Environmental Law Commons^™

The Development Of Environmental Governance Regimes: A Chinese-Inspired Reconstruction, Roda Mushkat

Washington and Lee Journal of Energy, Climate, and the Environment

The challenge of protecting the biosphere has both salient academic and policy dimensions. On the academic side, persistent efforts have been made in the field of socio-legal studies to enhance the understanding of the complex processes involved, in the domestic arena and on the international front, in the formation and transformation of the elaborate institutional arrangements designed to contribute to this goal. The scholars engaged in those efforts have pursued divergent paths, but one school of thought has moved decisively to the forefront. China’s experience does not cast doubt on its relevance, or even prominence, yet it suggests that multi-pronged …

International Greenhouse Gas Offsets Under The Clean Air Act, Nathan D. Richardson

Faculty Publications

Offsets, and in particular international offsets, have been advanced as an important tool in climate policy, capable of significantly reducing the costs of emissions reductions. As attention turns to the existing CAA as a potential vehicle for general reduction of GHG emissions, an important question is whether regulation under the statute is compatible with international offsets. Certain regulatory programs under the CAA are likely candidates for GHG regulation, but many of them are legally incompatible with international offsets. Those programs that might permit use of international offsets have other problems that make them unpopular choices for GHG regulation. To the …

Establishing A "Due Care" Standard Under The Lacey Act Amendments Of 2008, Rachel Saltzman

Michigan Law Review First Impressions

The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's …

South/North Exchange Of 2009 - The Challenges Of Climate Change Regulation For Governments On The Political Left: A Comparison Of Brazilian And United States Promises And Actions, Colin Crawford, Solange Teles Da Silva, Kevin Morris

Pace International Law Review Online Companion

No abstract provided.

A Complicated Environment: The Problem With Extending Victims' Rights To Victims Of Environmental Crimes, Andrew Atkins

Washington and Lee Law Review

No abstract provided.

Legal Barriers To Sub-National Governance Techniques By U.S. States For Renewable Energy Promotion And Ghg Control, Steven Ferrey

Suffolk University Law School Faculty Works

The attempt by many U.S. states to copy verbatim the European model of feed-in tariffs to promote renewable power and recent efforts of states to promote their renewable power development or greenhouse gas (“GHG”) emission restrictions have been successfully challenged legally in the past few months. These challenges have reinforced that these E.U. and Kyoto mechanisms employed by the states in the U.S. as a governance tool, run afoul of the U.S. Constitution. Renewable and climate change policy in the U.S. is undertaken by regulatory actions at the state, rather than federal, level. This is a significant issue going forward …

The Deepwater Horizon Oil Spill: Potential Insurance Coverage Implications, Lynn K. Neuner, W. Nicholson Price

Articles

More than 300 lawsuits have already been filed in Louisiana, Florida, Texas, Mississippi, and Alabama against BP and other corporations involved in the Deepwater Horizon oil spill, including Transocean, Halliburton, and Cameron, with thousands more anticipated. This article briefly addresses the contours of the coverage lawsuit already filed against BP and other coverage disputes we may see in the future.

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

The Icj And The Future Of Transboundary Harm Disputes: A Preliminary Analysis Of The Case Concerning Aerial Herbicide Spraying (Ecuador V. Colombia), Robert Esposito

Pace International Law Review Online Companion

No abstract provided.

Peace Parks For Mountain Forests: The Law And Policy Of Transforming Conflict To Stewardship, Elaine C. Hsiao

Dissertations & Theses

Peace parks provide a land ethic that transcends borders and seeks to stabilize tensions between bordering States, honoring the unity of biosphere systems in its efforts to achieve peace, conservation and cooperation. In theory, peace parks recognize that humans and the biosphere are one and that natural resources, just as cultural resources, must be collaboratively protected. In the cases of inhabited border regions, peace park principles of holistic conservation, cooperation and peace require that local communities be incorporated into park management. I posit that this is all the more true for frontier communities in regions of conflict, weak governance or …

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

Baselines Newsletter, No. 6, Summer/Fall 2010, University Of Colorado Boulder. Natural Resources Law Center

Baselines: The Natural Resources Law Center Newsletter (2007-2011)

No abstract provided.

Environmental Law, Travis M. Trimble

Mercer Law Review

In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency's adoption of the "unitary waters" definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency's rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh Circuit upheld …

Climate Refugees Require Relocation Assistance: Guaranteeng Adequate Land Assets Through Treaties Based On The National Adaptation Programmes Of Action, Holly D. Lange

Washington International Law Journal

Rising ocean levels in the South Pacific threaten thousands of inhabitants with displacement. Many of these small Pacific island states lack available land to internally accommodate displaced individuals. Thus, thousands of “climate refugees” will be forced to move off their island homes and, without provisions of adequate land rights, will most likely end up in refugee camps in other countries. Climate change exemplifies an inherently global challenge. Developed countries produce disproportionately more greenhouse gases, and developing countries lack resources to adequately respond to climatic displacement. International treaties establish a legal responsibility to assist developing states adapt to climate change. However, …

Rethinking Trust Law Reform: How Prudent Is Modern Prudent Investor Doctrine?, Stewart E. Sterk

Articles

During the 1990s, modern portfolio theory provided the theoretical foundation for significant reforms in trust investment doctrine-reforms that freed trustees from a legal regime in which they faced potential liability for making "speculative" investments. The reforms enabled trustees to pursue investment policies that protected beneficiaries against inflation risk. But the reforms worked too well; they encouraged trustees to invest a higher percentage of trust assets in equities just in time for a decade that has seen two precipitous stock market declines. Although no sensible investment strategy would have avoided losses during these periods of market turmoil, the doctrinal reforms endorsed …

Ecosystem Services And The Value Of Land, Adam I. Davis

Duke Environmental Law & Policy Forum

No abstract provided.

The Role Of Federal Policy In Establishing Ecosystem Service Markets, Laurie A. Wayburn, Anton A. Chiono

Duke Environmental Law & Policy Forum

No abstract provided.

Implications Of A Federal Renewable Portfolio Standard: Will It Supplement Or Supplant Existing State Inititives?, James M. Van Nostrand, Anne Marie Hirschberger

Law Faculty Scholarship

No abstract provided.

Conservation Easements And Adaptive Management, Jesse Richardson

Law Faculty Scholarship

The perpetual nature of conservation easements makes adaptive management difficult on easement property. Various easement provisions may be used to incorporate adaptive management principles into a conservation easement, but various factors, including state statutory requirements and Internal Revenue Code requirements for deductibility, limit the flexibility of management on conservation easement lands. Jesse Richardson discusses how conservation easements limit implementation of adaptive management principles on protected lands. Case studies of conservation easements that now fail to fulfill the original conservation purpose, but are locked into perpetual conservation, illustrate the limitations of conservation easements. Richardson also discusses likely future conflicts between conservation …

Editor’S Note, Patrick M. Duggan

Duke Environmental Law & Policy Forum

No abstract provided.

Ecosystem Services And Federal Public Lands: Start-Up Policy Questions And Research Needs, J. B. Ruhl

Duke Environmental Law & Policy Forum

No abstract provided.

The State And Regional Role In Developing Ecosystem Service Markets, Gail L. Achterman, Robert Mauger

Duke Environmental Law & Policy Forum

No abstract provided.

Additionality: The Next Steps For Ecosystem Service Markets, Karen Bennett

Duke Environmental Law & Policy Forum

No abstract provided.

Power, Exit Costs, And Renegotiation In International Law, Timothy L. Meyer

Scholarly Works

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

Design Principles For Carbon Emissions Reduction Programs, Michael P. Vandenbergh, Paul C. Stern, Gerald T. Gardner, Thomas Dietz, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

The goal, articulated by President Obama in 2009, of reducing U.S. carbon emissions 17% from the 2005 level by 2020 iseminently achievable without new technology or appreciable sacrifice by energy users. However, achieving it will in part require sophisticated energy efficiency and conservation programs. To overcome institutional and behavioral barriers, these programs will need to implement six principles of effective design derived from 30 years of behavioral and social science research. We focus on the household sector, but believe our general conclusions likely apply to other sectors as well.

We recently developed an analysis for the household sector--energy use in …

Policy Challenges Of The Heterogeneity Of The Value Of Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Economic research has developed estimates of the heterogeneity of the value of statistical life (VSL) on dimensions such as individual age, income, immigrant status, and the nature of the risk exposure. This paper examines the empirical evidence on the heterogeneity of VSL and explores the potential implications for the valuation of regulatory policies. Previously, the U.S. Environmental Protection Agency (EPA) unsuccessfully sought to adopt a simple age discount percentage for VSL based on survey evidence. However, labor market estimates of VSL indicate a pattern that tracks lifetime consumption trajectories, as the VSL rises with age and eventually tapers off but …

Ecosystem Services And Federal Public Lands: Start-Up Policy Questions And Research Needs, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Essay, based on my presentation at Duke Law School's 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines this emerging policy front and proposes a set of key policy questions, research needs, and options for building on the policy work that has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services, and why using the ecosystem services concept in public land policy is worth considering. Part II proposes several key research paths that must be addressed …

Siting Transmission Lines In A Changed Milieu: Evolving Notions Of The "Public Interest" In Balancing State And Regional Considerations, Jim Rossi, Ashley C. Brown

Vanderbilt Law School Faculty Publications

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition …

See No Evil - Revisiting Early Visions Of The Social Responsibility Of Business: Adolf A. Berle's Contribution To Contemporary Conversations, Erika George

Faculty Scholarship

This Article situates Adolf A. Berle's contribution to the field of corporate law in the context of current debates over the alleged complicity of multinational corporations in international human rights violations. Specifically, this Article revisits some central insights offered by Berle and Gardiner C. Means in The Modern Corporation and Private Property and reconsiders what conducting business consciously across borders requires in the context of a governance gap generated by economic globalization. Further, this Article considers how both ownership and control are well situated to ensure that business conduct becomes better aligned with a growing consciousness that business organizations must …