Environmental Law Commons^™

E-Mail To Rebecca, Dale Goble

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What Are Slugs Good For?: Ecosystem Services And The Conservation Of Biodiversity, Dale Goble

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Reflections On Air Capture: The Political Economy Of Active Intervention In The Global Environment; An Editorial Comment, Edward A. Parson

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When global climate change came onto domestic and international policy agendas in the late 1980s, only two types of response were initially considered: reducing emissions by improving efficiencies or switching to lower or non-carbon energy sources; and adapting to the anticipated changes. Since that time the agenda of potential responses has been progressively expanded, principally by adding various ways to intervene in the global carbon cycle or the climate to break the connection between emissions of greenhouse gases and the resultant climate changes. Three types of these “intervening” responses are now, to varying degrees, present in policy debate: biological sequestration …

Syringes In The Sea: Why Federal Regulation Of Medical Waste Is Long Overdue, Chryssa V. Deliganis, Steve P. Calandrillo

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Medical waste is produced everywhere that people live and by almost everyone at some point in their lives. Its treatment and disposal implicates the environment, public health, the economy, human dignity, and aesthetics. With the many issues involved, the need for federal regulation of medical waste today is manifest.

This Article examines the problem of medical waste disposal and evaluates the current state-based approach to regulation. Although many states have implemented stringent medical waste programs with some success, the absence of direct federal regulation in this area is problematic. The need for national leadership is clear, especially with respect to …

Recovery Of Imperiled Species Under The Endangered Species Act: The Need For A New Approach, Dale Goble

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The recovery (delisting) of a threatened or endangered species is often accompanied by the expectation that conservation management of the species will no longer be necessary. However, the magnitude and pace of human impacts on the environment make it unlikely that substantial progress will be made in delisting many species unless the definition of “recovery” includes some form of active management. Preventing delisted species from again being at risk of extinction may require continuing, species-specific management actions. We characterize such species as “conservation-reliant”, and suggest that viewing “recovery” as a continuum of states rather than as a simple “recovered/not recovered” …

The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann

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Judicial Regrets And The Case Of The Cushman Dam, William H. Rodgers, Jr.

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This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.

The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.

It concludes …

The Exxon Valdez Reopener: Natural Resources Damage Settlements And Roads Not Taken, William H. Rodgers, Jr., J.B. Crosetto Iii, C.A. Holley, T.C. Kade, J.H. Kaufman, C.M. Kostelec, K.A. Michael, R.J. Sandberg, J.L. Schorr

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The 1989 Exxon Valdez oil spill caused extensive natural resource damage to the Prince William Sound. Lawsuits addressing this natural resource damage resulted in a settlement that required Exxon to pay $900 million over time to trustees charged with spending this money to restore the damaged environment of the Sound and nearby areas. The settlement included a “Reopener Clause,” which pledges Exxon to spend an additional $100 million to fund restoration or rehabilitation of resources whose injuries were not foreseeable in 1989.

This Article urges the State of Alaska and the United States to seek enforcement of the Reopener Clause, …

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

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Three Cases/Four Tales: Commons, Capture, The Public Trust, And Property In Land, Dale Goble

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The Property Clause: As If Biodiversity Mattered, Dale Goble

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Terrorism, Security, And Environmental Protection, Stephen M. Johnson

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Part I of this Article examines the post-September 11 trend of reduced access to environmental, health, and safety information. Part II introduces the tools that governments might use to protect the environment while protecting homeland security, including planning and information disclosure, command and control measures, and pollution prevention measures. Part II also criticizes the reliance on command and control measures as the primary means of addressing the security issues created by businesses that engage in activities that could harm the environment, health, or safety. Part III explores the advantages of planning and information disclosure programs over command and control programs …

Exacted Conservation Easements: The Hard Case Of Endangered Species Protection, Jessica Owley Lippmann

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Tribal Sovereignty Over Water Quality, Jessica Owley

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Improving Laws, Declining World: The Tort Of Contamination, William H. Rodgers, Jr.

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This article considers nature's "baseline" through the lens of modern environmental laws. We measure this "baseline" like never before and are proud of our databases on fish advisories, beach closures, and impaired water bodies, to mention a few. The ubiquitous legal response to these measures of environmental decline is the public warning "Don't Eat the Fish" and "Don't Drink the Water."

This article assesses the function, utility, and purpose of these public warnings and finds them wanting. Their principal value is that they serve as measures of lost natural capital and harbingers of shifting baselines.

Our descriptive journey leaves us …

Piney Run: The Permits Are Not What They Seem, Jessica Owley

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In 2001, the Fourth Circuit addressed the permit shield provision of the Clean Water Act and found it to provide broad-scale protection for polluters. In Piney Run Preservation Association v. County Commissioners of Carroll County, the Fourth Circuit held that facilities with discharge permits are protected from lawsuits even when discharging pollutants not contained within their permits. Under this ruling, permit holders may discharge, without fear of penalty, any disclosed pollutant within the reasonable expectation of the permitting authority. This decision is worrisome because it does not protect the goals of the Clean Water Act and deprives the public …

Foreword, Jessica Owley, Emma Garrison

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Preparing For Climatic Change: The Water, Salmon, And Forests Of The Pacific Northwest, Philip W. Mote, Edward A. Parson, Alan F. Hamlet, William S. Keeton, Dennis Lettenmaier, Nathan Mantua, Edward L. Miles, David W. Peterson, David L. Peterson, Richard Slaughter, Amy K. Snover

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The impacts of year-to-year and decade-to-decade climatic variations on some of the Pacific Northwest’s key natural resources can be quantified to estimate sensitivity to regional climatic changes expected as part of anthropogenic global climatic change. Warmer, drier years, often associated with El Niño events and/or the warm phase of the Pacific Decadal Oscillation, tend to be associated with below-average snowpack, streamflow, and flood risk, below-average salmon survival, below-average forest growth, and above-average risk of forest fire. During the 20th century, the region experienced a warming of 0.8 ◦C. Using output from eight climate models, we project a further warming of …

Understanding Climatic Impacts, Vulnerabilities, And Adaptation In The United States: Building A Capacity For Assessment, Edward A. Parson, Robert W. Corell, Eric J. Barron, Virginia Burkett, Anthony Janetos, Linda Joyce, Thomas R. Karl, Michael C. Maccracken, Jerry Melillo, M. Granger Morgan, David S. Schimel, Thomas Wilbanks

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Based on the experience of the U.S. National Assessment, we propose a program of research and analysis to advance capability for assessment of climate impacts, vulnerabilities, and adaptation options. We identify specific priorities for scientific research on the responses of ecological and socioeconomic systems to climate and other stresses; for improvement in the climatic inputs to impact assessments; and for further development of assessment methods to improve their practical utility to decision-makers. Finally, we propose a new institutional model for assessment, based principally on regional efforts that integrate observations, research, data, applications, and assessment on climate and linked environmental-change issues. …

Problem Of Unraveling: Biodiversity And Private Property In Land, Dale Goble

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Rulemaking, Michael Herz

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Street Crime, Corporate Crime, And Theories Of Punishment: A Response To Brown, Kyron J. Huigens

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In this response to Darryl Brown's important article, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, Professor Huigens argues that Brown has chosen the wrong theory of punishment on which to rest his case for a more regulatory, less punitive, approach to street crime. Brown has chosen the best, most sophisticated consequentialist theory of punishment, as developed principally by Dan Kahan. However, consequentialist punishment theory of any kind has a significant drawback: it has no plausible conception of criminal fault. As a result, Brown is constrained to argue that the language of desert and retribution should be muted …

Atlantic Salmon, Pacific Bound: Initiative, Defiance, Courage, And Indian Tribes In Environmental Law, William H. Rodgers, Jr.

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I want to address my remarks to the students of the University of Maine School of Law who will face a great deal of unfinished legal business on the topics of salmon, Indian tribes, and environmental law.

Elsewhere, I have derived what I describe as the five virtues of effective action (genius, high-leveraging, symbolism, optimism, courage). People of achievement, lawyers or otherwise, are familiar with these virtues and display them in many creative forms.

Next, I will peer through this lens of effective action at some key moments in the history of Atlantic-Pacific Salmon Interactions. This coming together has been …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

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My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

Growth And Form: Indian Tribes, Terrorism, And The Durability Of Environmental Law, William H. Rodgers, Jr.

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My target audience is the body of extraordinary law students here at the Vermont Law School who will define the shape and direction of tomorrow's environmental law. My plan is to derive five virtues of significant achievement—genius, high-leveraging, symbolism, optimism, and courage—and to convince you that the Indian tribes of the United States are fortuitously blessed with these capacities for positive change.

I am obliged to defend my five virtues against the charge that they are "gray" virtues, mere tactics of opportunity open to use by the forces of hatred and destruction as freely as those of nurturing and protection. …

Economics V. Equity Ii: The European Experience, Stephen M. Johnson

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Lawmakers in the European Union and its member states, like their counterparts in the United States, increasingly are using economic tools to protect the environment while reducing their focus on command and control regulation. The reliance on economic approaches to environmental protection may disproportionately impact low income and minority communities. Although evidence of environmental injustice in Europe is not as strong as in the United States, several recent studies demonstrate that traditional environmental protection measures in Europe have disproportionately funneled pollution to low income communities. Economic-based environmental measures can only exacerbate that trend.

Private Plaintiffs, Public Rights: Article Ii And Environmental Citizen Suits, Stephen M. Johnson

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This Article will focus on the Take Care Clause of Article II, the most serious of the Article II challenges to the environmental citizen suit provisions. Justice Scalia and legal commentators have argued that Article II prohibits a citizen from suing to enforce federal laws unless the citizen has suffered a concrete and personal ("individuated") injury as a result of the action that he is challenging. Professor Cass Sunstein and others have dissented, and have suggested that Congress can authorize citizens to sue to enforce federal laws even when the citizens have not suffered individuated injuries.

The first Part of …

Implementing Everglades Restoration, Mary Doyle

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World Trade Agreements: Advancing The Interests Of The Poorest Of Poor, John O. Mcginnis

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Federal Regulation Of Isolated Wetlands After Swancc, Stephen M. Johnson

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This past January the U.S. Supreme Court held that the Clean Water Act (CWA) did not authorize the federal government to prohibit a landfill operator from filling isolated ponds on its property merely because the ponds were used as habitat by migratory birds. The National Association of Home Builders claimed that the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) was "a major legal victory for home builders and other private property owners." Critics of the SWANCC decision argued that it jeopardizes "perhaps a fifth of the water bodies in the United …