Law Commons^™

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Appliance Efficiency, David R. Hodas

David R. Hodas

Blood In Honduras, Silence In The United States, Lauren Carasik

Media Presence

No abstract provided.

Oregon Natural Desert Association V. Jewell, Jody D. Lowenstein

Public Land & Resources Law Review

In Oregon Natural Desert Association v. Jewell, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a wind-energy development on inaccurate scientific analysis. In negating the BLM’s action, the court held that flawed data and indefensible reasoning were discordant with NEPA’s central tenets. Furthermore, the court did not hold the BLM responsible for addressing a distinct environmental issue that was not brought to its attention during the public comment period.

California Climate Law---Model Or Object Lesson?, Daniel A. Farber

Daniel A Farber

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes. At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening …

Adaptive Management And The Future Of Environmental Law, Eric Biber

Eric Biber

Adaptive management is the new paradigm in environmental law. It is omnipresent in scholarship and management documents and is even starting to appear in court opinions. There have been many calls for environmental law to adapt itself to adaptive management by becoming more flexible and dynamic. But does adaptive management really warrant a revolution in environmental law? Or is it adaptive management that might need to adapt to the world of environmental law? There has been an abundance of scholarship on the strengths of adaptive management, making the case for changing environmental law to embrace adaptive management. But answering the …

Citizens Of Sinking Islands: Early Victims Of Climate Change, Erin Halstead

Indiana Journal of Global Legal Studies

This Note discusses the effects of climate change that threaten Small Island Developing States (SIDS). Specifically, with increasing global greenhouse gas (GHG) emissions resulting in rising sea levels and higher frequency of extreme weather events, many citizens of SIDS are forced abandon their homelands, which are no longer livable. Although SIDS are some of the smallest contributors to GHG emissions, and therefore contribute the least to climate change, SIDS are some of the countries most heavily affected by the negative effects of climate change. The global community has an obligation to accommodate these displaced people, partially due to the significant …

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

Christine A. Klein

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 …

Inquiry Into The Implementation Of Bush’S Executive Order 13211 And The Impact On Environmental And Public Health Regulation, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic

Publications and Research

Executive Order 13211, promulgated in 2001, requires the federal government to consider the impact of federal action on energy independence as part of the George W. Bush’s National Energy Policy. This law review examines whether EO 13211 was used to curtail environmental protection and natural resource conservation. The article begins with a review of the procedure required of federal agencies under EO 13211 and its associated documents. The paper then examines case law and published federal rulemaking proceedings and examines how federal agencies apply tests to evaluate the potential energy effect. The study concludes that EO 13211 strikes a reasonable …

The Devil Is In The Details: Articulating Practical Principles For Implementing The Duties In Pennsylvania's Environmental Rights Amendment, Kenneth Kristl

Kenneth T Kristl

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger

Marquette Law Review

Conservation easements are a tool landowners can use to protect their land and preserve it for generations to come. Given the new emphasis society places on preserving the environment, many states have enacted some form of a conservation easement program where landowners who encumber their property with a conservation easement can receive a benefit for doing so. Wisconsin and Virginia are two states with this type of program. Wisconsin’s conservation easement program allows a landowner to donate his land and the state pays him the difference in the market value. Virginia’s program, on the other hand, allows a landowner to …

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari M. Osofsky, Jacqueline Peel

Chicago-Kent Law Review

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes—often in interaction with litigation—has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants.

Although many observers critique this state of affairs and wish for a legislature more able to act, this essay argues that more …

The Injustice Of Sea Level Rise: Ethics And Evidence, Lies And Liability--Event Poster, Professor Keith Rizzardi

Lectures and Presentations

The Center for International Law & Justice (CILJ) and the Environment, Development & Justice Program (EDJP) present a lecture by Professor Keith Rizzardi. Professor Rizzardi, an experienced government lawyer and litigator, teaches at St. Thomas University School of Law.

The Injustice Of Sea Level Rise: Ethics And Evidence, Lies And Liability--Text Of Speech, Professor Keith Rizzardi

Lectures and Presentations

The Center for International Law & Justice (CILJ) and the Environment, Development & Justice Program (EDJP) present the Second Annual Climate and Energy Justice Lecture by Professor Keith Rizzardi. Professor Rizzardi, an experienced government lawyer and litigator, teaches at St. Thomas University School of Law.

The Injustice Of Sea Level Rise: Ethics And Evidence, Lies And Liability--Slides And Data Presentation, Professor Keith Rizzardi

Lectures and Presentations

The Center for International Law & Justice (CILJ) and the Environment, Development & Justice Program (EDJP) present the Second Annual Climate and Energy Justice Lecture by Professor Keith Rizzardi. Professor Rizzardi, an experienced government lawyer and litigator, teaches at St. Thomas University School of Law.

The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy

Osgoode Hall Law Journal

This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it …

The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey

Osgoode Hall Law Journal

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: They reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

Symposium: Environmental Accountability In An Age Of Consequences: Foreword, Julie E. Steiner

Faculty Scholarship

The five articles in this Symposium issue each take a different approach to addressing environmental accountability. There is unequivocal evidence that the climate system is warming, caused mainly by the measurable increase in anthropogenic greenhouse gas emissions. The Symposium authors include Denis Binder, Susan Stark, Julie E. Steiner, Chris Erchull, Laura Fisher, and Daniel DePasquale. These Authors challenge all to think broadly about utilization of different accountability mechanisms to ensure more efficient environmental outcomes.

The Dirty Effects Of Clean Energy Technology: Supportive Regulations To Promote Recycling Of Lithium Ion Vehicle Batteries, Liz Harland

San Diego Journal of Climate & Energy Law

The discovery of potential environmental, geo-political, and human health concerns from the production and disposal of millions of Li-ion batteries each year demands stronger government policies to encourage recovery, recycling and reuse of Li-ion battery materials. The increasing demand for lithium will potentially shift the resource curse experienced by oil-rich countries to lithium-rich countries in South America, such as Chile, Argentina, and Bolivia. Part II of this Comment provides an overview of the negative impacts associated with the mining, production, and disposal of Li-ion batteries. It examines the environmental and human health effects of mining lithium on surrounding communities, and …

Subnational Discretion Mediating New Climate Regulatory Challenges, Steven Ferrey

San Diego Journal of Climate & Energy Law

Subnational units of government are critical actors in the U.S. federalist scheme of regulation. It was the original 13 colonies/states which were the core of the American experiment, and banded together as a nation for common defense and commerce after fighting for independence from the United Kingdom. The Constitution vested in the new federal government the treaty and war powers, as well as powers over interstate commerce.

Animal Law And Environmental Law: Exploring The Connections And Synergies, Randall S. Abate, Elizabeth Hallinan, Joan E. Schaffner, Bruce Myers

Journal Publications

Environmental law, with its intricate layers of international, federal, state, and local laws, is more established than its animal counterpart. Yet animal law faces many of the same legal and strategic challenges that environmental law faced in seeking to establish a more secure foothold, both in the United States and abroad. In What Can Animal Law Learn From Environmental Law?, editor Randall S. Abate brought together academics, advocates, and legal professionals to examine the very different histories of environmental and animal law, as well as the legal and policy frameworks that bridge the two fields. On November 16, 2015, the …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

A Tale Of Two Continents: Environmental Management-Based Regulation In The European Union And The United States, Rachel E. Deming

Faculty Scholarship

No abstract provided.

The Human Right To Clean Air: A Case Study Of The Inter-American System, Varun K. Aery

Seattle Journal of Environmental Law

Combatting environmental damage has become a primary goal of the international community. Unfortunately, international human rights law has not taken this aim seriously. Although the Inter-American regional human rights system, one of three regional human rights institutions, empathizes with protecting the environment, it enervates such goals by barring victims of air pollution and climate change from access to judicial remedies. Seeking to bridge the gap between human rights law and environmental protection, this article explains why clean air is a human right, develops the positive content for such a right, and evaluates the practical reasons that justify the right’s importance. …

Cultural Rights V. Species Protection: A Case Study Of Pacific Leatherback Sea Turtles, Mohit Khubchandani, Mehul Parti

Seattle Journal of Environmental Law

The leatherback sea turtle (Dermochelys coriacea), sometimes called the lute turtle, is the largest of all living turtles. It is the fourth- heaviest modern reptile behind three crocodilians. These species are categorized as critically endangered under the International Union for Conservation of Nature (IUCN) Red List. These turtles avail pro- tection under the Convention on Illicit Trade in Endangered Species (CITES); a treaty enacted to protect wildlife against over-exploita- tion and with an aim to ensure that international trade in specimens of wild animals and plants does not threaten their survival. The said treaty is applicable to species in general …

Saving The Serengeti: Africa's New International Judicial Environmentalism, James T. Gathii

Faculty Publications & Other Works

This Article analyzes recent environmental law decisions of Africa's fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa's international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa's international courts are simultaneously pushing …

Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch

Vanderbilt Law School Faculty Publications

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

In Defense Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.