Environmental Law Commons^™

Rapanos, Carabell, And The Isolated Man, Joel B. Eisen

Law Faculty Publications

We gather yet again this year at the University of Richmond to discuss the deplorable state of the Chesapeake Bay and the concerted effort needed to bring it back from the brink of death. The state of the Bay seems not much better than it did eleven years ago, when a group of wise souls who cared deeply about the Bay assembled at this law school to revisit the Kepone incident and call for more action to stem pollution in the Bay. To no one's surprise, unfortunately, that august group assembled in our Moot Court Room did not solve the …

The Blackout Of 2003: What Is Next?, Joel B. Eisen

University of Richmond Law Review

No abstract provided.

The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen

Law Faculty Publications

In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …

Environmental Law, Benjamin A. Thorp Iv, William K. Taggart

University of Richmond Law Review

No abstract provided.

Western Sovereignty For The Twenty-First Century, Carl W. Tobias

Law Faculty Publications

Review of reviewing Daniel Kemmis, This Sovereign Land (2001).

Creation, Liberation, And Property: Virtues And Values Toward A Theocentric Earth Ethic, W. Wade Berryhill

Law Faculty Publications

Religion continues to play a significant role in shaping our attitudes toward nature.2 Time-honored principles of stewardship of the land demand that we owe a duty to future generations to allow them to inherit a healthy environment. Essential to this obligation is spiritual faith, not the trendy brand of secular humanism espoused by ecodogmatists seeking environmental justice through means unmoored from centuries-old principles of creation. What secular humanism ignores-and what religious traditions the world over have recognizedis the reality that we are a "creative expression of the earth's own evolution."3 Thus, in light of our duty to posterity, mere emphasis …

Environmental Law, Lisa Spickler Goodwin

University of Richmond Law Review

No abstract provided.

Brownfields Redevelopment, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio+ 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions of Agenda 21 …

Earning Deference: Reflections On The Merger Of Environmental And Land-Use Law, Michael Allan Wolf

Law Faculty Publications

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary and classrooms. Leading the way are several United States Supreme Court Justices who, in cases involving the Commerce Clause, the Takings Clause and Section Five of the Fourteenth Amendment, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government. ...

A Case Study Of Sustainable Development: Brownfields, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio + 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small minority of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable and increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Environmental Law Slogans For The New Millenium, Michael Allan Wolf

University of Richmond Law Review

Contrary to the bleakest predictions offered by environmental fatalists during the latter half of the 1900s, humanity and much of the plant and animal kingdom survived New Year's Eve 1999. Similarly, contrary to the dire warnings of industrial organizations and lobbyists that overburdening environmental regulations would spell the end of profitable, American capitalism, the year 2000 dawned in the United States with the world's most extensive array of anti-pollution and pro-conservation measures regulating the globe's most impressive economic engines.

Annual Survey Of Virginia Law: Environmental Law, Kevin J. Finto, Christopher R. Graham, Brooks M. Smith, Penny A. Shamblin

University of Richmond Law Review

Recent developments in environmental law in Virginia continue to reflect several trends. These trends may be grouped into six general categories: (1) the growing tension between federal environmental mandates and their practical implementation through delegated state programs; (2) the continuing debate over the exact definition of "interstate commerce" and the scope of state authority to regulate in the gray area; (3) the impending deregulation of the electrical energy market; (4) the promotion of sustainable development; (5) the developing schism between state and local land use control; and (6) the evolving nature of administrative law in the environmental context. The following …

Adr At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental problems. …

Alternative Dispute Resolution At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for the development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental …

Practice, Policy, And Pedagogy In A Mandatory Environmental Law Course, Michael Allan Wolf, Joel B. Eisen

Law Faculty Publications

All students at the University of Richmond School of Law are required to complete a first-year course in Environmental Law, as an introduction to the strategies and technicalities of statutory and regulatory regimes. This requirement poses special pedagogical challenges for the instructors. How, for example, is the class to address pollution questions regarding diverse media? Which of the many federal and nonfederal statutory provisions deserve the most (and least attention)? How does the instructor hold the attention of, and gain the most effective work product from, students whose major interests lie outside the area of Environmental Law? What is the …

Annual Survey Of Virginia Law: Environmental Law, Eric A. Degroff

University of Richmond Law Review

This article summarizes federal and state environmental developments occurring in, or potentially affecting, the Commonwealth of Virginia during the period of June 1998 to June 2000. Legislative, regulatory, and judicial developments are included.

Establishing An Environmental Audit Privilege To Promote Implementation Of The Iso 14000 Standards, James E. Plumhoff

Richmond Public Interest Law Review

This comment will attempt to address some of the issues surrounding the ISO 14000 standards and also the Eco-Management and Audit Scheme or EMAS standards. Part II of the comment will discuss the evolution and need for international standards such as ISO 14000 and EMAS. Part III will analyze the challenges to successful implementation of ISO and EMAS, particularly concentrating on the problems which may arise from the proliferation of information due to increased EMS audits. Part IV suggests that ISO audit privilege legislation be adopted by the U.S. Congress and that an ISO audit policy be adopted by the …

Thinking Ahead: Protecting The Environment In The 21st Century, Thomas L. Eggert

Richmond Public Interest Law Review

The United States has made notable progress in cleaning up the environment over the last 30 years. Our nation's air, land and water are, in almost all cases, significantly cleaner than they were only a few decades ago.' Before declaring victory though, we must acknowledge that some environmental problems are getting worse, and the nature of our environmental problems has changed. Many environmental problems are now global problems, as opposed to problems that could be dealt with at the national or state level. Problems have become diffuse, with no clearly identifiable source and with a lengthy delay between cause and …

North American Environment And Its Linkages To Trade, Nicole A. Kleman

Richmond Public Interest Law Review

This article will follow a deductive approach in order to comprehend the intricacies involved in the NAFTA and NAAEC's environmental provisions. It will also contextualize the inseparable relationship between environmental protection and trade which is depicted in these agreements. Part I will review and analyze the NAFTA's environmental provisions, focusing on their relevant mechanisms, nexus to trade, and shortcomings. In Part II, the uniqueness and effectiveness of the formula developed to reconcile trade and the environment in the form of the NAAEC will be introduced. Part III is divided into three categories: the Commission for Environmental Cooperation ("CEC"), Dispute Resolution …

Thinking Ahead: Protecting The Environment In The 21st Century, Thomas L. Eggert

Richmond Journal of Law and the Public Interest

The United States has made notable progress in cleaning up the environment over the last 30 years. Our nation's air, land and water are, in almost all cases, significantly cleaner than they were only a few decades ago.' Before declaring victory though, we must acknowledge that some environmental problems are getting worse, and the nature of our environmental problems has changed. Many environmental problems are now global problems, as opposed to problems that could be dealt with at the national or state level. Problems have become diffuse, with no clearly identifiable source and with a lengthy delay between cause and …

North American Environment And Its Linkages To Trade, Nicole A. Kleman

Richmond Journal of Law and the Public Interest

This article will follow a deductive approach in order to comprehend the intricacies involved in the NAFTA and NAAEC's environmental provisions. It will also contextualize the inseparable relationship between environmental protection and trade which is depicted in these agreements. Part I will review and analyze the NAFTA's environmental provisions, focusing on their relevant mechanisms, nexus to trade, and shortcomings. In Part II, the uniqueness and effectiveness of the formula developed to reconcile trade and the environment in the form of the NAAEC will be introduced. Part III is divided into three categories: the Commission for Environmental Cooperation ("CEC"), Dispute Resolution …

Is Nafta Up To Its Green Expectations? Effective Law Enforcement Under The North American Agreement On Environmental Cooperation, Beatriz Bugeda

University of Richmond Law Review

On January 1, 1994, the North American Free Trade Agreement (NAFTA) between the governments of Mexico, Canada and the United States went into effect. Together with this trade agreement, the governments of the three countries entered into a side agreement on the environment: the North American Agreement on Environmental Cooperation (NAAEC). This agreement, also known as the Environmental Side Agreement, responded to some of the concerns of NAFTA critics. Some environmentalists believed NAFTA would promote environmentally insensitive and uncontrolled growth, and others thought the liberalization of trade would be used as a means to preempt stringent domestic environmental regulations.

International Environmental Litigation And Its Future, Philippe Sands

University of Richmond Law Review

The subject of international environmental law is relatively new. The subject was certainly not taught when the University of Richmond School of Law was established in 1870, even if early international law texts before that period did indicate a nascent concern for the issues of fisheries conservation and the use of international rivers. The late part of the last century and the early part of this one recognized a world in which international law could be divided, rather simply, between the law of peace and the law of war. It was a world with few international courts and tribunals in …

Establishing An Environmental Audit Privilege To Promote Implementation Of The Iso 14000 Standards, James E. Plumhoff

Richmond Journal of Law and the Public Interest

This comment will attempt to address some of the issues surrounding the ISO 14000 standards and also the Eco-Management and Audit Scheme or EMAS standards. Part II of the comment will discuss the evolution and need for international standards such as ISO 14000 and EMAS. Part III will analyze the challenges to successful implementation of ISO and EMAS, particularly concentrating on the problems which may arise from the proliferation of information due to increased EMS audits. Part IV suggests that ISO audit privilege legislation be adopted by the U.S. Congress and that an ISO audit policy be adopted by the …

Environmental Impact Assessment Laws In The Nineties: Can The United States And Mexico Learn From Each Other?, Heather N. Stevenson

University of Richmond Law Review

The National Environmental Policy Act of 1969 (NEPA) was the first major environmental law in the United States. The statute "was devised to establish a comprehensive national policy which would ... guid[e] federal activity and provid[e] for a coordinated, informed approach toward dealing with environmental problems." Since NEPA's enactment, agencies have been "required to prepare environmental analyses, with input from the state and local governments, Indian tribes, the public, and other federal agencies, when considering a proposal for a major federal action." Although most of the environmental impact assessment law in the world is modeled on NEPA and the impact …

Treaty Congestion In International Environmental Law: The Need For Greater International Coordination, Bethany Lukitsch Hicks

University of Richmond Law Review

The number of multilateral environmental agreements in the international community has proliferated greatly since the 1972 United Nations Conference on the Human Environment held in Stockholm, Sweden. When the conference was held in 1972, there were approximately three dozen multilateral environmental agreements in existence. In 1989, the United Nations' Environmental Programme (UNEP) Register of Environmental Agreements listed a total of 139 treaties. Today, there are more than 900 international legal instruments, including treaties and binding or non-binding agreements that "are either focused on [the] environment or contain one or more important provisions concerned with the environment." This growth and success …

Brownfields Policies For Sustainable Cities, Joel B. Eisen

Law Faculty Publications

My analysis begins in Part I with a short summary of brownfields law and policy, and a description of our current understanding of "sustainable development." There is no hard and fast definition of the term, but it is increasingly more clear that a body of sustainable development "law" will take shape as the product of a host of decisions made now and in the near future. The optimal way to ensure that brownfields programs mesh with this body of law-whatever it turns out to be-is to incorporate basic norms of sustainable development about which there is widespread agreement. Those agreed-upon …

From Stockholm To Kyoto And Back To The United States: International Environmental Law's Effect On Domestic Law, Joel B. Eisen

Law Faculty Publications

In Part I, I begin my discussion of the relationship between the two legal regimes with a brief introduction to modern international environmental law to assist those whose knowledge is as limited as mine was not too long ago. I also describe how the Allen Chair Symposium and seminar series was designed to facilitate exploration of major trends in international environmental law. Part II provides a more in-depth look at the specific relationship between domestic and international environmental law. I conclude that international environmental law informs domestic law as a wellspring of law leading to domestic innovation, a complement to …

Blocked Pathways: Potential Legal Responses To Endocrine Disrupting Chemicals, Noah M. Sachs

Law Faculty Publications

Over fifty different chemicals may have endocrine disrupting effects, and these chemicals permeate our environment. We may be exposed to them through the products we use, the food we eat, the water we drink, and the air we breath. Although there is a clear need for further research into EDCs, the legal and regulatory communities should begin to consider the types of responses that may be appropriate if the scientific evidence grows stronger.

This article describes and assesses potential legal responses to EDCs, focusing on regulation and litigation, and concludes that existing legal tools will probably be inadequate to respond …