Environmental Law Commons^™

Regulating Farming: Balancing Food Safety And Environmental Protection In A Cooperative Governance Regime, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

After providing a brief overview of regulation in each area, Part I of this Article identifies three types of discordance between produce safety and environmental protection on farms. First, because of limited resources, farmers will have to choose between implementing food safety practices and implementing environmental practices. Second, indirect trade-offs between the two regulatory goals result in damaging collateral consequences for the environment. Food safety regulation may exacerbate a range of existing environmental harms. Third, there is at least one direct clash that may make compliance with food safety law incompatible with participation in certain environmental programs. Part I also …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Navigable Waters” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its meaning, then examines how the term has been applied in the context of tributaries and wetlands, isolated waters, groundwater, and EPA’s unitary theory of navigable waters. The author then analyzes EPA and the Corps’ 2014 proposed amendments to the definition of “waters of the United States,” and concludes that those amendments may resolve much of the interpretive crisis.

An Environmental Understanding Of The Local Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article is adapted from Chapter Three of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published in 2014 by ELI Press. The book updates and expands on the author’s previous work, describing in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article outlines a comprehensive framework for understanding how traditional local land use authority can be used to preserve natural resources and environmental functions at the community level.

Creating Order Amidst Food Eco-Label Chaos, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Eco-labels, certifications, and seals of approval serve a variety of functions including communicating to businesses and consumers the environmental attributes of a particular product and incentivizing improvements in production. Eco-labels also provide a basis for companies to set measurable sustainability goals for sourcing, improvements, and transparency. As they gain greater traction in the marketplace, however, there has been a massive proliferation of labels, certifications, and green seals of approval. This has led to consumer confusion, inaccurate and misleading claims, and inconsistent standards. A 2009 survey identified about 600 labels that denote some definition of “environmentally friendly” worldwide, including more than …

Building Resilient Communities In The Wake Of Climate Change While Keeping Affordable Housing Safe From Sea Changes In Nature And Policy, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article will explore the twin interests of responding to climate change and preserving accessible and affordable housing. Part II will give a broad overview of the scientists' climate change predictions. Part III will discuss what these predictions portend for populations, housing, and communities. Part IV will describe the broad responses that the federal, state, and local governments are making to climate change to create communities that are thriving and resilient. Part V discusses the efficacy of these responses and their potential impact on the poor, housing, and communities. Part VI looks for parallels between the resilient cities movement and …

Environmental Privacy, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article looks to nuisance doctrine, surveillance under environmental statutes, and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience, to date, balancing the need for environmental information with privacy. Section A analyzes common law nuisance and its relationship to individual privacy concerns and concludes that the law affords little *7 value to or protection of privacy in the context of at least one type of environmental externality -- conduct that gives rise to a common law nuisance. Recognizing that most environmentally significant individual behaviors do not constitute a …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Point Source” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition.

A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, designed as a resource for environmental law professors both domestically and abroad, addresses how environmental quality standards are created, implemented, and enforced in the United States. The answers to these questions are useful to those teaching U.S. environmental law and international scholars, especially in the European Union, who are faced with the challenge of creating new environmental quality standards under both national and EU directives. It must be noted that this project is complicated by the federal system within the country, and, thus, attention must be devoted to the federal-state relationship. In fact, the major relevant statutes, the …

The State Response To Climate Change: 50 State Survey, Laura Jensen, Kelly Nishikawa, Benjamin Lowenthal

Elisabeth Haub School of Law Faculty Publications

This survey accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014). It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels …

Highest Court In New York Affirms Local Power To Regulate Hydrofracking, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

In one of the most anxiously awaited New York land use decisions in recent memory, the State’s highest court held that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the Towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their borders. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, …

Global Water Resources & Publications, Taryn L. Rucinski

Elisabeth Haub School of Law Faculty Publications

Before we as a society can begin crafting innovative legal solutions to help combat the global water crisis, researchers and experts in the field first need access to sound sources of scientific information. Despite the seeming simplicity of that goal, locating research about water, sanitation, and agricultural conditions, especially in developing countries, can be immensely challenging as it is complicated by issues of language, currency, scope, and accuracy. The purpose of this note is to provide practitioners with a list of free, high quality resources that should help make their research in this area a bit more accessible.

Options For Adaption To Climate Change, Richard L. Ottinger, Pianpian Wang, Kristin M. Motel

Elisabeth Haub School of Law Faculty Publications

In order to tackle climate change, the Intergovernmental Panel on Climate Change (“IPCC”) provided a portfolio of measures: mitigation, adaptation and constant research. Although Article 10 of the Kyoto Protocol underlined the importance of adaptation, adaptation to climate change had been obtained limited attention in the early negotiations of climate talks. In 2010, Cancun Session of Conference of Parties (“COP”) of the United Nations Framework Convention on Climate Change (“UNFCCC”) highlighted the equal importance of adaptation just as mitigation. Since then, increasing attention has been drawn to adaptation practice by the international society. Typically, adaptation can be broken down into …

Innovative Financing For Renewable Energy, Richard L. Ottinger, John Bowie

Elisabeth Haub School of Law Faculty Publications

Carbon pollution from fossil-fuel combustion is the largest contributor to climate change worldwide. Renewable energy can materially help to reduce greenhouse gas (GHG) emissions and their principal cause, worldwide dependence on carbon fuels. If our goal is to remain at or below 1990 numbers, then fossil fuels must be phased out of the global energy portfolio.

While other factors such as energy inefficiencies in buildings, appliances and transportation, for example; deforestation, farm animal excretion, pipeline leakage, HFCs for refrigeration, black soot and changes in land use also contribute to increased emissions, finding new, innovative ways to empower people to seize …

Lessons From A Lawyer’S Life, Leslie Carothers

Elisabeth Haub School of Law Faculty Publications

The author, scholar-in-residence at Pace Law School, received the 2013 ABA Award for Distinguished Achievement in Environmental Law and Policy. A pioneer in the early years of environmental protection, she expands in this space on her remarks in accepting the honor, drawing insights for today’s environmental professionals.

A National Mineral Policy As An International Investment Law Stratagem: The Case Of Tajikistan's Gold Reserves, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

This Article proposes that a national mineral policy ("NMP") can be crafted to generate foreign direct investment ("FDI") and strengthen sustainable development goals. Less-developed countries ("LDCs") typically overlook or underestimate this federal policy imperative while seeking to harness mineral resources.' Creation of a NMP and complementary changes to federal mining investment laws can provide host countries increased opportunities as well as autonomy to profit from their own natural resources and, at the same time, investor nations can benefit from a NMP because of further mining prospects.

This Article goes on to discuss how the formulation and implementation of a NMP …

In Memoriam: David Sive (1922-2014) And Joseph Sax (1936-2014), Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.1 Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.

Mitigating The Adverse Impacts Of Hydraulic Fracturing: A Role For Local Zoning?, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article focuses on the action localities have taken toward mitigating some of the adverse impacts of hydraulic fracturing, or hydrofracking. The Article will explore impacts at the local level and will show the governance gap that has resulted from federal and state regulations that leave many local impacts unmitigated. Zoning laws and other practices that local governments are adopting are also discussed, explaining why state preemption over the traditional role of local governments in regulating this particular heavy industrial activity is not the ideal situation.

The International Sugar Trade And Sustainable Development: Curtailing The Sugar Rush, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

This Article will briefly examine the history of the international sugar trade and discuss the current status of the sugar industry in world markets, specifically in Brazil, India, and the United States. The international sugar trade industry should consider instituting sustainable development practices not only for the public good, but also to enhance its bottom line. As "one of the most highly distorted agricultural commodity markets," the international sugar market is an ideal environment to implement sustainable development practices and begin change with respect to CSR through "guaranteed minimum payments to producers, production and marketing controls (quotas), state-regulated retail prices, …

Preface To Protecting The Environment Through Land Use Law: Standing Ground, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes …

Greenwashing And Self-Declared Seafood Ecolabels, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

The credibility and veracity of an environmental claim depends on a high degree of transparency, clarity, and trust. Businesses that utilize ecolabels to market the environmental performance of their seafood products often turn to third-party certifications to minimize the potential for greenwashing and provide a level of verification and independence. Others rely on a riskier approach by developing their own self-declared or first-party ecolabels. Seafood retailers and suppliers considering the creation and use of an ecolabel, certification, or seal to be used in the marketing of seafood products should ensure compliance with applicable Food and Drug Administration and United States …

The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Keynote: Sustaining Society In The Anthropocene Epoch, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy …

Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development Of Clean Water Law, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.

But the revolutionary effect of the newly minted citizen suit was not limited to …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Pollutant” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes …

Fundamental Principles Of Law For The Anthropocene?, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A wide array of questions arises from global change to confront environmental law. The IPCC has examined social decisions affecting the climate in the design of human settlements, transport systems, industrialisation, agriculture and silviculture, waste management, provisions for energy, and virtually all other socio-economic dimensions of human life. The AR-5, too, cannot avoid raising issues of human ethics and values at local and regional scales. Such issues reach environmental policy and law directly. The IPCC’s AR-5 report furthers widespread public debate about the human dimensions of climate change, and how social theory relates to environmental change. Already, climate change has …

Eating Invaders: Managing Biological Invasions With Fork And Knife?, Joshua Ulan Galperin, Sara Kuebbing

Elisabeth Haub School of Law Faculty Publications

As the public, academy, government, and private sector all turn increased attention to food systems, new ideas constantly emerge for healthy, sustainable, and just innovations in growing, marketing, and eating food. “Invasivory” — eating invasive species — is one such idea. Biological invasions occur when humans transport an organism from its ecosystem of origin into a new ecosystem and that organism adapts to its new location, spreading widely from the site of introduction. Invasive species can cause significant ecological, economic, and public health damage. Crops, homes, and native species are all at risk. “Invasivores,” as the proponents of invasivory are …

Food Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, focusing on produce and grain, discusses the environmental and climate change impacts of food production, processing, packaging, and distribution, which ultimately contribute to both economic and social costs. The article addresses environmental energy costs in the food supply. Figure 1 shows, for example, the significant amount of energy used in various aspects of food production, transportation, and processing.

Much of this article's focus will be on commodity crops. Along with wheat and rice, corn and soybeans constitute the world's most popular planted and consumed crops. The United States is the leading producer of corn, growing nearly 40 percent …

Rio+20 And Biodiversity: What Next? The International And Brazilian Perspectives, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Extended written remarks of the oral panel presentation by Professor Nicholas A. Robinson at the international colloquium in tribute to Ambassador Luiz Alberto Figueiredo do Machado on Rio+20 and Biodiversity: Assessing the Future We Want. Presented as part of the Inaugural Panel, held in the Senate Chamber of Brazil in Brasilia on 26 April 2013 and televised nationally.