Environmental Law Commons^™

Adaptation To The Health Consequences Of Climate Change As A Potential Influence On Public Health Law And Policy: From Preparedness To Resilience, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Because the health effects of climate change are likely to be significant and far-reaching, a key component of climate change adaptation will be our public health infrastructure. Perhaps counter-intuitively, recent emphasis in public health law on preparedness for extraordinary events may be to the detriment of our ability to cope with the health impacts of climate change. While existing emergency preparedness law will necessarily be an important backdrop for health-focused climate change adaptation efforts (especially with regard to natural disasters and infectious disease outbreaks), the focus on emergency preparedness in recent years does not necessarily situate us well for handling …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Cubing The Kyoto Protocol: Post-Copenhagen Regulatory Reforms To Reset The Global Thermostat, Steven Ferrey

Suffolk University Law School Faculty Works

The Copenhagen Conference of the Parties (COP-15), which took place in December 2009, was intended to set in stone an ambitious global climate change agreement for the post-2012 period, when the Kyoto Protocol expires. It did not succeed, resulting only in a 13-paragraph “political accord” which was not agreed to, but only “noted” because of lack of consensus. The COP-16 in December 2010 in Cancun, Mexico, met a similar, if less contentious, inconclusive end. Every fundamental issue was left unresolved at both disappointing critical Conferences. Left unreformed as an international legal regulatory mechanism, the Kyoto Protocol has no chance of …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), 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 …

Greenhouse Gas Regulation Under The Clean Air Act: Does Chevron Set The Epa Free, Nathan D. Richardson

Faculty Publications

No abstract provided.

Comprehensive Planning, Dominant-Use-Zones, And User Rights: A New Era In Ocean Governance, James N. Sanchirico, Josh Eagle, Steve Palumbi, Barton H. Thompson Jr.

Faculty Publications

Ocean-zoning arguments often center on the biology of ocean species, the geography of fishing-use patterns, and the need for preventing use conflicts. Here we expand this discussion to the social and legal aspects of ocean zoning, focusing on comprehensive planning, segregation of activities into use-priority areas, and the allocation of user rights within each zone. The inclusion of all of these features within an ocean-zoning regime can be a catalyst for a variety of ancillary benefits, including opportunities for user groups to form informal or formal long-lived institutions and a reassessment of the focus and scope of the regulatory institutions …

Foundations: The Public Domain And Natural Resources Law 1785 - 1960, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

What’S In The Water? Climate Change, Waterborne Pathogens, And The Safety Of The Rural Alaskan Water Supply, Deborah P. Furth

UC Law Environmental Journal

No abstract provided.

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Mitigating The Distributional Impacts Of Climate Change Policy, Tracey M. Roberts

Washington and Lee Law Review

Under both a cap-and-trade system and a greenhouse gas tax, the government will regulate energy suppliers and distributors, utility companies, and large manufacturers. These parties will bear the statutory incidence of the regulation. However, the financial impacts of regulating greenhouse gas emissions will be borne primarily by consumers. Consumers will bear the economic incidence of the regulation in the form of increased costs ofgasoline, electricity, and home heating fuels and in increased consumer prices for all goods manufactured or distributed using fossil fuels. Greenhouse gas regulation will also generate significant revenue. This Article addresses the question of what should be …

Insurance And Climate Change, Greg Munro

Faculty Journal Articles & Other Writings

This article examines insurance industry awareness of climate change and its implications, what risks it presents to insureds and insurers, what action insurers are taking to address it, and how the insurance industry could be a major force in getting the world to address climate change and mitigate its effects.

Adaptation To The Health Consequences Of Climate Change As A Potential Influence On Public Health Law And Policy: From Preparedness To Resilience, Lindsay F. Wiley

Georgetown Law Faculty Publications and Other Works

Because the health effects of climate change are likely to be significant and far-reaching, a key component of climate change adaptation will be our public health infrastructure. Perhaps counter-intuitively, recent emphasis in public health law on preparedness for extraordinary events may be to the detriment of our ability to cope with the health impacts of climate change. While existing emergency preparedness law will necessarily be an important backdrop for health-focused climate change adaptation efforts (especially with regard to natural disasters and infectious disease outbreaks), the focus on emergency preparedness in recent years does not necessarily situate us well for handling …

A New Governance Approach To Designing An Effective Arrangement For The Sustainable Management Of Renewable Marine Resources In The Eastern Caribbean States, Kerith Tristan Kentish

LLM Theses

The study's main purpose is to propose a governance framework that meets the priority of sustainable development for the regulation of offshore renewable resources in the OECS region. The study develops an analytical framework for evaluating the recently adopted Round 3 model of governance for the regulation of offshore wind and other marine activities in the United Kingdom. The focus is on the licensing procedures applicable to offshore wind development. Thereafter, the study examines the appropriateness of the application of the Round 3 model to the regulation of marine renewables in the OECS, and makes recommendations in that regard. Additionally, …

Qualitative, Quantitative, And Integrative Conservation, Jamison E. Colburn

Faculty Scholarship

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative …

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert H. "Bo" Abrams

Journal Publications

In the United States water law is a subset of property law that controls the use and allocation of the water resource. Water law was, and remains, state law; nothing in the Constitution purports to change that. The scope of federal sovereignty at the time of nationhood did not include even the possibility of playing a major role in regulating resources because the national government was not a significant landholder. The twentieth century changed water federalism dramatically. In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, the real power over water in …

Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport

St. Mary's Law Journal

Bankruptcy courts see too many incompetent bankruptcy lawyers, and the courts have few options for dealing with them. A court can rule against the lawyer, but this strategy punishes the lawyer’s client, who may be an innocent bystander. Alternatively, nothing prohibits a judge from deciding to hand down a sanctions opinion. Sanctions opinions arise when one party makes a request, or the court believes a lawyer’s behavior is serious enough to merit a written order. These instances include flouting the law—either bankruptcy law or the ethical rules—or being unaware of the fundamentals of bankruptcy practice and policy. In the instance …

Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly

St. Mary's Law Journal

In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …

Kawalan Perundangan Terhadap Pencemaran Air Oleh Jabatan Alam Sekitar Negeri Selangor : Satu Analisis Menurut Perpsektif Perundangan Islam., Mohd Istajib Mokhtar

Student Works (2010-2019)

The research deeply explores the Islamic legal approaches in water quality control and pollution prevention. In Malaysia, environmental pollution issues such as water pollution are not enacted under the Syariah jurisdiction but Civil. This research elaborates the approaches and measures that have been applied and practiced by the Department of Environment, the State of Selangor towards controlling and preventing water pollution. All data were collected mainly through library research methodologies, institutional documentations and interviews. In order to achieve the research objectives, priority was given to comparative analysis approaches to examine similarities, differences and to determine whether the water pollution control …

A Green Road To Development: Environmental Regulations And Developing Countries In The Wto, Jonathan Skinner

Publications

The WTO framework can accommodate enforceable environmentally protective measures.

Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd

Publications

The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little …

State Responsibility In Promoting Environmental Corporate Accountability, Lakshman Guruswamy

Publications

No abstract provided.

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Publications

In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be …

Public Nuisance Suits For The Climate Justice Movement: The Right Thing And The Right Time, Randall S. Abate

Journal Publications

The climate justice movement seeks to provide relief to vulnerable communities that have been disproportionately affected by climate change impacts. Public nuisance litigation for climate change impacts is a new and growing field that could provide the legal and policy underpinnings to help secure a viable foundation for climate justice in the United States and internationally. By securing victories in the court system, these suits may succeed where the domestic environmental justice movement failed in seeking to merge environmental protection and human rights concerns into an actionable legal theory. This Article first examines the nature and scope of the climate …

A Green Solution To Climate Change: The Hybrid Approach To Crediting Reductions In Tropical Deforestation, Randall S. Abate, Todd A. Wright

Journal Publications

No abstract provided.

Redd, White, And Blue: Is Proposed U.S. Climate Legislation Adequate To Promote A Global Carbon Credits System For Avoided Deforestation In A Post-Kyoto Regime?, Randall S. Abate

Journal Publications

Reducing emissions from deforestation and degradation (REDD) has emerged as an important albeit controversial, component of negotiations for a new international climate change regime to succeed the Kyoto Protocol when it expires in 2012 Not permitted under the terms of the Kyoto Protocol, REDD involves paying developing countries to protect their tropical forests as a climate change mitigation strategy REDD gained widespread attention by 2005 and took center stage in the months preceding the negotiation of the Copenhagen Accord in December 2009. After more than a decade of nonparticipation in international climate change compliance efforts, the United States has signed …

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert Abrams

Journal Publications

Conflicts over water allocation have, become a national topic, rather than a regional one confined to the West. Increased water use and projections for further increased demand are combining with the decline of stationarity to underscore the importance of having sound water management policies and a coherent plan for water allocation at the ready and capable of implementation. Historically, and in an earlier era of water federalism, the state police power was acknowledged as the proper locus for making water law and policy.

In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, …

Framing Water Policy In A Carbon Affected And Carbon Constrained Environment, Robert H. Abrams, Noah D. Hall

Journal Publications

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation's water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water …

Nepa, National Security, And Ocean Noise: The Past, Present, And Future Of Regulating The Impact Of Navy Sonar On Marine Mammals, Randall S. Abate

Journal Publications

or several decades, and in a variety of contexts, national security and environmental protection interests have clashed. Balancing these competing concerns is a challenging task. However, in the wake of the tragic events of September 11, 2001, the U.S. government “drastically changed its approach to how it handled important environmental concerns in relation to national
defense issues."

The most common manifestation of the tensions between national security and environmental protection objectives is the Navy’s use of sonar in U.S. waters. The oceans that surround the United States on both coasts provide the U.S. Navy with an indispensable buffer zone in …

Investment In Water And Wastewater Infrastructure: An Environmental Justice Challenge, A Governance Solution, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

This article evaluates the impact of the growing presence of privatized water and wastewater infrastructure projects in some of the world’s most populous countries: China, India, the United States, Brazil, and Nigeria. Together, these nations account for nearly 50 percent of the world’s population. The article discusses environmental justice issues associated with contaminated drinking water and insufficient sanitation and explores the role that public versus private ownership of water infrastructure plays in ensuring access to clean water for the lower-income echelons of society. It articulates the importance of the rule of law and sound environmental governance in this arena and …

Climate Change Consensus: Emerging International Law, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.