Environmental Law Commons^™

Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …

The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen

Law Faculty Publications

In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …

Property And Environment: Thoughts On An Evolving Relationship, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Private property is a necessary but insufficient tool for environmental regulation. Why is it necessary? There are several reasons. First, it settles who controls a resource, making rational management possible. While this may sound trivial, countries with weak or fragmented systems of ownership--or where enforcement of law is tainted by corruption--find it impossible even to begin to preserve resources or prevent pollution. This is especially the case when different individuals make conflicting claims to the same plot of land.

Second, private property owners have the incentive to preserve the capital value of their land. They can reap where they (or …

Applying Cost-Benefit To Past Decisions: Was Environmental Protection Ever A Good Idea?, Lisa Heinzerling, Frank Ackerman, Rachel Massey

Georgetown Law Faculty Publications and Other Works

In this Article, however, we do not mount a critique from outside the technique of cost-benefit analysis. Instead, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but rather a neutral tool for evaluating public policy. In making this argument, these proponents have often invoked the use of cost-benefit analysis to support previous regulatory decisions (their favorite example involves the phase down of lead in gasoline, which we shall shortly discuss) as a sign that this technique can be used to support …

Book Review, Lakshman D. Guruswamy

Publications

No abstract provided.

Sustainable Energy: A Preliminary Framework, Lakshman Guruswamy

Publications

No abstract provided.

Indigenous Peoples' Rights To Water Under International Norms, David H. Getches

Publications

In this article, Dean Getches examines the nature of international law as it relates to indigenous water rights and evaluates the kinds of claims that native peoples might assert when they are deprived of access to water. Around the world, indigenous peoples have experienced depletion or pollution of their traditional water sources caused by the uses made by dominant, non-native societies. As a result, native peoples' ability to perform water-dependent vocations like farming and fishing, and to perpetuate cultures and spiritual practices requiring water is limited. While a few countries recognize water rights of indigenous peoples in their domestic laws, …

The Legacy Of The Bush Ii Administration In Natural Resources: A Work In Progress, David H. Getches

Publications

No abstract provided.

International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran

Publications

No abstract provided.

Energy, Environment & Sustainable Development, Lakshman D. Guruswamy

Publications

No abstract provided.

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged, or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. In addition, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional …

Back To The Future Of Conservation: Changing Perceptions Of Property Rights & Environmental Protection, Jonathan H. Adler

Faculty Publications

Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional notions of property rights are incompatible with the demands of environmental protection. Perceiving an environmental crisis borne from Lockean conceptions of property and capitalism, many environmental thinkers came to view the legal protection of private property as an obstacle to environmental sustainability. As a result, the development of command-and-control regulation in the 1960s and 1970s was influenced by the ecological critique of private property.

In recent years, however, the perception of private property's role in …

A Time To Preserve: A Call For Formal Private-Party Rights In Perpetual Conservation Easements, Carol N. Brown

Georgia Law Review

Increasingly, property owners are employing conservation easements to maintain open space or protect the environment through restrictions on development. Private-party standing to enforce conservation easements, however, has not been so widely embraced, in part because of the perceived inconsistency between private-party standing and private property rights. This Article argues that private-party standing to sue for enforcement of these easements reinforces both the easement grantor's private property rights and society's interest in natural resource preservation. The Article analyzes private-party standing under a reconstituted bundle of property rights theory and the public trust doctrine; examines the efficiency, social justice, and decentralization arguments …

The (Non)Uniqueness Of Environmental Law, Jay D. Wexler

Faculty Scholarship

In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features …