Environmental Law Commons^™

Farms, Their Environmental Harms, And Environmental Laws, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors …

Envirocare V. Nrc Increases Agency Discretion To Deny Administrative Intervention: Right Result - Wrong Reason, William S. Jordan Iii

Akron Law Faculty Publications

In this article, William S. Jordan III critiques the D.C. Circuit's decision in Envirocare of Utah, Inc. v. NRC, which upheld the Nuclear Regulatory Commission’s (NRC) decision to deny a private competitor's request to intervene in a licensing proceeding. While Jordan agrees with the outcome—that the NRC’s discretion in managing administrative proceedings should be respected—he contends that the court’s rationale risks expanding agency discretion at the expense of public participation and transparency. The article explores the statutory and administrative law frameworks governing intervention rights, analyzing how the court’s interpretation diverges from sound procedural principles. Jordan argues for a more nuanced …

Restoration Affecting Native Resources: The Place Of Native Ecological Science, Catherine O'Neill

Faculty Articles

This article begins by noting that non-Native society—the dominant society in the United States—has often discounted Native expertise and denied a place for Native environmental managers. Part II catalogues the various forms that denigration and denial of Native ecological science have taken. Part III marks the historical antecedents of such efforts to deny Native knowledge and to downplay the role of Native peoples as environmental managers. It then identifies particular features of the approaches favored by non-Native environmental managers that likely work to exclude, devalue, or discriminate against Native science, with the intention of encouraging further work to locate and …

Variable Justice: Environmental Standards, Contaminated Fish, And "Acceptable” Risk To Native Peoples, Catherine O'Neill

Faculty Articles

This article begins with the observation that “[f]ish, especially salmon, are necessary for the survival of the Native peoples of the Pacific Northwest, both as individuals and as a people.” It considers conventional approaches to regulating contamination of the waters that support the fish on which these peoples depend, and finds that the narrow focus on human physical health fails fully to comprehend the multiple dimensions of the harm to these fishing peoples. Importantly, this focus fails to appreciate the cultural dimensions of the harm. The article examines health and environmental agencies’ standard-setting practices and challenges their failure to account …

South, North, International Environmental Law, And International Environmental Lawyers, Karin Mickelson

All Faculty Publications

The author argues that international environmental law as a discipline has failed to respond to Third World concerns in a meaningful fashion. It has merely accommodated these concerns at the margins, as opposed to integrating them into the core of the discipline and its self-understanding. Two aspects of the standard, "accommodationist," approach are considered: (1) the tendency to provide an ahistorical account of the evolution of international environmental law; (2) the implicit or explicit portrayal of the South as a grudging participant in environmental regimes rather than being recognized as an active partner in an ongoing effort to identify the …

The Nafta Package And The Environment: A Green Analysis Of Its Origins And Effects, Pedro M. Morales-Gomez

LLM Theses and Essays

When the presidential candidate Clinton announced that he would not support NAFTA without environmental and labor side agreements, and during the period before NAFTA's ratification by the American Congress, Mexicans lived in most tense suspense. Even though, the idea of an environmental side agreement seemed to please most environmentalists in Mexico who hoped that this would lead to creating a major environmental conscience in the Mexican government. The purpose of this thesis is to elaborate a critical analysis of the North American Free Trade Agreement, its related documents and their effects concerning the environment, specifically its legal protection. We will …

The Most Creative Moments In The History Of Environmental Law: "The Whats", William H. Rodgers, Jr.

Articles

In preparation for this symposium piece, Professor Rodgers asked a number of his colleagues active in the field of environmental law to identify what they considered to be the most creative moments in the history of environmental law. He gave no specific instructions with his request other than providing a definition of what he considered to be a creative moment: "A legal initiative that advances environmental law with a new level of analysis, new structure, or new institutional bridge. "

This article is a compilation of the numerous responses the author received. The responses formulate a detailed and informative description …

Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon

St. Mary's Law Journal

Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of …

Texas Workers' Compensation: A Ten-Year Survey - Strengths, Weaknesses, And Recommendations., Phil Hardberger

St. Mary's Law Journal

The present Texas Workers’ Compensation system began development in January of 1989 and has been in effect since 1991. Texas is the only state in which workers’ compensation coverage is optional. Alternative benefits plans are provided in some cases; however, many injured workers receive less than they would under the Texas Workers’ Compensation system. The current system uses supplemental income benefits (SIBs), meaning injured workers can be cut off from benefits if they are less than 15% impaired, and the maximum time to appeal each case is ninety days (Rule 130.5(e)). The 71st Texas Legislature focused on decreasing attorney involvement …

A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle

St. Mary's Law Journal

In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary …

The Negotiation Of Executive Agreements For Environmental Remediation: Is The Interest-Based Method A Workable Model?, Darla Jackson

Other Faculty Publications

No abstract provided.

Can’T Get No Satisfaction: Securing Water For Federal And Tribal Lands In The West, Reed D. Benson

Faculty Scholarship

In recent years, the western states have often struggled with the federal government over control and management of natural resources, particularly water. For its part, federal law defers to states in many matters of water resource allocation.

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

A Greener Shade Of Crimson: Law And The Environment Alumni Forum, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

With the few minutes that I have, I want to respond to or elaborate on some of what was said and speak more directly about the development of the Environmental Law Program. Then I cannot resist commenting on some things which have not been said, but should be . . . In developing a program, one does not need to have gobs and gobs of environmental law courses. You need a core set of courses. You need a minimum of four courses - a minimum - taught by permanent faculty. You need an environmental law survey class. You need a …

Restoring What’S Environmental About Environmental Law In The Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades. The Article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices. Lazarus's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law. The Justices …

The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy

Publications

No abstract provided.

A Case Study In The Intersection Of Law And Science: The 1999 Report Of The Committee Of Scientists, Charles F. Wilkinson

Publications

No abstract provided.

Land Use, Science, And Spirituality: The Search For A True And Lasting Relationship With The Land, Charles Wilkinson

Publications

No abstract provided.

The Spirit Of 76: Does President Clinton's Roadless Lands Directive Violate The Spirit Of The National Forest Management Act Of 1976?, Jennifer Sullivan

Publications

This Article explores the competing resource protection and production interests surrounding President Clinton's proposal to ban new road building in areas of the Tongass National Forest. The Tongass is currently exempted from a temporary moratorium on road building while the Forest Service determines whether to include the Tongass in the roadless ban. This Article analyses the current legislative framework that guides Forest System management of the Tongass and legal challenges to the roadless ban's application to the Tongass. Finally, the Author suggests a potential compromise that balances commercial and production interests.

Explaining Market Mechanisms, Thomas W. Merrill

Faculty Scholarship

In recent years, environmental regulation has seen a debate between supporters of traditional command-and-control regulation – a system of uniform pollution control standards – and proponents of a system of fees or permits for individual polluters known as market mechanisms. In this article, Professor Merrill considers two theories, wealth-maximization theory and distributional theory, that have been used to explain the emergence of market mechanisms in American environmental policy. He notes that (1) relatively few American environmental-enforcement programs have adopted market mechanisms; (2) those that exist overwhelmingly use grandfathered transferable permits instead of pollution taxes or auctioned permits; and (3) they …

Consultants' And Lawyers' Duties To Report Contamination, Michael B. Gerrard

Faculty Scholarship

A recent decision by the New York State Department of Environmental Conservation (DEC) expands the duty of environmental consultants to report contamination on their clients' land. The rationale of the decision might also apply to lawyers and to states beyond New York.

Many federal, state and municipal laws require spills of pollutants to be reported to the government. People have received criminal penalties, including jail time, as well as heavy civil fines, for violating some of these requirements. Almost all of these rules apply only to persons who own, operate, or are otherwise in charge of the polluting facility, or …

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part Iv), Craig H. Allen

Articles

No abstract provided.

The Myth Of The Win-Win: Misdiagnosis In The Business Of Reassembling Nature, William H. Rodgers, Jr.

Articles

This Article starts with a closer than customary look at the most serious obstacle to the ambitious campaign of environmental restoration that is the focus of this Symposium. That obstacle is the human brain.

The Article contends that human cognitive processes are marvelous designers of serviceable self-deceptions. In the war on nature that we witnessed in the twentieth century the most functional of these is the firm belief in a non-zero sum world. This is the conviction that gains from economic development could be enjoyed without sacrifice of the natural world.

This is a convenient, powerful, and serviceable myth although …