Environmental Law Commons^™

The Impact Of Climate Change On Virginia's Coastal Areas, Jonathan L. Goodall, Antonio Elias, Elizabeth Andrews, Christopher "Kit" Chope, John Cosgrove, Jason El Koubi, Jennifer Irish, Lewis L. Lawrence Iii, Robert W. Lazaro Jr., William H. Leighty, Mark W. Luckenbach, Elise Miller-Hooks, Ann C. Phillips, Henry Pollard V, Emily Steinhilber, Charles Feigenoff, Jennifer Sayegh

Faculty Publications

As part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and …

Environmental Protection And Human Rights In The Pandemic, Sarah C. Slinger, Maria Antonia Tigre, Natalia Urzola

Faculty Publications

The Covid-19 outbreak in 2020 took the world by surprise. The virus spread quickly around the globe and death tolls were constantly on the rise at early stages of the pandemic. Although vaccine rollouts have helped halt the number of deaths, inequality in accessing vaccines and effective treatments is still a major issue. From the onset, Covid-19 negatively impacted global well-being and myriad human rights. The present report examines how environmental protection and related human rights have been affected by the Covid-19 pandemic. Based on link between environmental and human health, this report focuses on ecological human rights. The report …

The Legal And Administrative Risks Of Climate Regulation, Jonathan Adler

Faculty Publications

Dramatic and rapid reductions in greenhouse gas emissions are necessary to stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Prioritizing federal environmental regulation as the primary means of achieving these goals may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Climate legislation can reduce the legal risks and accelerate the rate of policy implementation, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may …

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Environmental Indifference, Anthony L. Moffa

Faculty Publications

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …

Strength In Numbers (Of Words): Empirical Analysis Of Preambles And Public Comments, Anthony L. Moffa

Faculty Publications

The empirical observation of a four-decades-long trend towards longer and longer federal agency rulemakings laid the foundation for this series of studies and associated law review articles. The second in that series, this work will add necessary data, test important hypotheses, and draw new conclusions to guide policymakers. Any serious observer of the Federal Register recognizes that different sections of a rulemaking serve different purposes. And agencies have historically utilized one section in particular to insulate their rules from judicial vacation or remand – the “concise general statement of basis and purpose.” Thus, this new study will collect and analyze …

Legal And Administrative Pitfalls That May Confront Climate Regulation, Jonathan H. Adler

Faculty Publications

This paper surveys the legal vulnerabilities and administrative obstacles to the rapid adoption of regulatory measures capable of achieving meaningful GHG reductions. This analysis does not purport to identify which climate policies would be the most effective in the abstract, or in the absence of administrative and legal constraints. Nor does this paper make any claims about what sorts of measures can pass Congress now or in the future. Rather, this analysis seeks to inform the choice of climate strategies by highlighting the risks faced by climate measures once they are enacted by Congress or promulgated by federal regulatory agencies. …

Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman

Faculty Publications

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the …

The Environmental Protection Agency Turns Fifty, Jonathan Adler

Faculty Publications

In anticipation of the fiftieth anniversary of the EPA’s founding, the Coleman P. Burke Center for Environmental Law and the Case Western Reserve Law Review sponsored a symposium to look at the past, present, and future of the EPA. The conference featured an array of environmental-law and -policy experts, including individuals who served in environmental-policy positions in each of the last four presidential administrations, as well as the current EPA Administrator, Andrew Wheeler.

This article is an introduction for the articles from this conference that are published in this special symposium issue of the law review.

The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson

Faculty Publications

The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Trauma-Centered Social Justice, Noa Ben-Asher

Faculty Publications

This Article identifies a new and growing phenomenon in the American legal system. Many leading agendas for gender, racial, and climate justice are centered on emotional trauma as the primary injury of contemporary social injustices. By focusing on three social justice movements–#BlackLivesMatter; #MeToo, and Climate Justice–the Article offers the first comprehensive diagnosis and assessment of how emotional trauma has become an engine for legal and policy social justice reforms. From a nineteenth century psychoanalytic theory about repressed childhood sexual memories that manifest in female hysteria, through extensive medicalization and classification in the twentieth century, emotional trauma has evolved and expanded …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

As a presidential candidate, Donald Trump promised to curtail federal environmental regulation and empower the states. Has the Trump Administration made good on these pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This Essay provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

The Complexity Dilemma In Policy Market Design, Todd S. Aagaard, Andrew N. Kleit

Faculty Publications

Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as …

The Brave New World Of Energy And Natural Resources Development, Donald N. Zillman

Faculty Publications

The world of energy and natural resources development has changed a great deal over the past 30 months, perhaps more so than in the preceding 30 years. Beginning with the June 2016 vote in the United Kingdom to leave the European Union and continuing through today, there are global signs of increasing emphasis on protecting national sovereignty and less on world efforts to address major environmental and energy issues. Admittedly, the United Nations-based effort to reduce greenhouse gas emissions continues to move forward. However, more than a few nations are hinting that they may not live up to their commitments …

Clean Energy Justice: Charting An Emerging Agenda, Shelley Welton, Joel Eisen

Faculty Publications

The rapid transition to clean energy is fraught with potential inequities. As clean energy policies ramp up in scale and ambition, they confront challenging new questions: Who should pay for the transition? Who should live next to the industrial-scale wind and solar farms these policies promote? Will the new “green” economy be a fairer one, with more widespread opportunity, than the fossil fuel economy it is replacing? Who gets to decide what kinds of resources power our decarbonized world? In this article, we assert that it is useful to understand these challenges collectively, as part of an emerging agenda of …

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Introduction: Property In Ecology, Jonathan Adler

Faculty Publications

The papers in this volume explore the further potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property’s …

Uniform Climate Control, Anthony Moffa

Faculty Publications

In Washington, D.C., the “Green New Deal” may be nothing more than a symbolic, Twitter-friendly legislative campaign with no real hope of adoption. But in New York, it is the new legal reality. The efforts of sub-national governments - like New York’s - to tackle widespread environmental harms, in particular climate change, have drawn increased media and scholarly attention since the United States declared its intention to withdraw from the Paris Agreement. In truth, the trend towards so-called “environmental federalism” predates the election of President Donald J. Trump. We are ushering in the next generation of environmental laws, and those …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Introduction: Property In Ecology, Jonathan H. Adler

Faculty Publications

Are property rights in ecological resources compatible with environmental protection? Might they be essential?

Working at the local level, conservationists have often rediscovered Aldo Leopold’s counsel that private rights can be more effective than government regulation. Conservation goals have been dramatically enhanced by the growth of land trusts and increasing use of property instruments such as conservation easements. Land ownership in fee simple is one way a conservation organization may protect a particular place, but it is hardly necessary in many contexts. Conservation easements and other partial interests in land are often a highly cost-effective alternative, particularly where conservation is …

President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler

Faculty Publications

Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation …

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Faculty Publications

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Faculty Publications

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …

Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins

Faculty Publications

No abstract provided.

Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins

Faculty Publications

Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. …

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

California's Climate Diplomacy And Dormant Preemption, David L. Sloss

Faculty Publications

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate …

Grid Modernization And Energy Poverty, Shelley Welton

Faculty Publications

Grid modernization holds the alluring promise of rationalizing electricity pricing, saving consumers money, and improving environmental quality all at the same time. Yet, we have seen only limited and patchwork regulatory initiatives towards significant grid modernization in the United States. Outside of a few leading states, state energy regulators appear loath to embrace fullthroated versions of the project. This article argues that the underdiscussed problem of energy poverty in the United States is a critical contributing factor in the gap between grid modernization’s possibilities and our regulatory reality. Only by explicitly understanding how the issues of grid modernization and energy …