Environmental Law Commons^™

When Business Conduct Turns Violent: Bringing Bp, Massey, And Other Scofflaws To Justice, Jane F. Barrett

Faculty Scholarship

In April 2010, forty-seven people died violently as a result of explosions at an oil refinery, in a coal mine and on an offshore drilling rig. The BP Deepwater Horizon catastrophe, the Massey Mine coal mine disaster and the Tesoro Corporation oil refinery explosion raise questions about the corporate and individual criminal culpability of those responsible for these deaths. Too often cases involving worker deaths are not prosecuted at all or result in simply large fines against a corporate entity. This Article argues that the Department of Justice needs to more aggressively investigate and prosecute not only organizations but, more …

Unnatural Resource Law: Situating Desalination In Coastal Resource And Water Law Doctrines, Michael Pappas

Faculty Scholarship

This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.

This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of …

New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress Unfinished Environmental Business, Reed D. Benson

Faculty Scholarship

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address todays water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant …

Public On Paper: The Failure Of Law To Protect Public Water Uses In The Western United States, Reed D. Benson

Faculty Scholarship

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective. This paper identifies the relevant legal principles and briefly explains …

Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Faculty Scholarship

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations.  Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future.  The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

Faculty Scholarship

Over the last several years, so-called carbon markets have
emerged around the world to facilitate trading in greenhouse gas
credits. This Article takes a close look at an unexpected and
unprecedented development in some of these markets—premium
“green” currencies have emerged and, in some cases, displaced
standard compliance currencies. Past experiences with other
environmental compliance markets, such as the sulfur dioxide and
wetlands mitigation markets, suggest the exact opposite should be
occurring. Indeed, buyers in such markets should only be interested in
buying compliance, not in the underlying environmental integrity of the
compliance unit. In some of the compliance carbon …

Overcoming The Impasse On Intellectual Property And Climate Change At The Unfccc: A Way Forward, Jerome H. Reichman, Ahmed Abdel Latif, Keith Maskus, Ruth Okediji, Pedro Roffe

Faculty Scholarship

The global spotlight is once again focused on the challenges of climate change with the annual United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties kicking off this week (November 28th–December 7th) in Durban, South Africa. With the international community looking to Durban for results, an important opportunity exists to address one of the most contentious – and misunderstood – issues in the climate change debate: the role of intellectual property rights in the production of and access to mitigation and adaptation technologies. The rapid development and diffusion of these technologies is a key component of the …

What Is The Emperor Wearing? The Secret Lives Of Ecosystem Services, James Salzman

Faculty Scholarship

No abstract provided.

A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang

Faculty Scholarship

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor

Faculty Scholarship

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is under pressure to adopt the British “safety case” system, which requires the preparation of a facility-specific plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. …

Environmental Law Goes Global: Taking Back Eden: Eight Environmental Cases That Changed The World, By Oliver A. Houck, Robert V. Percival

Faculty Scholarship

No abstract provided.

Global Law And The Environment, Robert V. Percival

Faculty Scholarship

This article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …

China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival

Faculty Scholarship

This article argues that China may be on the verge of a “Green Leap Forward” that could make it a global environmental leader. This article argues that two principal forces have contributed to this development. First, Chinese officials now realize that a global shift away from fossil fuels will create enormous business opportunities on a global scale. Chinese companies are now making enormous strides in the development of green technology, such as solar power, wind energy, and electric cars, with the active assistance of the Chinese government. Second, realizing that climate change severely threatens China, and stung by the criticism …

Too Big To Obey: Why Bp Should Be Debarred, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

The Due Diligence Process And Its Impact On The Deal: A Primer On Bayoneting The Wounded, Alex Ritchie, A. John Davis

Faculty Scholarship

In earlier times of more rationale schedules, reasonable billing rates, and less client scrutiny over bills and efficiency, an associate could learn due diligence with a partner looking over her shoulder, offering wisdom and encouragement. In the modern age of instantaneous information, excessive billing rates, and unrealistic expectations, transactional firms devote too little attention to due diligence processes and training. The stresses, tensions and risks associated with due diligence only multiply in the context of the big deal – the high-stakes, all-asset, equity and merger transactions. This article seeks to provide insight into the due diligence process, particularly the big …

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

'American Electric Power’ Leaves Open Many Questions For Climate Litigation, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut, the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open.

Climate Change Litigation After Supreme Court Ruling In American Electric Power V. Connecticut, Mark Fulton, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut. This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases (GHGs) from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions.

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

Environmental And Energy Legislation In The 112th Congress, Michael B. Gerrard

Faculty Scholarship

When Barack Obama succeeded George W. Bush in January 2009, backed by solid majorities in both the House and the Senate, the country seemed poised for the first major environmental legislation since 1990, the year of the Oil Pollution Act and the 1990 Clean Air Act amendments. Under the leadership of Rep. Henry A. Waxman (D-CA) and Rep. Edward Markey (D-MA), the House passed a comprehensive climate change bill based on an economywide cap-and-trade system. The House also passed a bill to lift oil spill liability caps and adopt additional reforms in the wake of the Gulf of Mexico spill. …

Model Municipal Ordinance Project Designed To Facilitate Wind And Solar Projects And Green Buildings, Michael B. Gerrard, Danielle Sugarman

Faculty Scholarship

Soaring oil prices and the reality of climate change have underscored the heed to reduce U.S. fossil fuel dependence by improving energy efficiency and by developing and expanding renewable sources of energy. The International Energy Agency declared in 2010 that "[i]ncreasing energy efficiency, much of which can be achieved through low-cost options, offers the greatest potential for reducing CO2 emissions over the period to 2050." Furthermore, increasing our reliance on renewable resources such as wind and solar energy is not only a prudent measure in helping America to improve its energy security, but is a necessary component of a basket …

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency Fee Environmental Special Counsel Arrangement, Julie E. Steiner

Faculty Scholarship

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …

Environmental Review Of Western Water Project Operations: Where Nepa Has Not Applied, Will It Now Protect Farmers From Fish?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wangers recent decisions applying NEPA to the Bureau's …

Groundwater Policy In The Western United States, Denise D. Fort, Summer Mckean

Faculty Scholarship

Groundwater mining is inadequately addressed by state and federal policies in the United States. New Mexico's failure to manage groundwater aquifers has resulted in costly federal rescue projects. Better information and involvement of communities in groundwater policy would provide for more sustainable use of this resource.

Too Hot To Handle: Climate Change And Agricultural Water Use, Denise D. Fort

Faculty Scholarship

The world faces enormous challenges in responding to looming crises in food and water. Responding to this challenge will require flexibility; such flexibility may be impeded by legal institutions. This paper looks at the western United States and discusses the role of irrigated agriculture in that region. Because of climate change, a growing population, declining groundwater, the need to protect ecosystems and other conflicts, the author suggests that all water uses, including long-standing agricultural water rights, need to be examined in light of these changes. Legal systems have tended to serve the status quo, but perhaps the law can help …

Is Public Nuisance A Tort?, Thomas W. Merrill

Faculty Scholarship

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected – rights common to the general public – and the …

Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw

Faculty Scholarship

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors – fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA’s authority to use compliance flexibility options under Section …