptation to the adverse consequences of climate change falls on states to implement because of their local powers to regulate utilities, land use, building codes, transportation, …

Analysis Of The Mechanisms To Control The Fulfillment Of The Eu Sustainability Criteria For Biofuels In Directive 2009/28/Ec, (Part Ii), Evgenia Pavlovskaia

Evgenia Pavlovskaia

The article analyzes mechanisms established to control the fulfillment of the EU sustainability criteria for biofuels that were presented in Directive 2009/28/EC. The article is the continuation of the research started in the work Pavlovskaia, E. (2013) “Controlling the Fulfillment of the EU Sustainability Criteria for Transport Biofuels”, which was published in RELP 4/2013. The conducted analysis is grounded in the opinions of the leading researchers in the environmental energy studies. The results of the article highlight that there are difficulties to achieve the desirable quality of control when the EU sustainability criteria are implemented. It is pointed out that …

The Future We Want And Constitutionally Enshrined Procedural Rights In Environmental Matters, James May, Erin Daly

Erin Daly

No abstract provided.

Mechanisms To Control The Fulfillment Of The Eu Sustainability Criteria For Transport Biofuels In Directive 2009/28/Ec, Evgenia Pavlovskaia

Evgenia Pavlovskaia

To function efficiently, a framework in environmental law should contain certain mechanisms or supplementary elements that facilitate the implementation and enforcement of environmental regulations, for example such mechanisms and elements that answer for the control and supervision of the legislated requirements. Appropriately organized control mechanisms are important for a legal framework to function as it has been aimed for and to fulfill its purposes. The present article is focused on the analysis of the mechanisms chosen to control the fulfillment of the European Union (EU) sustainability criteria for transport biofuels, which have been presented in Directive 2009/28/EC. The analysis is …

The Eu Policy For Sustainable Transport Biofuels And Directive 2009/28/Ec From A Legal Perspective, Evgenia Pavlovskaia

Evgenia Pavlovskaia

The enforcement and implementation of separate aspects of sustainable development and environmental sustainability can be challenging and innovative due to the complexity of this task. Appropriate policy and legal approaches and tools can be needed for this purpose. In this article, the European Union (EU) experience of developing the framework for sustainable transport biofuels and special structural elements for its enforcement are highlighted and analyzed. The central legal acts in this area, including Directive 2003/30/EC, Directive 2009/30/EC and Directive 2009/28/EC are explored. Advantages and disadvantages of the EU approach to sustainable transport biofuels are discussed. Suggestions for the future development …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan