Environmental Law Commons^™

New Priorities As The Endangered Species Act Turns 40, Dale Goble

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The Increasing Privatization Of Environmental Permitting, Jessica Owley

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Hydraulic Fracturing: Sources Of Law And Information, Barbara H. Garavaglia

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Hydraulic fracturing—also known as fracking—has become increasingly controversial in the United States over the past several years, especially in states such as Michigan with large shale gas deposits that were previously unextractable. In 2012, a Michigan fracking ban initiative failed to make it onto the November statewide ballot, but citizens groups are presently collecting signatures in an attempt to get the initiative onto the November 2014 ballot as an “initiated state statute.” And, more recently, state auctions of drilling permits have been the scenes of citizen protests driven by concerns about the potential environmental impacts of hydraulic fracturing.

Rulemaking As Politics, Thirty Years On, Michael Herz

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Chevron, Greenwashing, And The Myth Of “Green Oil Companies”, Judd F. Sneirson

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As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon and …

Using Conservation Management Agreements To Secure Postrecovery Perpetuation Of Conservation-Reliant Species: The Kirtland's Warbler As A Case Study, Dale Goble

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Kirtland’s warbler is one of many conservation-reliant species listed under the Endangered Species Act (ESA). This species has met recovery goals, but removing it from the protections of the ESA is problematic because of its reliance on ongoing conservation. We define conservation management agreements (CMAs) and describe how they may provide a mechanism to protect conservation-reliant species after delisting. We suggest that CMAs should include four major elements: (1) a conservation partnership capable of implementing management actions at conservation-relevant scales, (2) a conservation management plan based on the management actions in the species’ successful recovery plan, (3) sufficient financial resources …

A State-Based National Network For Effective Wildlife Conservation, Dale Goble

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State wildlife conservation programs provide a strong foundation for biodiversity conservation in the United States, building on state wildlife action plans. However, states may miss the species that are at the most risk at rangewide scales, and threats such as novel diseases and climate change increasingly act at regional and national levels. Regional collaborations among states and their partners have had impressive successes, and several federal programs now incorporate state priorities. However, regional collaborations are uneven across the country, and no national counterpart exists to support efforts at that scale. A national conservation-support program could fill this gap and could …

Conservation Reliant-Species, Dale Goble

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A species is conservation reliant when the threats that it faces cannot be eliminated, but only managed. There are two forms of conservation reliance: population- and threat-management reliance. We provide an overview of the concept and introduce a series of articles that examine it in the context of a range of taxa, threats, and habitats. If sufficient assurances can be provided that successful population and threat management will continue, conservation-reliant species may be either delisted or kept off the endangered species list. This may be advantageous because unlisted species provide more opportunities for a broader spectrum of federal, state, tribal, …

Occupational Noise Exposure Of Nightclub Bar Employees In Ireland, Gary Henehan, Aoife Kelly, Sara Boyd, Gordon Chambers

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Due to the transposition of the EU Directive 2003/10/EC into Irish Law, the entertainment sector was obligated to comply with the requirements of the Safety, Health and Welfare at Work (General Application) Regulations 2007, Chapter 1 Part 5: Control of Noise at Work since February 2008. Compliance with the Noise Regulations was examined in 9 nightclubs in Ireland. The typical daily noise exposure of 19 bar employees was measured using 2 logging dosimeters and a Type 1 fixed position sound level meter. Physical site inspections identified nightclub noise control measures. Interviews and questionnaires were used to assess the managers and …

Neoliberal Land Conservation And Social Justice, Jessica Owley

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Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably

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Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.

Three basic symptoms of the pathology stand out. First, sleight of hand. The plurality opinion purports to be about an institutional issue-can a state court commit a taking? - …

Remedying The Misuse Of Nature, Sanne H. Knudsen

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As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer.

In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private …

The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann

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When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …

Chair's Message, Michael Herz

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Giving Voice To Rachel Carson: Putting Science Into Environmental Law, William H. Rodgers, Jr.

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Certainly, the most pressing issue of modern times is to develop a body of environmental law (that includes climate change) that is highly responsive to science. Without demeaning the many distinctions between the exercise of science and the practice of law, let me cut to the chase and declare that science is mostly about the “pursuit of truth” and law is mostly about “who wins.” Anybody who doubts this proposition should examine the radical differences between the “Supreme Court of Science” in the United States and the Supreme Court of Law.

The Supreme Court of Science, the National Research Council, …

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

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This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

Distributed Graduate Seminars: An Interdisciplinary Approach To Studying Land Conservation, Jessica Owley, Adena R. Rissman

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Conservation Easements At The Climate Change Crossroads, Jessica Owley

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Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

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The Enforceability Of Exacted Conservation Easements, Jessica Owley

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Sequential Climate Change Policy, Edward A. Parson, Darshan Karwat

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Successfully managing global climate change will require a process of sequential, or iterative, decision‐making, whereby policies and other decisions are revised repeatedly over multiple decades in response to changes in scientific knowledge, technological capabilities, or other conditions. Sequential decisions are required by the combined presence of long lags and uncertainty in climate and energy systems. Climate decision studies have most often examined simple cases of sequential decisions, with two decision points at fixed times and initial uncertainties that are resolved at the second decision point. Studies using this formulation initially suggested that increasing uncertainty favors stronger immediate action, while the …

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

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The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

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The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

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This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common features …

Trick Or Treat: The Ethics Of Mediator Manipulation, Jim Coben, Lela P. Love

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Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably "manipulative," in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is …

The Deepwater Horizon Oil Spill: Potential Insurance Coverage Implications, Lynn K. Neuner, W. Nicholson Price

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More than 300 lawsuits have already been filed in Louisiana, Florida, Texas, Mississippi, and Alabama against BP and other corporations involved in the Deepwater Horizon oil spill, including Transocean, Halliburton, and Cameron, with thousands more anticipated. This article briefly addresses the contours of the coverage lawsuit already filed against BP and other coverage disputes we may see in the future.

Rethinking Trust Law Reform: How Prudent Is Modern Prudent Investor Doctrine?, Stewart E. Sterk

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During the 1990s, modern portfolio theory provided the theoretical foundation for significant reforms in trust investment doctrine-reforms that freed trustees from a legal regime in which they faced potential liability for making "speculative" investments. The reforms enabled trustees to pursue investment policies that protected beneficiaries against inflation risk. But the reforms worked too well; they encouraged trustees to invest a higher percentage of trust assets in equities just in time for a decade that has seen two precipitous stock market declines. Although no sensible investment strategy would have avoided losses during these periods of market turmoil, the doctrinal reforms endorsed …

The Roberts Court And The Environment, Stephen M. Johnson

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During the October 2008 Term, the Supreme Court decided five cases that raised issues of environmental law and the environment was the loser in each case. While it may be difficult to characterize the decisions of the Roberts Court, generally, as “pro-environment” or “antienvironment,” a couple themes consistently appear in the Court’s decisions. First, in most of the environmental cases, the Court has adopted a position advocated or defended by a federal, state or local government when governmental interests are at issue. Second, in all of the cases that implicate federalism concerns, the Court has rendered decisions that favor States’ …

A Fish Tale: A Small Fish, The Esa, And Our Shared Future, Dale Goble

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The objective of the Endangered Species Act is to "recover" imperiled species and thus to render the Act's conservation tools unnecessary To achieve this goal, the drafters of the Act crafted a linear process that begins with an assessment of the threats facing the species and moves through the elimination of those threats to the recovery and delisting of the species. It has become increasingly apparent over the past decade that few species fit this model- most species face threats-altered habitats and competition with invasive species-that cannot be eliminated. These species are "conservation reliant" because they will require ongoing conservation …

'Have We All Gone Bats?' - The Strict Protection Of Wildlife Under The Habitats Directive And Tourism Development: Some Lessons From Ireland, Marc Mcdonald

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This article explores the impact of the legal protection of bats under EU wildilfe legislation on tourism development in Ireland.