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Environmental law

2018

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Full-Text Articles in Law

Tribal Tools & Legal Levers For Halting Fossil Fuel Transport & Exports Through The Pacific Northwest, Mary Christina Wood Dec 2018

Tribal Tools & Legal Levers For Halting Fossil Fuel Transport & Exports Through The Pacific Northwest, Mary Christina Wood

American Indian Law Journal

As alarming scientific predictions crystallize into the realities of today’s climate crisis, tribal communities in the Pacific Northwest find themselves on the front lines of a global assault launched by the fossil fuel industry. Encouraged by President Trump’s declaration of intent to unleash $50 trillion of America’s domestic fossil fuels, corporations push for massive expansion of the nation’s fossil fuel infrastructure—even as the world races towards irrevocable climate thresholds. The unprecedented onslaught hinges on the Pacific Northwest as a key link in a global market scheme. The coastal region sits as a proposed industrial gateway for huge export facilities transporting …


The Carbon-Neutral Individual, Michael P. Vandenbergh, Anne C. Steinemann Dec 2018

The Carbon-Neutral Individual, Michael P. Vandenbergh, Anne C. Steinemann

Michael Vandenbergh

Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated 60-80% over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly 8% of the world's total, more than the total emissions of any other country except China, and more than several …


The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh Dec 2018

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Michael Vandenbergh

No abstract provided.


From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh Dec 2018

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Michael Vandenbergh

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …


Climate Change: The China Problem, Michael P. Vandenbergh Dec 2018

Climate Change: The China Problem, Michael P. Vandenbergh

Michael Vandenbergh

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process …


Climate Change: The Equity Problem, Michael P. Vandenbergh, Brooke A. Ackerly Dec 2018

Climate Change: The Equity Problem, Michael P. Vandenbergh, Brooke A. Ackerly

Michael Vandenbergh

A substantial proportion of the United States population is at or below the poverty level, yet many of the greenhouse gas emissions reduction measures proposed or adopted to date will increase the costs of energy, motor vehicles, and other consumer goods. This essay suggests that although scholarship and policymaking to date have focused on the disproportionate impact of these increased costs on the low-income population, the costs will have two important additional effects. First, the anticipated costs will generate political opposition from social justice groups, reducing the likelihood that aggressive measures will be adopted. Second, to the extent aggressive measures …


Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen Dec 2018

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Michael Vandenbergh

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …


Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman Nov 2018

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …


Measuring Brief (Fossil Creek Watchers, Inc.), Lowell J. Chandler, Nathan A. Burke Nov 2018

Measuring Brief (Fossil Creek Watchers, Inc.), Lowell J. Chandler, Nathan A. Burke

Pace Environmental Law Review Online Companion

No abstract provided.


Measuring Brief (Enerprog, Llc), Mehrded Safvati, Joshua Smith, Gabriela S. Perez Nov 2018

Measuring Brief (Enerprog, Llc), Mehrded Safvati, Joshua Smith, Gabriela S. Perez

Pace Environmental Law Review Online Companion

No abstract provided.


Measuring Brief (Epa), Zachary Jones, Narayan Subramanian, Shravya Govindgari Nov 2018

Measuring Brief (Epa), Zachary Jones, Narayan Subramanian, Shravya Govindgari

Pace Environmental Law Review Online Companion

No abstract provided.


2018 Bench Memorandum Nov 2018

2018 Bench Memorandum

Pace Environmental Law Review Online Companion

No abstract provided.


2018 Competition Problem Nov 2018

2018 Competition Problem

Pace Environmental Law Review Online Companion

No abstract provided.


Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin Nov 2018

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …


Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey Oct 2018

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …


Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western Oct 2018

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …


Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot Oct 2018

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …


Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas Oct 2018

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …


Center For Biological Diversity V. Zinke, Ryan Hickey Oct 2018

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …


Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker Oct 2018

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …


Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh Oct 2018

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.


Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer Oct 2018

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …


California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers Sep 2018

California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers

Public Land & Resources Law Review

In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.


No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin May 2018

No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

You have likely seen the bumper sticker, bold white text on a green background, reading “No Farms No Food.” The sticker is a product of, and in fact a tagline for, the American Farmland Trust. On the one hand, the point is obvious: As American Farmland Trust puts it, “[e]very meal on our plates [c]ontains ingredients grown on a farm. We all need farms to survive.” On the other hand, what seems like a plain statement on its face, “no farms no food,” is not so simple. Farms produce affordable food, they produce vast quantities of food, they produce healthy …


"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske Apr 2018

"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske

William & Mary Environmental Law and Policy Review

No abstract provided.


Climate Change Litigation And Narrative: How To Use Litigation To Tell Compelling Climate Stories, Grace Nosek Apr 2018

Climate Change Litigation And Narrative: How To Use Litigation To Tell Compelling Climate Stories, Grace Nosek

William & Mary Environmental Law and Policy Review

No abstract provided.


George J. Mitchell: Maine's Environmental Senator, Michael R. Bosse Apr 2018

George J. Mitchell: Maine's Environmental Senator, Michael R. Bosse

Maine Law Review

The State of Maine is blessed with a history of impressive and respected politicians. Among others, the list includes James Blaine, Margaret Chase Smith, and Edmund S. Muskie. The State now must add the name of George J. Mitchell to these ranks. A native son of Waterville, Maine, he attended Bowdoin College, Georgetown University Law Center, and eventually catapulted himself into one of the most powerful political positions in the United States government when he was elected as majority leader of the United States Senate. During his tenure as majority leader, he helped to redefine the position through his strong …


Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith Apr 2018

Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith

Maine Law Review

Environmental issues have transformed the areas of law that I have taught for the last thirty-one years. A decade ago environmental law went virtually unmentioned in courses in property, domestic oil and gas law, and international transactions. By 1995 environmental concerns had moved from the periphery to center stage in these legal fields. To someone who teaches and writes about these subjects, the clearest manifestation of this development has been that virtually every first-year property casebook, mining or oil and gas law casebook, and international business transactions casebook, written in the last five years now includes segments on environmental law. …


Foreword: Private, Environmental, Governance, Joshua Ulan Galperin Apr 2018

Foreword: Private, Environmental, Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is the invited foreword to the 2017 J.B & Maurice C. Shapiro Environmental Law Symposium issue of the George Washington Journal of Energy and Environmental Law. The 2017 symposium was dedicated to the issue of private environmental governance. This essay recognizes the incredible growth of private environmental governance as an area of study in the legal academy. In addition to introducing the various contributions to the symposium issue, this essay proposes that rather than merely studying "private environmental governance" as an independent concept, scholars should look closely at the individual components, "private," "environmental," and "governance," to better understand …


Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Ulan Galperin Apr 2018

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).