Environmental Law Commons^™

Role Of Courts In Ensuring Water Justice In India: Brasilia Declaration On Water Justice And Beyond, Gayathri D. Naik

Articles

Water being a scarce resource, questions of its allocation and distribution, coupled with concerns of its depletion have troubled policy makers, legislators, and judges alike. While, over the years there has been significant development on the discussion surrounding the rights-duty paradigm of water resources, by establishing the obligation of states, discussion surrounding a certain value-based approach to guide the minds of important stakeholders in creating and enforcing policy has gained far less traction comparatively. It is in this context that this paper explores an alternative justice-based approach to water, drawing from the works of Amartya Sen on capabilities and more …

The Sec's Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

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Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …

Regulating For Energy Justice, Alexandra B. Klass, Gabriel Chan

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In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decision making, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the …

The Injustice Of 1.5°C–2°C: The Need For A Scientifically Based Standard Of Fundamental Rights Protection In Constitutional Climate Change Cases, Andrea K. Rodgers, Lauren E. Sancken, Jennifer Marlow

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In 2015, signatories to the Paris Agreement agreed to the goal of keeping global temperature rise this century to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase even further to 1.5°C. Although the adoption of the Paris Agreement was in many ways a political triumph, seven years later many climate advocates are presenting the Paris target to judicial bodies as the de facto legal standard for fundamental rights protection in climate change cases. Yet, the history leading up to the signatories’ ultimate adoption of the Paris Agreement target suggests that the target is …

Funding Global Governance, Kristina B. Daugirdas

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Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

Governing Complexity: Integrating Science, Governance, And Law To Manage Accelerating Change In The Globalized Commons, Barbara Cosens

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The speed and uncertainty of environmental change in the Anthropocene challenge the capacity of coevolving social–ecological–technological systems (SETs) to adapt or transform to these changes. Formal government and legal structures further constrain the adaptive capacity of our SETs. However, new, self-organized forms of adaptive governance are emerging at multiple scales in natural resource-based SETs. Adaptive governance involves the private and public sectors as well as formal and informal institutions, self-organized to fill governance gaps in the traditional roles of states. While new governance forms are emerging, they are not yet doing so rapidly enough to match the pace of environmental …

From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen M. Johnson

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In 1972, a bipartisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Almost fifty years have passed since Congress enacted the law, and during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970s, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. …

A System For Resilience Learning: Developing A Community-Driven, Multi-Sector Research Approach For Greater Preparedness And Resilience To Long-Term Climate Stressors And Extreme Events In The Miami Metropolitan Region, Abigail L. Fleming, Tiffany G. Troxer, Amy C. Clement, Yoca Arditi-Rocha, Gretchen Beesing, Mahadev Bhat, Jessica Bolson, Carissa Cabán-Alemán, Karina Castillo, Olivia Collins, Mayra Cruz, Alan Dodd, Scotney D. Evans, Carlos Genatios, Jane Gilbert, Alyssa Hernandez, Cheryl Holder, Maria Ilcheva, Elizabeth Kelly, Arturo Leon, Joanna Lombard, Katharine J. March, Diana Moanga, James F. Murley, Amy Knowles, Jayantha Obeysekera, Loren Parra, Jennifer Posner, Arif Sarwat, Rachel Silverstein, John A. Stuart, Michael C. Sukop, Shimon Wdowinski, Elizabeth Wheaton

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There is a growing need for integrated approaches that align community priorities with strategies that build resilience to climate hazards, societal shocks, and economic crises to ensure more equitable and sustainable outcomes. We anticipate that adaptive management and resilience learning are central elements for these approaches. In this paper, we describe an approach to build and test a Resilience Learning System to support research and implementation of a resilience strategy developed for the Greater Miami and the Beaches or the Resilient305 Strategy. Elements foundational to the design of this integrated research strategy and replicable Resilience Learning System are: (1) strong …

Climate-Induced Human Displacement And Conservation Lands, Jessica Owley

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As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …

The Energy Transition And Mining: Reconciling The Growth Of Renewable Energy With The Need For New Mineral Development, Alexandra B. Klass, Allison J. Mitchell

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Under the Paris Agreement, the global governmental signatories embraced the goal to hold global average temperature increase to “well below 2°C above pre-industrial levels” while “pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” Almost every country in the world signed on to the Paris Agreement, adopting the prevailing science that anthropocentric greenhouse gas emissions would result in rising global temperatures and catastrophic damages from climate change in the absence of immediate action. In pursuit of this goal, the signatories agreed that all member countries would work together to bring greenhouse gas emissions to zero within the …

There Will Be Floods: Armoring The People Of Florida To Make Informed Decisions On Flood Risk, Natalie N. Barefoot, Daniela Tagtachian, Abigail L. Fleming, Gabriela Falla, Bethany Blakeman, Natalie Cavellier

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In Florida, a peninsula surrounded by water with the second-lowest mean elevation in the country, there will be floods.[1] A global study ranking cities most vulnerable to losses from flooding lists Miami first in the United States and sixth globally; Tampa-St. Petersburg is listed as 16th globally.[2] Yet there are no state statutes or regulations in Florida that require a seller or landlord to make flood-related disclosures to homebuyers and renters. In contrast, while varying in scope, 29 states require flood-risk disclosures in real estate transactions.[3] Though Florida should be leading in this arena, in an evaluation of nationwide flood …

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

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With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

Designing Law To Enable Adaptive Governance Of Modern Wicked Problems, Barbara Cosens

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In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed "wicked" due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …

Cwa In-Lieu Fee Mitigation: Project And Programmatic Risks, Erin Okuno, Rebecca Kihslinger, Royal C. Gardner, Christina Libre

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No abstract provided.

Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson

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an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.

Fifteenth Annual Brigham-Kanner Prize Presentation Dinner Award Recipient Speech, Stewart E. Sterk

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The article presents the speech of Stewart Sterk, recipient of the Brigham-Kanner Prize, reflecting on his academic career, contributions to property law, and the significance of the Penn Central case. Sterk emphasizes the importance of property law in understanding societal systems and highlights his comprehensive approach to teaching and scholarship. He also discusses how Penn Central shaped his career and the evolution of takings law, while underscoring the value of interdisciplinary collaboration and generosity in academic and professional endeavors.

Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vasessa Casado Perez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom

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The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward …

The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris

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Across the United States, government agencies and energy developers are looking to agricultural land for development of renewable energy. One attraction of agricultural lands is that they are already relatively ecologically impaired compared with the previous solar development sites in the California and Arizona desert that have been a major source of concern for many environmental groups-and subject to expensive mitigation requirements under the Endangered Species Act. Renewable energy development pressures are accelerating the existing loss of agricultural land, heightening concerns about food security and the economic viability of agricultural communities. California farmland is at the center of this conflict. …

The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen Johnson

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Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is the most frequently cited Supreme Court administrative law decision and has generated substantial scholarship over the past thirty-four ears. Almost three decades ago, Robert Glicksman and Christopher Schroeder examined the nature of judicial review of the actions of the Environmental Protection Agency ("EPA") by the federal courts during the agency's first twenty years of existence, focusing, in part, on the changing nature of that review in light of the Chevron decision. Glicksman and Schroeder concluded that the courts aggressively reviewed EPA's actions during the agency's early years, interpreting the …

Introduction To The Special Feature Practicing Panarchy: Assessing Legal Flexibility, Ecological Resilience, And Adaptive Governance In Regional Water Systems Experiencing Rapid Environmental Change, Barbara Cosens

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This special feature presents articles on the cross-scale interactions among law, ecosystem dynamics, and governance to address the adaptive capacity of six watersheds in the United States as they respond to rapid environmental change. We build on work that assesses resilience and transformation in riverine and wetland social-ecological systems across the United States at a variety of scales, levels of development, and degrees of degradation, focusing specifically on the Anacostia River, Central Platte River, Klamath River, Columbia River, Middle Rio Grand River, and the Everglades wetlands. All of these cases involve complex institutional systems, histories involving ecological and social regime …

Incorporating Social System Dynamics In The Columbia River Basin: Food-Energy-Water Resilience And Sustainability Modeling In The Yakima River Basin, Barbara Cosens

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In the face of climate change, achieving resilience of desirable aspects of food-energy-water (FEW) systems already strained by competing multi-scalar social objectives requires interdisciplinary approaches. This study is part of a larger effort exploring “Innovations in the Food-Energy-Water Nexus (INFEWS)” in the Columbia River Basin (CRB) through coordinated modeling and simulated management scenarios. Here, we focus on a case study and conceptual mapping of the Yakima River Basin (YRB), a sub-basin of the CRB. Previous research on FEW system management and resilience includes some attention to social dynamics (e.g., economic and governance systems); however, more attention to social drivers and …

Taking The Public Out Of Public Lands: Shifts In Coal-Extraction Policies In The Trump Administration, Jessica Owley

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No abstract provided.

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

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Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks

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No abstract provided.

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

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This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

The Flipside Of Michigan V. Epa: Are Cumulative Impacts Centrally Relevant?, Sanne H. Knudsen

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This Article explores the flipside of Michigan--where the Court's logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate.

In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this Article …

Modernization Of The Columbia River Treaty: An Opportunity For Idaho, Barbara Cosens

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No abstract provided.

Wrongful Benefit & Arctic Drilling, Nicolas Cornell, Sarah E. Light

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The law contains a diverse range of doctrines — “slayer rules” that prevent murderers from inheriting, restrictions on trade in “conflict diamonds,” the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit …

Beyond Zero-Sum Environmentalism, Jessica Owley, Shalanda Baker, Robin Kundis Craig, John Dernbach, Keith Hirokawa, Sarah Krakoff, Melissa Powers, Shannon Roesler,, Jonathan Rosenbloom, J. B. Ruhl, Jim Salzman, Inara Scott, David Takacs

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Environmental law and environmental protection are often portrayed as requiring trade offs: "jobs versus environment," "markets versus regulation," "enforcement versus incentives." In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with …

Too Big To Disclose: Firm Size And Materiality Blindspots In Securities Regulation, George S. Georgiev

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This Article argues that the securities disclosure regime contains previously unexamined structural deficiencies that pertain to the information provided by the largest public companies. These deficiencies arise from the operation of the materiality standard, a core element of the disclosure regime that is used in a number of SEC disclosure rules. The materiality standard is designed to limit firms' disclosure to information that would be of importance to investors, and to prevent the overproduction of information. I suggest, however, that in the case of large firms the materiality standard can also lead to the underdisclosure of information-or to "materiality blindspots." …