The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Mark P Nevitt

Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …

Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

What The Frack? How Weak Industrial Disclosure Rules Prevent Public Understanding Of Chemical Practices And Toxic Politics, Benjamin W. Cramer

Benjamin W. Cramer

Hydraulic fracturing, known colloquially as “fracking,” makes use of chemically-formulated fluid that is forced down a gas well at great pressure to fracture underground rock formations and release embedded natural gas. Many journalists, environmentalists, and public health advocates are concerned about what may happen if the fracking fluid escapes the well and contaminates nearby drinking water supplies. This article attempts a comprehensive analysis and comparison of all relevant fracking fluid disclosure regulations currently extant in the United States, and considers whether the information gained is truly useful for citizens, journalists, and regulators. In recent years the federal government and several …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm, Elisabeth D. Mering

Michael Blumm

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The proviso authorizes the U.S. Environmental Protection Agency (EPA) overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual, perhaps unprecedented in environmental law. The exceptional nature of section 404(c) …

Deployment Of Geoengineering By The Private And Public Sector: Can The Risks Of Geoengineering Ever Be Effectively Regulated?, Daniela E. Lai

Daniela E Lai

Geoengineering has been described as any large-scale environmental manipulation designed with the purpose of mitigating the effects of climate change without decreasing greenhouse gas emissions (GHGs). Currently there are no specific rules regulating geoengineering activities particularly if geoengineering is deployed in areas beyond national jurisdiction. This article argues that, in order to mitigate the risks of geoengineering, there needs to be effective regulation of its deployment both in international and domestic law. The risks of geoengineering can only be effectively regulated if there is international cooperation between all levels of governments and private individuals involved in the research and development …

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Julia Johnson

This article explores the reasons why previous attempts at biofuels legislation in the United States have not been successful and focuses upon market-level incentives that drive consumer willingness to purchase biofuels. For the U.S.’s biofuels policies to be more effective, the nation must better employ consumer-side factors and devise policies around promoting biofuels’ ability to compete with conventional fuels. Consumer-side factors include biofuels’ accessibility and pricing, as well as the ease and attractiveness of purchasing alternative energy-powered vehicles. The U.S.’s initiatives have also neither been aggressive enough, nor sufficiently comprehensive, to enable the U.S. to mirror Brazil’s success.

This article …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

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 …

C(R)Ap And Trade: The Brave New World Of Non-Point Source Nutrient Trading And Using Lessons From Greenhouse Gas Markets To Make It Work, Victor B. Flatt

Victor B Flatt

After several decades of improvement, water quality in the United States is getting worse, and the problem is primarily caused by run-off from non-point sources, such as farms and urban development. These non-point sources have never had regulatory mandates in the Clean Water Act, and have proven very difficult to control. With little likelihood of comprehensive statutory changes, the EPA and the states that administer the Clean Water Act have looked to other regulatory means to address this problem. One of the most prominent has been the use of markets in pollution (particularly for nutrient pollution from run-off) to provide …

The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Environmental law and policy conflicts seem to have entered a new phase. The emergence of complex problems such as climate change and of complex technologies such as hydraulic fracturing and genetic modification have created new political and legal schisms that no longer break down predictably along "pro-environment" versus "pro-business" lines. Rather, a new era of skepticism seems to be taking hold in which antagonists spar over the epistemic legitimacy of certain claims made in support of a policy position. Environmental law and policy conflicts thus divide antagonists into two camps: self-styled positivists – scientists (physical, chemical, biological, and social) and …

The Rural Environmental Cadastre (Car) As A Tool For Environmental Regularization In Land Reform Settlements, Lucas Abreu Barroso, Guilherme Viana De Alencar

Lucas Abreu Barroso

2014 marks the 50th anniversary of the Land Statute (Law n. 4,504 / 1964). Enacted at the beginning of the military dictatorship, the Land Statute was the formula found to contain the pressure coming from rural areas which demanded a government policy based on Land Reform. Although designed primarily to distribute land in the Northern Region, after the re-democratization in 1985, peasant movements were present in the five regions of the country, showing that the struggle for land happened nationwide. According to the National Institute for Settlement and Agrarian Reform, by 2013, in Brazil 1,288,444 families were settled in the …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

An Economic Approach To Collective Rights And Their Means Of Supply: The Case Of Right To "The Enjoyment Of A Healthy Environment" And The Right To "Rational Management And Use Of Natural Resources" [En Español], Daniel A. Monroy

Daniel A Monroy C

This paper has two main objectives (i) Demonstrate that the defining characteristic of collective rights related to non-excludable of the benefits derived from the "means" of supply and the material "objects" of rights, is consistent with the microeconomic defining characteristic of so-called "public goods" and "commons " (together we call these as non-excludable resources). On the other hand, (ii) Demonstrate that when we analyze the collective rights as non-excludable resources this aims important omitted challenges by traditional legal doctrine related with the adequate supply of collective rights, this happens because the problems of the -Olsonian- logic of collective action. For …

If You Had A Fundamental Human Right To A Particular Environment, What Would That Look Like?, Carter Dillard

Carter Dillard

Many environmentalists believe that because the earth has in the last several decades become largely a human environment in which pure nature or wild places uninfluenced by humans no longer exist, people ought to abandon the idea of wilderness entirely and do the best they can in a world dominated by humans. That would be a mistake. The idea of nature and wilderness in particular, or of places and things in the world relatively uninfluenced by humans, actually provides the foundation on which to build the international human right to a particular environment that some environmentalists have been looking for. …

Lands Council, Karuk Tribe, And The Great Environmental Divide In The Ninth Circuit, Michael Blumm, Maggie Hall

Michael Blumm

The Ninth Circuit Court of Appeals, the nation’s largest appellate court, with jurisdiction over fifteen judicial districts and 61 million people—almost 20 percent of the nation’s population—spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court’s en banc reviews do not include all twenty-nine judges but instead only panels of eleven. Thus, en banc panels can reflect the kind of diversity of opinion they aim to reduce.

Recently, the …

Wasting Away: America’S Dysfunctional System Of Low-Level Radioactive Waste Disposal, Jacob Berman

Jacob Berman

This paper argues that the current system for disposing of civilian low-level radioactive waste in the United States is broken, and that large-scale reform is necessary to adequately handle the volume of waste expected from further nuclear decommissioning. Between 1947 and 1980, low-level radioactive waste disposal was the sole responsibility of the federal government. The Low-Level Radioactive Waste Policy Act of 1980 upended this system, devolving responsibility for civilian low-level radioactive waste disposal to the states. Devolution has been a disaster. For the last thirty years, state governments have been beset by Not In My Back Yard syndrome, as project …

The Public Trust In Wildlife, Michael Blumm, Aurora Paulsen

Michael Blumm

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine—sovereign ownership of wildlife—is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should …

Vietnam And The United States: Mining Pollution And The Tragedy Of The Commons, Heather Whitney

Heather Whitney

This paper will discuss Vietnam’s mining pollution problem, and its efforts to foster clean water create and an environmental protection framework within its Constitution, environmental laws and regulations. This paper will also juxtapose these issues with the United States’ regulatory mechanisms for mining and water quality protection, which in comparison are complex and well-rounded, but nonetheless still have regulatory and enforcement loopholes that prevent proper water quality protection. In Vietnam, like most developing countries, regulations and policy statements place socioeconomic growth above water quality protection that frustrates these efforts. Environmental and water quality laws and regulations in Vietnam have not …

Dam Breaching In The Pacific Northwest: Lessons For The Nation, Michael Blumm

Michael Blumm

Over the past dozen years, a number of large dams in the Pacific Northwest have been removed in an effort to restore riverine ecosystems and dependent species like salmon. These dam removals provide perhaps the best example of large-scale environmental remediation in the 21st century. This restoration, however, has occurred on a case-by-case basis, without a comprehensive plan. Yet the result has been to put into motion ongoing rehabilitation efforts in four distinct river basins: the Elwah and White Salmon in Washington and the Sandy and Rogue in Oregon. In all, nine significant dams have been removed, and four more—in …

Pluralism And The Environment Revisted: The Role Of Comment Agencies In Nepa Litigation, Michael Blumm

Michael Blumm

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial …

Transparency Between Norm, Technique And Property In International Law And Governance—The Example Of Corporate Disclosure Regimes And Environmental Impacts, Larry Cata Backer

Larry Cata Backer

This article considers the role of transparency in corporate governance, focusing on the regulatory forms in international environmental law and policy. It is divided into five sections. After this Introduction, Section II considers conventional sources of international environmental law for its transparency effects on the environmental impacts of business activity, looking at both hard law and soft law frameworks. While there is a substantial and growing body of public international hard and soft law frameworks in environmental governance, much of that is focused on the role of states and the information and participation rights of affected communities in the political …

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith Rizzardi

Keith Rizzardi

Lawyers have an ethical duty to advise their clients on moral, economic, social and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

William Boyd

Health, safety, and environmental regulation in the United States is saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a specific, and relatively short timeframe; roughly, between the mid 1970s and the early 1980s—a time of hard looks and regulatory reform. Prior to this time, …

Mapping, Modeling, And The Fragmentation Of Environmental Law, David R. Owen

David R Owen

In the past forty years, environmental researchers have achieved major advances in electronic mapping and spatially explicit, computer-based simulation modeling. Those advances have turned quantitative spatial analysis—that is, quantitative analysis of data coded to specific geographic locations—into one of the primary modes of environmental research. Researchers now routinely use spatial analysis to explore environmental trends, diagnose problems, discover causal relationships, predict possible futures, and test policy options. At a more fundamental level, these technologies and an associated field of theory are transforming how researchers conceptualize environmental systems. Advances in spatial analysis have had modest impacts upon the practice of environmental …

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity to …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …