Environmental Law Commons^™

Painting Redd Offsets Green: A Case For Statutory Deuteranopia, Rommel Casis

Sabin Center for Climate Change Law

Offsets generated by projects for reducing emissions from deforestation and degradation (“REDD”) is a particularly controversial form of carbon offset. Excluded from the Kyoto Protocol mechanisms, REDD offsets are now making a comeback ever since the Bali Action Plan specifically referred to REDD. Most recently, the Copenhagen Accord recognized the crucial role of REDD and the need to enhance removals of GHG emissions by forests and agreed on the need to provide incentives to such actions to enable the mobilization of financial resources from developed countries.4 It would seem therefore that the issuance and trade of REDD offsets may finds …

Cash For Clunky Appliances, Anna S. Fleder

Sabin Center for Climate Change Law

This paper examines the viability of a “Cash for Appliances” (“CfA”) program that targets home appliances toward the goal of increasing energy efficiency and decreasing greenhouse gas (“GHG”) emissions. Analyzing an existing CfA effort at the federal level, this paper argues that the case for a federal CfA program is strong, but that the current federal effort falls short of fulfilling its potential. The analysis proceeds in four parts. Part I makes the case for a Cash for Appliances program as a policy tool for promoting energy efficiency. Part II examines existing programs that have done just this – utilized …

What Has To Change For Forests To Be Saved? A Historical Example From The United States, Jedediah S. Purdy

Faculty Scholarship

This article looks at the conservation of American forests in the nineteenth and twentieth centuries to cast light on the prospects for global forest conservation in the twenty-first. At the beginning of the nineteenth century, Americans understood their forests as good only for cutting. By the end of the century a national scheme existed for comprehensive and permanent forest conservation. This new scheme became possible thanks to changes in scientific knowledge, the ideological self-image of the country, political institutions, and the imagination and moral commitments of citizens and social movements. A look at the changes that laid the foundations of …

Scaling "Local": The Implications Of Greenhouse Gas Regulation In San Bernardino County, Hari M. Osofsky

Michigan Journal of International Law

This Essay analyzes local climate regulation in San Bernardino County as a window into the complexities of defining a local scale in an interconnected world. In so doing, it aims to contribute to the Symposium's broader dialogue about "Territory Without Boundaries" and the Panel's more specific discussion of "Urban Territory in a Global World." As a purely territorial matter, U.S. cities and counties differ substantially in their sizes, the quantity and physical characteristics of their land, the size and density of their populations, and the needs of their citizens. Structurally, these localities remain administrative subunits of states, but they also …

The Endangered Species Act: What We Talk About When We Talk About Recovery, Dale D. Goble

Natural Resources Journal

No abstract provided.

Aliens In The Garden, Jared A. Goldstein

University of Colorado Law Review

This Article examines environmental rhetoric and argues that a nationalist conception of nature has long distorted environmental policies. Environmental discourse frequently seeks to explain the natural world by reference to the world of nations, a phenomenon that can be characterizeda s the "nationalizationo f nature." A contemporary example of the nationalization of nature is the rhetoric of "Invasive species," which depicts harmful foreign plants and animals in ways that bear an uncanny resemblance to the demonization of foreigners by opponents of immigration. A typical newspaper article about invasive species, bearing the headline "Eeeeek! The eels are coming!," warned about an …

Toward A Net-Zero Carbon Planet: A Policy Proposal, Matthew J. Kiefer

University of Colorado Law Review

The effort to address climate change is global in scale and increasingly urgent, yet it lacks an effective policy framework. President Obama's determination to elevate clean energy to a national policy priority, Congress's consideration of a federal cap-and-trade regime for greenhouse gases, and the upcoming revisions to the Kyoto Protocol all provide an opportunity to move toward adopting a globally balanced carbon budget. A balanced carbon budget could replace the current, somewhat arbitrary greenhouse gas reduction targets with a scientifically derived calibration limiting global carbon emissions to the rate of carbon absorption. Carbon sub-budgets could then be allocated to each …

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

Scholarly Works

New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe

All Faculty Publications

Unlike the U.S., which relies heavily on tax expenditures as instruments of energy and climate change policy, Canada has introduced very few such tax expenditures, relying instead on voluntary initiatives, direct subsidies, and limited regulatory measures to limit carbon emissions. This paper identifies and evaluates the most prominent tax expenditures in Canada to limit the growth of carbon emissions. As background to this inquiry, Part II reviews Canadian experience with carbon emissions over the last two decades and the limited government response to this growing problem. Part III identifies the most prominent tax expenditures that Canadian governments have introduced in …

Protecting Freshwater Resources In The Era Of Global Water Markets: Lessons Learned From Bottled Water, Noah D. Hall

Law Faculty Research Publications

No abstract provided.

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

UF Law Faculty Publications

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on …

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein

UF Law Faculty Publications

In 2007, the nation entered its greatest financial downturn since the Great Depression of the 1930s. What followed was a period of national introspection. Although prescriptions for financial rescue varied widely in the details, a surprisingly broad consensus emerged as to the underlying pathology of the crisis. This Article explores three principal contributing factors and the lessons associated with each that make up this pathology. These factors include: rejecting rules through deregulation, trivializing risk through overly optimistic analyses, and overconsumption supported by reckless borrowing and lending practices.

The powerful lessons from this pathology, considered by a stunned nation in the …

Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo

UF Law Faculty Publications

For decades, scientific and legal scholars alike have promoted the concept of "adaptive management" as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. This article uses adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience.

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

UF Law Faculty Publications

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort …

Emerging Global Environmental Governance, N. Brian Winchester

Indiana Journal of Global Legal Studies

Environmental thinking and activism are steadily gaining widespread, even global acceptance, but are often in conflict with economic interests and international politics. Environmental priorities are further challenged by scientific uncertainty involving effects that in some cases will only become manifest far into the future. Nonetheless, accompanying this global environmental awakening has been an extraordinary number of international agreements on a wide range of critical environmental issues. While many of these environmental regimes lack adequate financial support and sanctions for non-compliance, they involve a variety of non-state actors, suggesting meaningful movement towards an evolving, complex form of global environmental governance. Indeed, …

Pain, Gain, Or Shame: The Evolution Of Environmental Law And The Role Of Multinational Corporations, Michael Ewing-Chow, Darryl Soh

Indiana Journal of Global Legal Studies

The evolution of environmental law in the past century has been linked to the growing acceptance of the notion of collective global responsibility, which entails the notion of sustainable development. At the turn of this century, the focus in environmental law has shifted from the creation of a global framework to deal with environmental problems to that of compliance with these frameworks. As a result, the primary actor of environmental policy has shifted from the state to the corporation. How has environmental law developed so as to encourage compliance by this new primary actor? Conversely, how has the corporation been …

In Defense Of Conservation Easements: A Response To The End Of Perpetuity, W. William Weeks, Nancy A. Mclaughlin

Articles by Maurer Faculty

No abstract provided.

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The …

Gender-Benders': Sex And Law In The Constitution Of Polluted Bodies, Dayna Nadine Scott

Articles & Book Chapters

This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies — but uncovers …

Energy Efficiency And Federalism, Ann E. Carlson

San Diego Journal of Climate & Energy Law

Everyone loves energy efficiency. Among an array of carbon-reducing strategies, energy efficiency surely ranks as the least controversial. Indeed increasing energy efficiency is frequently lauded as having "net negative costs"-to use the terminology of the Intergovernmental Panel on Climate Change-meaning that the benefits outweigh the costs, even excluding benefits from avoided climate change.
Yet the U.S. system for regulating appliances, which account for a huge percentage of the nation's carbon emissions, is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative …

The History Of State Action In The Environmental Realm: A Presumption Against Preemption In Climate Change Law?, Victor B. Flatt

San Diego Journal of Climate & Energy Law

As we move toward an almost certain comprehensive federal law to address climate change, increasing attention is being paid to what will happen to state and local climate change and climate change-related programs that have arisen in this country in the law few years. As the symposium demonstrated, California has a particular concern that federal law might block its environmental and climate change policies. ...
... In most areas, almost 40 years of environmental federalism has allowed states to regulate beyond the federal government for the protection of their citizens, and we can examine this history empirically in order to …

Regional Climate Regulation: From State Competition To State Collaboration, Lesley K. Mcallister

San Diego Journal of Climate & Energy Law

States have often been theorized to act as competitors in crafting their environmental policies, engaging in either a “race to the bottom” or a “race to the top.” In the recent development of climate law, however, it is state collaboration and cooperation rather than state competition that have emerged most strongly. This Article first discusses how the theories of competitive state behavior would have predicted states to behave in the absence of federal action and describes the contrasting extent to which states have engaged in collaborative initiatives. The Article then analyzes why states have been motivated to collaborate in climate …

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

San Diego Journal of Climate & Energy Law

This Article addresses a critical question about a state's role in the operation of a national cap-and-trade program: whether federal legislation should allow states to be more stringent than the federal government. ...
This Article is the first in a series that will address the wisdom of allowing state control within a federal trading system. ...
Part II of this Article articulates the primary justifications for allowing states to set more stringent caps. ...
Part III turns to practical mechanisms to achieve state stringency. ...
Part IV articulates the potential adverse impacts that could result from states using these mechanisms …

The Clean Water Act And Power Plant Cooling Water Intake Structures, John H. Minan

San Diego Journal of Climate & Energy Law

The focus of this Article in on a subtler, but no less important, part of the climate change story involving energy and water. The focus in on the federal regulation of existing once-through-cooling (OTC) intake structures that are used by large steam electric-generating power plants. OTC, closed-cycle (CC) cooling, and dry-cooling (DC) each perform the same function, which is the removal of waste heat from the steam cycle after it has generated electricity.
...
The elimination of OTC systems would have a salutatory effect on the aquatic environment because fewer marine organisms would be destroyed by impingement and entrainment. But …

Climate Law And Policy In North America: Prospects For Regionalism, Neil Craik, Joseph Dimento

San Diego Journal of Climate & Energy Law

This Article surveys the current bilateral and trilateral initiatives aimed at GHG emission reductions in North America with a view to assessing the nature and potential role of regional climate change law and policy within a broader global framework. In this context, by regional cooperation, we mean cooperation organized on a North American scale. In pursuit of this objective, this Article seeks to identify, first, how climate change mitigation may be regulated usefully on a regional scale, and second, the governance structures and institutions that may be drawn upon to create and implement regional cooperation on climate change. Particular consideration …

It's Getting Hot In Herre. California Senate Bill 1368 And The Dormant Commerce Clause, Andrew F. Adams

San Diego Journal of Climate & Energy Law

This Article addresses whether S.B. 1368 could hold up to a Commerce Clause challenge in three stages. Part II discuses the dormant Commerce Clause and how it is applied to state laws that potentially affect interstate commerce. It explains the history and development of the concept and fleshes out the two-step test that exists today: (1) courts determine whether a law is facially discriminatory; (2) if not, courts apply a test that weighs the respective burdens and benefits of the law. Part II also discusses the different ways in which many of the current Supreme Court Justices interpret and apply …

Consumers Versus Contracts: Morgan Stanley, Maine, And The Mobile-Sierra Doctrine, Brent Allen

San Diego Journal of Climate & Energy Law

The Supreme Court unwittingly spawned the so-called Mobile-Sierra doctrine in 1956 with its two same-day decisions in United Gas Pipe Line Co. v. Mobile Gas Service Corp. and Federal Power Commission v. Sierra Pacific Power Co. The doctrine creates an important restriction on the Federal Energy Regulatory Commission's (FERC) ability to interfere with wholesale energy rates set forth in private contracts. It does this by triggering a heightened standard of review that applies when the Commission reviews fixed rates in private contracts; specifically, the doctrine shifts the standard from the default "just and reasonable" standard to a more rigorous "public …

A Return To Common Sense: Protecting Health, Safety, And The Environment Through 'Pragmatic Regulatory Impact Analysis', Rena I. Steinzor, Amy Sinden, Sidney A. Shapiro, James Goodwin

Faculty Scholarship

Health and safety regulations have a more powerful impact on the quality of life in America than any other affirmative decision the government makes, except perhaps decisions to go to war or pull in the social safety net. To a great extent, the purity of the food we eat and all the medicines we take, the quality of the air we breathe and the water we drink, the safety of industrial workplaces, and the preservation of the myriad natural systems that support life as we know it are dependent on how effectively government polices the side effects of manufacturing. Yet …

The Hidden Human And Environmental Costs Of Regulatory Delay, Catherine O'Neill, Amy Sinden, Rena I. Steinzor, James Goodwin, Ling-Yee Huang

Faculty Scholarship

Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies—the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA. Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last 30-plus years. Opponents …

The Silver Anniversary Of The United States’ Exclusive Economic Zone: Twenty-Five Years Of Ocean Use And Abuse, And The Possibility Of A Blue Water Public Trust Doctrine, Mary Turnipseed, Stephen E. Roady, Raphael Sagarin, Larry B. Crowder

Faculty Scholarship

Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests that the …