Law Commons^™

B.Y.O.B. (Bring Your Own Bag): A Comprehensive Assessment Of China’S Plastic Bag Policy, Mary Beckwith O'Loughlin

Mary Beckwith O'Loughlin

On June 1, 2008, the Chinese government enacted a nationwide policy prohibiting all stores from freely distributing plastic bags to customers. This new policy requires that, henceforth, all retailers must charge a nominal fee for plastic bags and that those purchasable bags must meet certain quality requirements to improve their potential reusability. These retailers, which include everything from grocery and clothing stores to farmer’s markets and food stalls, individually determine how much to charge for their bags and get to keep all related proceeds. The policy is an effort to mitigate the “white pollution” that is choking China’s landscape, as …

New Directions In Environmental Justice, Randall S. Abate, Moderator, Robert Abrams, Moderator, Marcia Allen Owens, Moderator

Lectures and Presentations

The inaugural Environmental Law and Justice Symposium will feature an overview of the latest international, national, regional, state and local developments in environmental justice.

The Future Of Animal Law: Moving Beyond Preaching To The Choir, Megan A. Senatori, Pamela D. Frasch

Journal of Legal Education

No abstract provided.

Brazil's Launch Of Lender Environmental Liability As A Tool To Manage Environmental Impacts, Bianca Zambão

University of Miami International and Comparative Law Review

Due to an emerging Brazilian doctrine of environmental liability, lenders now face the prospect of lawsuits that seek remediation of, or compensation for, environmental damages resulting from their borrowers' activities. Unprecedented judicial decisions (based on a strict, joint and several environmental liability for lenders) broad standing, and ongoing initiatives of the government portray financial institutions as the best target to pursue environmental protection in the country. That scenario, however, may represent a detour from the imperative improving the functionality of the public administration. This article examines how legal actors are shaping Brazil's environmental law enforcement and the extent to which …

Developing An Ecological Social Justice Framework For Ocean Energy Technologies: Case Studies From The Phillipines, Jay Batongbacal

PhD Dissertations

Unless subjected to skeptical and conscious scrutiny, environmentally-friendly ocean energy technologies can become Trojan machines of social inequity due to the subtle re-organizing influences of technologies on culture and the society. Environmental laws that promote or regulate ocean energy technologies can act as Trojan legal regimes in the absence of a framework for assessing and anticipating their adverse impacts on social justice. Environmental justice is inadequate for this task, so an alternative framework is proposed: ecological social justice, drawn from the Third Worlds perspective of sustainable development as equitable sharing. Though overshadowed by the prevalent notion of sustainable development as …

Piecemeal Legislative Proposals: An Inappropriate Approach To Managing Offshore Oil Drilling, Lynn S. Sletto

Golden Gate University Law Review

The election of George W. Bush in 2000 as the forty-fourth President of the United States, a perceived pro offshore oil-drilling President), was followed by several legislative proposals aimed at limiting or ceasing oil drilling off the coast of most of the states. This comment discusses why these legislative proposals are unworkable in light of the nation's goals for managing offshore oil drilling. Nonetheless, many of these legislative proposals highlight the coastal state's specific concerns, as well as, improvements to the offshore oil leasing decision-making process to alleviate those concerns.

Erroneous And Unauthorized Revisions To The California Environmental Quality Act: 1998 Ceqa Revisions Violate Legislative Intent And Contradict Judicial Holdings, Kristin Henry

Golden Gate University Law Review

This Comment will summarize the CEQA review process to which California agencies must adhere. Next, Part III of this Comment will examine San Joaquin Raptor/Wildlife Rescue v. Stanislaus and Kings County Farm Bureau v. Hanford, two landmark California appellate court cases that have interpreted the CEQA review process prior to the amended regulations. Included in Part III A is an analysis of how lead agencies have treated cumulative impacts in the past during the CEQA review process and an explanation of the recent amendments purporting to codify that interpretation. In Part III B, this Comment will explain the recent amendments …

Environmental Justice Enforcement Requires Reassessment Under The Equal Protection Clause, Title Vi Of The Civil Rights Act, And Environmental Statutes, Kenneth Owen

Golden Gate University Law Review

This article will suggest what is required to prevail under the purposeful discrimination standard under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Interestingly, no equal protection environmental justice case or Title VI action has been presented to a jury charged with determining the factual issue of intent. The author will next explore the possibility of winning environmental justice cases under the citizen suit provisions that are part of most environmental statutes. Lastly, the author will suggest arguments to possible defenses that might be raised by defendants.

Environmental Law - Resource Investments, Inc. V. U.S. Army Corps Of Engineers, Marcelin E. Keever

Golden Gate University Law Review

In Resource Investments Inc. v. United States Army Corps of Engineers, the United States Court of Appeals for the Ninth Circuit considered whether section 404 of the Clean Water Act (CWA) authorized the United States Army Corps of Engineers (Corps) to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfIll on a wetlands site. The Court held that when a proposed project affecting a wetlands area is a solid waste landfill, the Environmental Protection Agency (EPA), rather than the Corps, will have permit authority under the Resource Conservation and …

Environmental Law - Northcoast Environmental Center V. Glickman, Lisa Braly

Golden Gate University Law Review

In Northcoast Environmental Center v. Glickman, the United States Court of Appeals for the Ninth Circuit held that a less deferential standard of "reasonableness" applied to its review of legal questions that determined the applicability of the National Environmental Policy Act (NEPA,). Thus, when no facts are in dispute, an agency's decision not to prepare an Environmental Impact Statement (EIS)"will be upheld unless it is unreasonable. When facts are in dispute, however, the Supreme Court decision of Marsh v. Oregon Natural Resources Council, which applied an "arbitrary and capricious" standard of review, controls. The Ninth Circuit also decided that district …

Environmental Law - City Of Auburn V. U.S. Government, Lisa Braly

Golden Gate University Law Review

In City of Auburn v. U.S. Government; the United States Court of Appeals for the Ninth Circuit held that the plain language of the Interstate Commerce Commission Termination Act (lCCTA) preempts state and local permitting laws regarding railroad operations. The court reasoned that since the ICCTA gave the Surface Transportation Board (Board), a federal agency, exclusive jurisdiction over certain railroad matters, railroad companies were required to follow only federal permitting laws, not those of a state or city. Thus, Burlington Northern Railroad is not subject to the environmental permitting laws of the city of Auburn. The court also held that …

A Deeper Shade Of Green: The Evolution Of Cuban Environmental Law And Policy, Fredric Evenson

Golden Gate University Law Review

This article provides a brief history and general overview of Cuba's environmental legal system describing the contemporary framework of environmental laws, and the governmental and non-governmental institutions responsible for its creation, implementation, and enforcement. To illustrate how Cuba's environmental regulatory scheme is designed 'to operate, focus is directed on environmental requirements of foreign investment projects and the related fields of environmental licensing, environmental impact assessment, state environmental inspection, and civil responsibility. This article concludes that Cuba's new framework environmental law and revised institutional structure are significant expressions of the government's desire to protect the environment. The recent changes in these …

Too Late In The Game: How Ballot Measures Undercut Ceqa, Jon Rainwater, Susan Stephenson

Golden Gate University Law Review

Because the regulatory guidelines for the California Environmental Quality Act ("CEQA") contain an exemption for "the submittal of proposals to a vote of the people," both projects avoided environmental analysis after the board of supervisors and the electorate had given a green light for the projects. In this article, we will examine the possibility that the ballot measure exemption functions as a loophole that weakens the goal of early meaningful, analysis that is at the heart of CEQA. To. put the exemption in a specific environmental and political context, we will look at some of the environmental impacts of the …

Environmental Law - Mccarthy V. Thomas: Are States Bound When Approval Of An Sip Is Merely Conditional?, Edward P. Murphy

Golden Gate University Law Review

In McCarthy v. Thomas, the Ninth Circuit held that the Clean Air Act (hereinafter "CAA") authorizes the Environmental Protection Agency (hereinafter "EPA") to conditionally approve a State Implementation Plan (hereinafter "SIP"), thereby binding the states even if later EPA actions do not specifically reference the earlier conditionally approved provisions. In McCarthy, the SIP which included transportation measures for Pima and Maricopa Counties in Arizona, had never been fully approved by the EPA, but had received a conditional approval. Since Arizona had difficulty complying with the CAA, the SIP was revised several times before the EPA granted full approval. The final …

Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

Environmental Law, M. Lynn Haggerty, Cherie P. Shanteau

Golden Gate University Law Review

No abstract provided.

Discharge Of Rcra Injunctive Claims In Bankruptcy: The Seventh Circuit's Decision In United States V. Apex Oil Co., Inc., Diana E. Rdzanek

Seventh Circuit Review

In its recent decision in United States v. Apex Oil, Inc., the Seventh Circuit considered whether an injunction under an environmental statute, even one that requires significant expenditures on the part of the debtor, could ever be a "right to payment" under the Bankruptcy Code, which would allow the claim to be discharged in the bankruptcy. The Seventh Circuit answered in the negative. Since the Supreme Court's decision in Ohio v. Kovacs, the federal circuits have disagreed on the discrete issue of when a claim arises for purposes of bankruptcy with respect to clean-up injunctions under environmental laws. …

The Development Of Environmental Governance Regimes: A Chinese-Inspired Reconstruction, Roda Mushkat

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

The challenge of protecting the biosphere has both salient academic and policy dimensions. On the academic side, persistent efforts have been made in the field of socio-legal studies to enhance the understanding of the complex processes involved, in the domestic arena and on the international front, in the formation and transformation of the elaborate institutional arrangements designed to contribute to this goal. The scholars engaged in those efforts have pursued divergent paths, but one school of thought has moved decisively to the forefront. China’s experience does not cast doubt on its relevance, or even prominence, yet it suggests that multi-pronged …

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the …

Property Rights On The New Frontier: Climate Change, Natural Resources Development, And Renewable Energy, Alexandra B. Klass

Alexandra B. Klass

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control …

Book Review Of The Rise Of The Conservative Legal Movement: The Battle For The Control Of The Law, By Steven M. Teles, Jacob Heilbrunn

Journal of Legal Education

No abstract provided.

A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn

Lea B Vaughn

Abstract: Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self aggrandizing manipulators of various social and environmental causes. A more nuanced examination of “cause lawyering” reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of “cause lawyering” limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that …

Practical Guide To Environmental Law And Regulatory Compliance In Texas, Richard Faulk, John S. Gray

Richard Faulk

History teaches us that the natural development of our land and resources has been a contentious undertaking. Until recently, the issues that today make up the corpus of “environmental law” were not to be found in environmental cases, legislative journals or in environmental law treatises. Instead, they were found under the rubrics of property, constitutional law, contract and the common law. Today, environmental law consists of a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that attempt to work together in unison to regulate how we (individuals, governmental entities and businesses) interact with the rest of …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), 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 School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

Present At The Creation: The 1910 Big Burn And The Formative Days Of The U.S. Forest Service, Michael Blumm

Michael Blumm

This is a book review of Timothy Egan's "The Big Burn: Teddy Roosevelt and the Fire That Saved America."

How Many Environmental Plaintiffs Are Still Standing?, Andrew D. Dorn

Seventh Circuit Review

Standing is easy to describe but difficult to apply. At a minimum, standing requires three elements: (1) injury-in-fact; (2) traceability to conduct of the defendant; and (3) that a favorable decision could provide redress for the injury. This Note outlines the development of the standing doctrine from Lujan v. Defenders of Wildlife through Summers v. Earth Island Institute and examines how several courts have applied this standard to their cases. It also analyzes Pollack v. Department of Justice. It proposes an approach that demands more than pleadings but removes the court's license to pre-litigate the merits of the case …

Brief Of Amici Curiae Dinah Bear, Robert Glicksman, Oliver Houck, Daniel Mandelker, Thomas Mcgarity, Robert Percival, Zygmunt Plater, Nicholas Robinson, And Gary Widman In Support Of Respondents, Monsanto Co. V. Geertson Seed Farms, No. 09-475 (U.S. Apr. 5, 2010), Hope M. Babcock

U.S. Supreme Court Briefs

No abstract provided.

The Conflicting Concerns Of The Automatic Stay And Environmental Laws, Brett T. Bradford

Brett T. Bradford

This paper explores the conflict between the automatic stay in bankruptcy law and environmental laws regarding cleaning up pollution. It is shown that the two areas of law have fundamentally different purposes that work to disrupt the bankruptcy process. The purpose of the automatic stay is seriously disrupted by the government imposing clean up costs on the debtor while in bankruptcy. This paper shows the affects of the two conflicting areas of law and possible solutions to the problem.

Enabling Investments In Environmental Sustainability, Heather Hughes

Indiana Law Journal

No abstract provided.