Environmental Law Commons^™

Changing Times--Changing Practice: New Roles For Lawyers In Resolving Complex Land Use And Environmental Disputes, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Following this introduction is a discussion of the many excellent papers by academics, practitioners, and students contained in this themed Kheel edition of the Pace Environmental Law Review. The article continues with an analysis of the practice of law and how it is affected by the advent of environmental interest dispute resolution.

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

Wind Power, National Security, And Sound Energy Policy, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Wind-generated electricity in the United States has grown by more than 400 percent since 2000. According to the Department of Energy, 6 percent of US land could supply more than one and a half times the current electricity consumption of the country. Yet, challenges remain in matching demand for electricity with supply of wind as well as achieving grid parity. Careful wind turbine and transmission line siting can occur through cooperation between federal, state, tribal, and civil society participation in decision-making. Tribal wind initiatives have shown that developing wind power can also benefit rural communities. Congress should pass a national …

Nepa At 40: International Dimensions, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Section 102 of the National Environmental Policy Act (NEPA) contains a broad mandate to apply the policies of § 101 on an international plane. I explored these concepts initially on assignment as a member of the Legal Advisory Committee to the Council on Environmental Quality (CEQ) in 1969-1971, and published the analysis in 1974, after that Committee wound up its business. It is time for the CEQ to revisit the rest of § 102, and elaborate guidance and regulations for federal agencies to comply with and use the environmental management mandates in § 102(A), (B), (E), (F), (G), and (H).

A River Beckons Home, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Energy Policy, Intellectual Property, And Technology Transfer To Address Climate Change, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Using Local Knowledge To Shrink The Individual Carbon Footprint, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Entire texts have been devoted to exploring the meaning of the term “lifestyle” and sociological understandings of lifestyle are complex and nuanced.For present purposes, however, a more simple articulation of the term will suffice. Lifestyle can mean “mode of living,” including “patterns of action” and “patterns of ways of living.” Without rendering judgment, one observation that can fairly be made about the current lifestyles and associated behaviors of Americans is that they indirectly and directly lead to the emission of a high volume of greenhouse gases (“GHGs”).⁷ Although an American diplomat is said to have remarked in preparing for …

The Land Use Stabilization Wedge Strategy: Shifting Ground To Mitigate Climate Change, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes how local governments, through the clever application of existing land use techniques, can mitigate climate change. This strategic path follows one developed by Princeton professor Robert Socolow, who identified and described fifteen categories for organizing society’s climate change mitigation efforts. Five of Socolow’s strategic categories fall within the reach of local land use authority: reduced use of vehicles, energy efficient buildings, vegetative carbon sequestration, wind power, and solar power. Through the aggregation of these local land use techniques, significant energy savings and carbon dioxide (CO2) reduction can be achieved. After making some background points, this article describes …

Foreword: Energy And The Environment: Empowering Consumers, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The conference Energy and the Environment: Empowering Consumers brought together legal scholars, attorneys, scientists, philosophers, journalists, sociologists, elected representatives, and agency experts. This symposium issue of the Hofstra Law Review presents a selection of papers from conference participants that, together, illustrate some of the opportunities, challenges, and diverse questions that arise in the effort to deploy energy and environmental law and policy to embrace individual consumers and combat climate change.

Rising Tides-Changing Title: Walton County V. Stop The Beach Renourishment, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article first discusses the facts of the Walton County case and how the statute affects title to coastal parcels and then turns to an analysis of the fee simple absolute title to coastal properties in Florida, how deeds are drawn, and how title is insured under title company practices. This is followed by a further exploration of the regulatory taking issue and then the judicial taking claim. We then explore the tension that the judicial takings issue raises regarding the jurisdiction of federal and state courts. The article then takes a look at the property interests--the sticks in the …

Biofuels: Potentials, Problems & Solutions, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

Biofuels have the exciting potential of mitigating the grave threats of global warming, reducing the world's dependence on imported oil from insecure sources and of reducing the skyrocketing costs of oil that are threatening to undermine the world's economies and devastating the people in non-oil producing, developing countries. For the people in these countries, biofuel offer a promising road to enhance development since they use local materials, can provide local jobs, and do not require the import of expensive equipment and expertise. Brazil has been the pioneer in the use of biofuel, allowing it to eliminate its oil imports, becoming …

Bill Would Encourage Effective Dispute Resolution, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many of the processes involved in traditional local land use review procedures involve two or more adversarial parties arguing their position with little to no consideration for the other party’s interest, and no regard for mutually beneficial outcome. This article describes a proposed New York law that would promote the use of mediation to supplement the traditional process. The article discusses studies geared towards testing the effectiveness of mediation, gives a review of out of state mediation legislation, as discusses corresponding court decisions. Finally, the article concludes with a review of the traditional roles of lawyers in the process, and …

Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates these five wedges and further organizes strategic energies. This builds on Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” I assert that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world.” The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the country.

The Externalities Of Nuclear Power: First, Assume We Have A Can Opener . . ., Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The nuclear power industry has latched on to global warming as an argument for its renaissance. Although even industry proponents acknowledge that the problem of disposing of spent nuclear fuel remains unsolved, the industry routinely assumes this problem will be solved in the future. Unfortunately, this is the same assumption made by nuclear energy proponents at the beginning of the nuclear industry fifty years ago. We haven’t solved the nuclear waste problem in the past half century, and there is no reason to think we will be more likely to do so in the next one. Like the shipwrecked economist …

Remedying Our Fragmented Governmental Structures To Deal With Our Nation-On-Edge Problems, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The argument against crafting federal regulations for problems stemming from development in disaster-prone areas (nation-on-edge problems) assumes that these types of problems are essentially local problems requiring unique local solutions. In this Article, Jeffrey G. Miller challenges this assumption, reasoning that a flexible framework of federal regulations would indeed be effective at remedying these problems. He suggests that such a framework could be modeled after the Clean Water Act's (CWA's) point source pollution control regime. A permitting system similar to that set out in the CWA would promote best management practices while still allowing local entities the freedom to determine …

The Protection Of The Marine Environment From Land-Based Pollution And Activities: Gauging The Tides Of Global And Regional Governance, Ann Powers

Elisabeth Haub School of Law Faculty Publications

After providing an introductory overview of the major land-based threats to the marine environment, this article focuses upon the specific global and regional efforts to address land-based marine pollution and activities through a four-part survey. The main international initiative is first described, namely, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA). Progress in GPA implementation is next assessed with an emphasis on the documentation and results from the Second Intergovernmental Review Meeting on Implementation of the GPA held in October 2006. Major challenges constraining GPA implementation are then summarized, including limited national …

The Future Of Our Land: Presidential Leadership, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Open letter to the President.

The Role Of Lawyers In Resolving Environmental Interest Disputes, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the role of lawyers and the tools they can use in the resolution of environmental interest disputes. We draw on the decades-long work of ADR professionals in this area as well as the professional experience of attorneys and the skills they have honed in the context of “rights based” and “rights to process” disputes. By “environmental interest disputes” we include both emerging conflicts and current disputes among multiple parties over the use and abuse of land, air, water, surface, and subsurface resources whose resolution is unlikely to occur in traditional adjudicatory tribunals such as courts and administrative …

Losing Ground: Nation On Edge, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The primary objective of our book is to refocus attention on the mitigation element of this enduring debate. The chapters in this edited volume grow out of our multiyear program entitled Nation on Edge. The purpose of this program was to draw together leading scholars and practitioners in a collective conversation on the subject of disaster mitigation; that is, on questions of how government can better manage private and public decisionmaking and can more effectively regulate the use of private property in order to curtail damage from inevitable disasters. Our book stands alongside the expanding collection of government reports, essays, …

A Climate Of Extremes: Transboundary Conflict Resolution, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

How do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the United States Courts of Appeals over a three-year period (2003-05) to investigate what factors, including ideological, legal, …

A Review Of Barriers To Biofuel Market Development In The United States, Karl R. Rábago

Elisabeth Haub School of Law Faculty Publications

In recent years, biofuel markets have begun a resurgence. At one time, biofuels were the only way humanity obtained useful energy, but they were almost totally displaced by fossil fuels during the last century. Now, due to a range of drivers, they have begun a small but seemingly solid comeback. This Article reviews the remaining barriers to full commercial success for biofuels in the United States with an emphasis on transportation fuels. While recent success has been impressive, markets for transportation biofuels are hardly “self-sustaining” in the purest sense of the concept. The author does not seek to disparage the …

Advancing Environmental Law At Pace: A Personal Memoir, A Continuing Challenge, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

How did an unaccredited law school, admitting its first students in 1976, become renowned as a national and international leader in environmental education in less than three decades? What did Pace have to attract some of America’s brightest and best college graduates to pursue their careers in environmental law in White Plains? Why did Yale Law School’s Dean Anthony Kronman, in 1999, call Pace’s program one to which “other law schools look with admiration and envy…one of the best in the country, indeed the world…”

Each generation of alumni intimately knows the answer to these questions, but through the lenses …

Farming The Ocean, Ann Powers

Elisabeth Haub School of Law Faculty Publications

Was that salmon you ate for lunch caught in the wild, chill waters of the North Atlantic? What about the mussels you had last night? Did they arrive on your table through traditional capture techniques, or were they a product of the fish-farming industry? And if so, does it matter? What else in your daily life might be a result of deliberate culture of once wild species? Protein in your pet's food, gel in your toothpaste and cosmetics, thickener in your pasta sauce, the seaweed in your sushi? For the most part we pay little attention to where our foods …

Zoning, Transportation, And Climate Change, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

On February 2, 2006, the Intergovernmental Panel on Climate Change (IPCC) expressed the consensus of the scientific community that global warming is unequivocal and that its main driver is human activity. On April 7, 2007, the IPCC issued a second report detailing the likely consequences of climate change: widening droughts, more severe storm events, increased inland flooding, sea level rise, and consequent inundation of low lying lands. The Center for Climate Systems Research at Columbia University estimates that sea levels around New York City’s boroughs will increase by five inches by 2030, with some estimates predicting up to 12 inches …

Climate Change As A Global Challenge, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Green Light For Green Infrastructure, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …

"Forever Wild": New York's Constitutional Mandates To Enhance The Forest Preserve, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Professor Robinson explores some of the evident, and also some of the less apparent legal implications that can be drawn from recognizing the implicit “land ethic” that resides within the “forever wild” conception of the Forest Preserve in New York’s Constitution. It is his thesis that the executive branch of State government, our Governors and most of our other State and local authorities, have observed the mandates of Article XIV most shallowly. They have ignored their stewardship duties to promote “forever wild forest lands.” Civic groups, and courts should not only concern themselves with the task of keeping government from …

Keynote Address: We Must Take America Back, Robert F. Kennedy, Jr.

Elisabeth Haub School of Law Faculty Publications

I want to talk about what is happening in the United States, and the connection between the environment and democracy, and the corrosive impact of excessive corporate power and the impact to democracy everywhere. But particularly I want to focus on American democracy.