Environmental Law Commons^™

Climate Change And Cercla Remedies: Adaptation Strategies For Contaminated Sediment Sites, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This article considers climate change questions in the context of a particular type of contaminated site--sites with contaminated sediments subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Although climate change may impact a variety of waste sites in different ways, even those without sediment contamination, this article focuses on sediment sites so as to frame a more manageable inquiry susceptible to in-depth treatment. The following section, Part II, identifies the vulnerability of contaminated sediment sites to climate change. The section describes sediment contamination, regulatory approaches to remediating contaminated sediments, and how climate change may impact sediment remedies. …

Managing Climate Change Through Biological Sequestration: Open Space Law Redux, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Climate change management involves strategies that mitigate its causes and adapt human communities to its consequences. This article describes a legal strategy that does both: a national biological sequestration policy. This policy will increase the amount of carbon dioxide emissions that biological sequestration currently removes from the atmosphere and will enable human settlements to adapt to the harsh effects of a changing climate, while realizing a number of other objectives that preserved open space preservation achieves. The article sketches the influences of international and national climate change law, which largely ignore the benefits of biological sequestration on privately owned land …

Keeping It Legal: Transboundary Management Challenges Facing Brazil And The Guarani, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This paper examines the legal and ecological problems facing the Guarani Aquifer System. Because the majority of the Guarani Aquifer System underlies Brazil, the Brazilian legal regime forms the paper’s principal focus. The importance of the region makes the need for accurate information crucial. Yet relying on such information to manage a complex resource presents risks. Too often, the role of uncertainty in regulating is underplayed. Increasing knowledge over the resource demands categorizing “hard” and “soft” uncertainties, especially those presented by climate change. In addition, regulators must acknowledge the unitary nature of the aquifer while remaining sensitive to differing national …

Making Sand Castles As The Tide Comes In: Legal Aspects Of Climate Justice, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Achieving climate justice and the Millennium Development Goals (“MDGs”)2 are mutually reinforcing challenges. The achievement of both is well within the capacity of the international community. Indeed, reaching carbon neutrality in an affordable, environmentally sound way requires integrating the strategies of mitigation, adaptation, sustainable development, and disaster risk management.

Integrating Sustainable Development Planning And Climate Change Management: A Challenge To Planners And Land Use Attorneys, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.

Water, Climate, And Energy Security, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Civil society participation can facilitate sound energy, climate, and water governance. This article analyzes the dynamics of transnational decision-making. Part II discusses sound energy strategy in light of a shrinking water-resources base due to climate change. Part III considers how public participation in international decision-making can sustain trust in governments and strengthen the legitimacy of legal decisions. Part IV concludes that process and outcome are both integral to addressing water, climate, and energy challenges.

The Cancún Climate Conference, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Innovation Cooperation: Energy Biosciences And Law, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the development and dissemination of environmentally sound technologies that can address climate change. Climate change poses catastrophic health and security risks on a global scale. Universities, individual innovators, private firms, civil society, governments, and the United Nations can unite in the common goal to address climate change. This Article recommends means by which legal, scientific, engineering, and a host of other public and private actors can bring environmentally sound innovation into widespread use to achieve sustainable development. In particular, universities can facilitate this collaboration by fostering global innovation and diffusion networks.

Energy Revolution And Disaster Response In The Face Of Climate Change, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This article considers the means by which communities can become increasingly resilient through shared best practices across a range of climate change measures. Part II of this article will address emergency preparedness for effective disaster response. Part III will analyze how decision-makers can use adaptive management in a shared local, regional, national, and international cohesive frame- work. Part IV will recommend resilient green building strategies. This article concludes that in the midst of an unprecedented energy revolution, there are meaningful emergency preparedness measures that the international community can facilitate to build resilience in the face of natural and unnatural disasters.

Food, Law & The Environment: Informational And Structural Changes For A Sustainable Food System, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article considers legal, theoretical, and practical steps to a more sustainable food model. Part I discusses the underlying reasons for problems in the current food system, including those manifested in law, and the perceived benefits of creating a new agricultural paradigm. Part II discusses the major agricultural and food programs that have become more common in shaping a different food system model, specifically focusing on direct marketing (for example, farmers markets and community-supported agriculture) and the organic movement as it relates to small farmers. Part III argues that in order to change modern American food consumption, two changes must …

The Future Of Food Eco-Labeling: Organic, Carbon Footprint, And Environmental Life-Cycle Analysis, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article discusses public and private efforts to inform consumers about environmentally preferable food choices. Part II describes the environmental consequences of the modern food system. Part III describes existing public and private eco-labeling regimes, including organic labeling, carbon footprint labeling, and country of origin labeling.

Capturing Individual Harms, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism. Using climate change and individual greenhouse gas (“GHG”) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed …

Water Law In The United States And Brazil--Climate Change & Two Approaches To Emerging Water Poverty, David N. Cassuto, Romulo S.R. Sampaio

Elisabeth Haub School of Law Faculty Publications

This article examines two of the major water legal regimes in the Americas-that of Brazil and the United States. Both countries have extensive wet and dry regions and both hydro-regimes face a significant threat from global warming. Brazil, for instance, is home to between eight and fifteen percent of the world's fresh water, and its fast-growing economy and population present major challenges in management and allocation. The U.S. also faces major water allocation problems resulting from past settlement policies; unsustainable reclamation projects; and also fast-growing domestic, industrial and agricultural demand. In the United States, water has traditionally been perceived as …

Climate Policy & U.S.-China Relations, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

The Chinese stance, that no cap on carbon emissions will ever exist no matter how high, may be a product of China's belief in a cold and hard, and potentially true, reality-that global economic power is paramount and will provide the only avenue to adapt to an inevitable climate crisis, as well as achieve the milestones of superpower status, many of which they have already achieved (e.g., Olympic Games, World Expo, United Nations Security Council). While China's policy remains problematic, as is United States' failure to lead in the international community on the issue of climate change, China's actions, while …

From Coase To Collaborative Property Decision-Making: Green Economy Innovation, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This Article considers the advantages and disadvantages of market-based program design, natural gas regulation, and enhanced international understanding. Transitioning to a green economy involves dedicating efforts towards environmentally sound energy innovation. RGGI, natural gas, and climate change represent sustainability challenges. Optimizing cooperative transboundary green innovation can facilitate inclusive decision making just as public participation by civil society can help economies transition to environmentally sound energy use. Building upon progress made in the human lights and environment fields can advance both and enhance resilience.

Siting Green Infrastructure: Legal And Policy Solutions To Alleviate Urban Poverty And Promote Healthy Communities, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

Green infrastructure is an economically and environmentally viable approach for water management and natural resource protection in urban areas. This Article argues that green infrastructure has additional and exceptional benefits for the urban poor which are not frequently highlighted or discussed. When green infrastructure is concentrated in distressed neighborhoods—where it frequently is not—it can improve urban water quality, reduce urban air pollution, improve public health, enhance urban aesthetics and safety, generate green collar jobs, and facilitate urban food security. To make these quality of life and health benefits available to the urban poor, it is essential that urban leaders remove …

Public Trust Limits On Greenhouse Gas Trading Schemes: A Sustainable Middle Ground?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

There is a some consensus among economists, environmentalists, and politicians that some form of “cap and trade’ program is the appropriate regulatory mechanism to achieve the greenhouse gas emissions reductions necessary to avoid disastrous global climate disruptions. “Cap and trade” programs necessarily incorporate tradable emissions rights – essentially tradable rights to pollute. As such, they run into principled objection by some environmentalists who oppose the notion of creating economic rights in the global commons – essentially the “right to pollute.” This principled objection derives doctrinal support from the public trust doctrine – the ancient notion rooted in common law and …

The Law Of Sustainable Development: Keeping Pace, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes the emerging field of sustainable development law and examines whether it is up to the challenge it faces. In a world of finite resources overrun by sprawl, threatened by climate change, short on fuel, and long on greenhouse gas emissions, the law must keep pace. After discussing what sustainable development law is, the article considers the relationship between change in society and the evolution of legal principles, strategies, and practices, particularly with respect to land use, property, and natural resources. Documented in this review is the steady change exhibited in the common law applicable to the ownership, …

Success Or Failure?, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

The Copenhagen Climate Conference and its Copenhagen Accord have generally been billed by the press as having been a failure. I think this is a very unfortunate mischaracterisation. The conference was a failure only in not achieving binding commitments to reduce global greenhouse gas (GHG) emission levels sufficiently to meet the requirements identified by the some 3,000 leading global scientists of the UN International Panel on Climate Change (IPCC) to avoid disastrous consequences – such as sea-level rise leading to massive migration, food disruption, water shortages, tropical disease migration, biodiversity destruction, etc. But the conference didn’t expect that this could …

Understanding Cercla Through Webster's New World Dictionary And State Common Law: Forestalling The Federalization Of Property Law, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") was hastily enacted in 1980 in the wake of the Love Canal disaster, where vast amounts of toxic wastes were found buried beneath a residential community. The contours of this legislation, though comprehensive in its outward scope, have been difficult to discern, largely as a consequence of vague and confusing expression. Though often the first tool resorted to for interpretation is the dictionary, the courts have looked beyond the literal terms, in an effort to determine the intended and sensible limits, consistent with both the congressional aim to reach broad categories …

Climate Change Displacement To Refuge, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Emerging Law Addressing Climate Change And Water, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

The World Economic Forum recognizes that while restrictions on energy affect water systems and vise versa, energy and water policy are rarely coordinated. The International Panel on Climate Change predicts that wet places will become wetter and dry places will become dryer. Transboundary water, energy and climate coordination can occur through international consensus building.

Non-State Actor Access And Influence In International Legal And Policy Negotiations, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This article analyzes the importance of increasing civil society actor access to and influence in international legal and policy negotiations, drawing from academic scholarship on governance, conservation and environmental sustainability, natural resource management, observations of civil society actors, and the authors’ experiences as participants in international environmental negotiations.

Transcript of panel discussion at McGill University, March 26, 2010. This piece is based on the article Elizabeth Burleson & Diana Pei Wu, Non-State Actor Access and Influence in International Legal and Policy Negotiations, 21 Fordham Envtl. L. Rev. 193 (2010).

Bundling Public And Private Goods: The Market For Sustainable Organics, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation.

In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA's primary purposes are to facilitate the growth of the organic sector and …

Investment In Water And Wastewater Infrastructure: An Environmental Justice Challenge, A Governance Solution, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

This article evaluates the impact of the growing presence of privatized water and wastewater infrastructure projects in some of the world’s most populous countries: China, India, the United States, Brazil, and Nigeria. Together, these nations account for nearly 50 percent of the world’s population. The article discusses environmental justice issues associated with contaminated drinking water and insufficient sanitation and explores the role that public versus private ownership of water infrastructure plays in ensuring access to clean water for the lower-income echelons of society. It articulates the importance of the rule of law and sound environmental governance in this arena and …

Climate Change Consensus: Emerging International Law, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

China In Context: Energy, Water, And Climate Cooperation, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Climate Change And Sustainable Development: The Quest For Green Communities, Part Ii, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This is the second part of Professor John R. Nolon’s two-part series on climate change mitigation through sustainable development law. Part I ran in October 2009 http://digitalcommons.pace.edu/lawfaculty/646/. In Part I, I argued that local governments should be partners with federal and state governments in managing climate change. This may sound incongruous to the ears of those listening to the debates over cap-and-trade legislation. In that context, state and local programs that cap, auction, tax, regulate, track, or otherwise attempt to manage greenhouse gas emissions are criticized on a number of grounds. The same can be said when the debate turns …

Climate Change And Sustainable Development: The Quest For Green Communities, Part I, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This is the first of two commentaries that explore the role of local governments in mitigating and adapting to climate change through sustainable development strategies. They focus on the significant authority to regulate land use and building construction that is delegated to local governments by their states, and how that authority can be coordinated with the roles and responsibilities of state and federal governments to manage climate change and achieve sustainable development.

Petition Clause Interests And Standing For Judicial Review Of Administrative Lawmaking, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the primary roles of agencies in the modern administrative state is the promulgation of rules and regulations governing primary conduct. Separation of powers and non-delegation concerns have evolved into very weak limits on the scope of agency lawmaking authority. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. Particularly in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations--so called “regulatory objects”-- enjoy presumed standing to challenge the scope of agency regulations. Groups of …