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Elisabeth Haub School of Law Faculty Publications

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Articles 241 - 270 of 313

Full-Text Articles in Environmental Law

Development Agreements: Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, Shelby D. Green Jan 2004

Development Agreements: Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the new model of land use decision-making that is based upon bargaining with the landowner. The fact of a bargain raises the issue of whether such bargaining amounts to “contract zoning” based upon a bilateral contract between the municipality and the landowner, which is largely held to be illegal, or a related form of bargaining, not involving an exchange of promises in the context of a bilateral agreement--“conditional zoning.” Part II of this Article discusses the emergence of the development agreement, which involves a contract with a municipality and the developer under which the developer is assured …

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Exacted Conservation Easements: The Hard Case Of Endangered Species Protection, Jessica Owley Lippmann Jan 2004

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

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Land Preservation, John R. Nolon Jan 2003

Land Preservation, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This exploration of local preservation law and practice recognizes the critical influences of federal, state, and regional governments. Local governments are instruments of state governments; municipalities derive their authority from state statutes. Extensive control over land use has been given to localities, but important powers have been retained. State governments are the partners of federal agencies that are charged with protecting environmental resources that are subject to federal jurisdiction. The land use system that has evolved over the last century in this country is intensely intergovernmental and interdependent. While this system was not designed as a whole and is often …

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Defining The Project Purpose Under Nepa: Promoting Consideration Of Viable Eis Alternatives, Jason J. Czarnezki Jan 2003

Defining The Project Purpose Under Nepa: Promoting Consideration Of Viable Eis Alternatives, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Comment examines how courts should construe EIS project goals under NEPA. Part I provides the basic foundation for EIS alternative analysis by outlining NEPA's goals, framework, and legal development. Part II identifies and discusses two conflicting positions in current case law supporting narrow versus general goal formulations in project purpose evaluation. To resolve this conflict, Part III suggests that courts should reject the narrow formulation in evaluating a project's purpose and objectively inquire into the effect and purpose of the agency's action.

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Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon Jan 2003

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an …

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The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers Jan 2003

The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers

Elisabeth Haub School of Law Faculty Publications

The article first summarizes CWA requirements relevant to TMDLs and outlines elements of an effective trading program. It then examines the program recently established by the State of Connecticut to allow trading of nitrogen credits among sewage treatment plants on Long Island Sound to achieve an established TMDL, and the CWA issues presented. Finally, it gives a brief comparison to the program being designed for the Chesapeake Bay, for which no TMDL has been established. Current brief descriptive summaries of several often cited programs are appended.

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Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson Jan 2003

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental norms are observed because they are norms about how people respect each other and the natural systems that sustain human communities. Environmental norms are basic to human well-being. They arise out of the human condition, not unlike human rights laws. Environmental norms emerge from the fact that humans exist within ecosystems, and human society is embedded in the natural systems in which they have evolved; environmental norms are grounded in an objective reality, and scientists can measure the consequences of observing--or failing to observe--those norms. The provisions of environmental norms, therefore, exist not merely as pronouncements of governments, applied …

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Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan Jan 2003

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …

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Piney Run: The Permits Are Not What They Seem, Jessica Owley Lippmann Jan 2003

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

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Foreword: Annual Review Of Environmental And Natural Resources Law, Jessica Owley Lippmann Jan 2003

Foreword: Annual Review Of Environmental And Natural Resources Law, Jessica Owley Lippmann

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller Jan 2003

Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Congress sought to attain full compliance with environmental statutes. It reasoned that multiple enforcers would provide more comprehensive and effective enforcement than one enforcer. Congress therefore empowered the Environmental Protection Agency (EPA), the states and private citizens as enforcers of the statutes. However, Congress worried that successive actions by multiple enforcers could bring disruption and conflict to enforcement litigation and remedies. It therefore included in the citizen suit provision of each statute a limited, three-element notice, delay, and bar preclusion device to manage successive citizens' enforcement against the violations already subject to government enforcement. The device generally bars citizens from …

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Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson Jan 2002

Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

ASEAN was founded with the 1967 Bangkok Declaration in order to encourage stable relations among its original member states, i.e. Indonesia, Malaysia, Singapore, Thailand and the Philippines, and to resist destabilizing influences from the war in Viet Nam. The means to stability was to promote economic, social and cultural cooperation in the spirit of equality and partnership. A formal treaty system was not required. As the Viet Nam war ended, ASEAN held its first Summit Meeting in Bali (1976), followed by the 1977 Summit in Kuala Lumpur, where cooperation on regional industrializations was launched. In this first phase of cooperation, …

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Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson Jan 2002

Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental management has emerged as an important element of governance in practically every nation. This was not the case before the United Nations convened the 1972 Conference on the Human Environment in Stockholm. After Stockholm, nations learned to build environmental ministries and work across sectors nationally, and discovered how difficult it is to reshape entrenched national practices in order to curb pollution and conserve natural resources. With growing experience and knowledge, nations came to realize that no one government alone could safeguard the environment, and that international cooperation would need to be enhanced.

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Water Quality Trading: Bringing Market Forces To Bear In Watersheds, Alexandra Dapolito Dunn Jan 2002

Water Quality Trading: Bringing Market Forces To Bear In Watersheds, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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In Praise Of Parochialism: The Advent Of Local Environmental Law, John R. Nolon Jan 2002

In Praise Of Parochialism: The Advent Of Local Environmental Law, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explains the role that local governments have assumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state level. Part II reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how …

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A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller Jan 2002

A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

I have been privileged to hear, enjoy and learn from the talks of each of our Garrison Lecturers during the last eight years, as well as our discussions with them here today. In preparation for my duties as a summarizer, I studied their talks, printed in our Pace Environmental Law Review. I was delighted to find that the body of their commentary is far more than the sum of its parts. Together our lecturers take us on a grand journey through the history of modern environmental law, its heroes and villains, its accomplishments and its weaknesses. Together they sound all …

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Introduction: Considering The Trend Toward Local Environmental Law, John R. Nolon Jan 2002

Introduction: Considering The Trend Toward Local Environmental Law, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In this symposium issue of the Pace Environmental Law Review we take a close look at the advent of local environmental law. With the editors of the Review and a number of distinguished scholars and practitioners, we define what this new field is and consider what it means for public policy and the practice of law. The intent of this issue is to invite lawyers, scholars, practitioners, legislators, regulators, students, and citizen leaders to consider this burgeoning new field: local environmental law. It is my task to introduce the reader to the field and frame the issues for its further …

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Renewable Energy Sources For Development, Richard L. Ottinger Jan 2002

Renewable Energy Sources For Development, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

Renewable energy resources hold great promise for meeting the energy and development needs of countries throughout the world. This promise is particularly strong for developing countries where many regions have not yet committed to fossil fuel dominance. Solar photovoltaic and solar thermal technologies are particularly advantageous for serving the two billion people in rural areas without grid electricity. Modern biomass energy is attractive because it uses locally available agricultural wastes. Wind energy and small hydroelectric resources also are mature technologies well suited to developing countries. Such renewable resources are far more economical than traditional energy resources, especially where the costs …

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Dean's Foreword, David S. Cohen Jan 2002

Dean's Foreword, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

This issue of the Pace Environmental Law Review contains a description of this emerging field of law and the response of the academic and legal community to it. As Professor Nolon reports in his introduction, we found eloquent coherence in these laws and saw how they fit together to form a comprehensive whole. We examined state statutes that authorized local governments to adopt environmental laws and discovered that they were diverse in nature but prevalent in many states. We also found state court decisions that upheld local environmental laws against the challenges of regulated property owners. We were troubled by …

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Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan Jan 2001

Direct Environmental Standing For Chartered Conservation Corporations, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State's interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members' interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over “cases and controversies” to the federal courts, …

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Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson Jan 2001

Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Without a better global effort to prevent and cope with forest fires, the remaining wild forests' resources of the world are at risk. Quite apart from the present loss of commercial timber and species habitat, and the present problems of flooding and erosion in the aftermath of fires, the loss of these wooded lands will reduce the capacity of regions to absorb carbon dioxide through photosynthesis, thereby making the challenge of managing emissions of greenhouse gases all the more problematic. Forests sequester carbon in their woody tissue as a result of photosynthesis, and are often termed the “lungs” of the …

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Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson Jan 2001

Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Decisionmakers disregard scientific findings regarding environmental conditions, despite recommendations of the 1992 "Earth Summit" in Agenda 21 that science should provide a foundation for sustainable development. Although environmental degradation trends continue to exacerbate, decisionmakers address only selected issues. This Article examines an analytic paradigm for evaluating when decisionmakers are ready to address a problem and describes the catalytic role that scientific information can serve in prompting remedial action. Unless systematic procedures require evaluation of environmental scientific findings in the normal course of decisionmaking, science will continue to be ignored. One hallmark of Environmental Law has been to fashion such procedures, …

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David Ross Brower And Nature's Laws, Nicholas A. Robinson Jan 2001

David Ross Brower And Nature's Laws, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

“We're not blindly opposed to progress. We're opposed to blind progress.” These words summed up the style and power of David R. Brower. Indelibly, he chiseled toe hold after toe hold on an arduous climb across the rock face of the commercial forces driven to seek short-term gain from natural resources and oblivious to the longer-term costs to the Earth that the ecological sciences would chronicle but that economists would disregard as mere “externalities” in their classical market models. As Brower campaigned to protect the wilderness of North America and the Earth, through his sheer conviction and abundant eloquence, he …

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The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller Jan 2000

The Standing Of Citizens To Enforce Against Violations Of Environmental Statutes In The United States, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Judicial actions by private citizens have played a critical role in the development and enforcement of federal environmental law in the United States over several decades. The courts' general receptivity to the standing of private environmental plaintiffs has made that role possible. A troika of Supreme Court decisions on standing in environmental cases authored by Scalia J over the last decade had eroded that general receptivity, casting doubt on the continued vitality of private actions in developing and implementing environmental law. The Court's recent decision in Friends of the Earth Inc v Laidlaw Environmental Services halts this erosion. To explain …

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Global Climate Change Kyoto Protocol Implementation: Legal Frameworks For Implementing Clean Energy Solutions, Richard L. Ottinger Jan 2000

Global Climate Change Kyoto Protocol Implementation: Legal Frameworks For Implementing Clean Energy Solutions, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

This paper describes the measures that have been and can be taken and the legal mechanisms by which successes have been achieved in reducing greenhouse gases. Examples are given of success stories from around the world, but these examples are just demonstrative. Many hundreds of programs have been pursued successfully around the world in both industrial and developing countries. What does emerge, however, is clear evidence that global warming can be effectively addressed and that many significant steps have been taken profitably in both the public and private sectors, offering significant business, export and job opportunities, and that much can …

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Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto Jan 1999

Nastygram Federalism: A Look At Federal Self-Audit Policy, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This Article examines the evolution of EPA's audit policy, explores the reasons for states' dissatisfaction with it, and then discusses whether the federal policy should have been issued as a rule under the Administrative Procedure Act (APA). Part I examines the evolution of the federal audit policy and then analyzes the strengths and weaknesses of the policy in its current form. Part II explores various types of evidentiary privilege and looks at the arguments for and against extending the privilege to audit reports. It then offers a similar analysis of the case for limited immunity, concluding that neither an expanded …

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Grassroots Regionalism Through Intermunicipal Land Use Compacts, John R. Nolon Jan 1999

Grassroots Regionalism Through Intermunicipal Land Use Compacts, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The question raised by this article is whether these statutes and this experience provide an opportunity to develop an effective regional approach fitted to the great diversity of New York's regions. It examines first the role local governments play in determining land use and then the statutes that authorize municipalities to cooperate with respect to land use planning and control. The article traces the use of this authority through two phases of evolution revealing ever more complex and potentially effective intermunicipal strategies. It ends with some thoughts as to how the state government could facilitate effective regional processes by providing …

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Gwaltney Of Smithfield Revisited, Ann Powers Jan 1999

Gwaltney Of Smithfield Revisited, Ann Powers

Elisabeth Haub School of Law Faculty Publications

This article returns to the earlier Gwaltney decision, looking both to the text of the Gwaltney opinion, and to internal memoranda demonstrating the debate which occurred among the justices themselves over the nature of the beast with which they were dealing: a confusing mixture of subject matter jurisdiction, substantive cause of action and constitutionally based standing requirements. This review leads to the conclusion that the opinion's lack of analytical clarity, which created substantial confusion for courts and litigants, could have been avoided by a more carefully reasoned work based on the Court's internal discussions. Further, the Court's decision in Steel …

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Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon Dec 1998

Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate adverse environmental impacts. The SEQRA process has several flexible time constraints, which through negotiation, may be extended. Issues often arise due to the discrepancies between SEQRA’s imposed time limits and the time limits imposed on land use boards to make determinations about proposed projects. The question of which time limits apply was determined in Sun Beach Real Estate Corp. v. Anderson Beach. In that case, the court held that decisions, such as site plan approval deadlines, do not …

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The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson Jan 1998

The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A decade ago, firefighters in a warehouse on the Rhine in Switzerland washed chemicals, solvents, and mercury into the river, destroying all life in the river for miles, killing millions of fish, and endangering the water supplies of cities in Germany and the Netherlands. This tragedy galvanized the river valley states into action. They vowed to clean up the river, not just from that incident but from the effects of having used the river as a sewer for two centuries. But how clean is clean? The goal for this calculated plan, which will take decades to achieve, is symbolized by …

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