Environmental Law Commons^™

Addressing Global Climate Change In An Age Of Political Climate Change, Brigham Daniels

BYU Law Review

For a number of years, many within the environmental legal community have advocated an all-out attack strategy of forcing the United States to address climate change by bringing novel lawsuits under existing environmental laws. In 2007, with the seminal case of Massachusetts v. EPA, it appeared that those advocating this strategy had a winning game plan. That sense grew and solidified when the Obama Administration came to power. However, over the past several years, we have seen a countervailing movement embodied in a growing resentment towards EPA and climate change policy in general. This movement has mobilized into a powerful …

Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey

BYU Law Review

Public organizations, including those involved in contingency planning, have tremendous influence over the ultimate scale and scope of an environmental crisis. Yet our understanding of how organizational behavior can either rein in or exacerbate crises continues to lag behind advances in technology. This Article considers the role of public organizations in the blowout of the Macondo well in the Gulf of Mexico. Its theoretical lens is the “paradox of organizing,” a frame that I suggest should be applied to interorganizational responses to low-probability, high-consequence events. The struggle to differentiate tasks and subunits and then piece them together during moments of …

Navigating The Intersection Of Environmental Law And Disaster Law, Daniel Farber

BYU Law Review

In an environmental disaster, a disaster causes environmental harm, or an environmental change causes an acute risk to humans, or a combination of both takes place. Examples include the BP oil spill, the London killer fog of 1952, the 2003 European heat wave, and the 2011 Japanese tsunami. Climate change will intensify the connection between disaster issues and the environment. Given the interwoven nature of disasters and the environment, we should consider what environmental law and disaster law can learn from each other. Environmental law has the most to teach disaster law about risk management and prevention. Disaster law, in …

A Learning Collaboratory: Improving Federal Climate Change Adaptation Planning, Alejandro E. Camacho

BYU Law Review

No abstract provided.

Legal Remedies For Deep Marine Oil Spills And Long-Term Ecological Resilience: A Match Made In Hell, Robin Kundis Craig

BYU Law Review

The Deepwater Horizon oil spill that lasted from April to September 2010 was not only the worst oil spill disaster in United States history, but also the first to occur at great depth. Drilling at great depth multiplies the risks and complications of offshore oil extraction. It also, as this Article explores, makes natural resource damages a decisively inadequate remedy for the injuries done to the Gulf of Mexico’s (the “Gulf”) ecosystems, especially the poorly understood but highly productive ecosystems that exist almost a mile below the surface. This Article argues that our current natural resource damages regimes for oil …

Adaptive Mitigation In The Electric Power Sector, Lesley K. Mcallister

BYU Law Review

No abstract provided.

Rebuttal In Defense Of The Klamath Hydroelectric Settlement Agreement, Michael A. Swiger, Sharon L. White

Washington Journal of Environmental Law & Policy

This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to …

Beyond The Blaze: Strategies For Improving Forest Service Fire Suppression Policies, Aurora R. Janke

Washington Journal of Environmental Law & Policy

Current Forest Service fire management policies restrict NEPA’s application to fire suppression actions and contribute to a lack of detailed information about the effectiveness and environmental impact of suppression efforts. Decisions by the U.S. District Court for the District of Montana in the Forest Service for Environmental Ethics v. U.S. Forest Service litigation suggest that NEPA review applies to commonly used fire suppression tactics and that the Forest Service should conduct this review before fires occur. Other recent federal district court decisions and congressional concern with current fire suppression efforts support the need for NEPA review in the fire suppression …

Creating An Environmental No-Man's Land: The Tenth Circuit's Departure From Environmental And Indian Law Protecting A Tribal Community's Health And Environment, Claire R. Newman

Washington Journal of Environmental Law & Policy

When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers Jr., Jason Derosa, Sarah Reyneveld

Washington Journal of Environmental Law & Policy

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

Worthy Of Their Name? Addressing Aquatic Nuisance Species With Common Law Public Nuisance Claims, Christopher Grubb

Chicago-Kent Law Review

Aquatic invasive species like the Asian carp and zebra mussel have caused grave ecological and economic harm across the United States, and frequently harm rights common to the public such as boating, fishing, and bathing. Yet, Congress' efforts to address the problem through legislation have been piecemeal and unsuccessful. Historically, the common law of public nuisance served as an important tool to remedy transboundary pollution. More recently, courts have established that such public nuisance claims will be displaced where Congress has comprehensively regulated in a field. This Note explores whether public nuisance claims involving aquatic invasive species should be displaced …

The Bp Deepwater Horizon: A Cautionary Tale For Ccs, Hydrofracking, Geoengineering And Other Emerging Technologies With Environmental And Human Health Risks, Mark A. Latham

William & Mary Environmental Law and Policy Review

This Article first discusses the technological issues surrounding the BP Deepwater Horizon and summarizes how regulator and industry reliance on an inadequate fail-safe device played a crucial role in this disaster. Next, I discuss the fundamentals of carbon capture and sequestration, hydraulic fracturing, and geoengineering; that is, I attempt to capture what they involve, followed by the environmental and human health risks they present. I then summarize the current or proposed regulation of these technologies and analyze whether those regulations are sufficient to adequately protect human health and the environment. I conclude with recommendations for policymakers and regulators to consider …

Too Big To Obey: Why Bp Should Be Debarred, Rena Steinzor, Anne Havemann

William & Mary Environmental Law and Policy Review

No abstract provided.

Evolving Law And Policy For Freshwater Ecosystem Service Markets, Martin W. Doyle, Todd Bendor

William & Mary Environmental Law and Policy Review

No abstract provided.

A Comparison Of Renewable Portfolio Standards And Feed-In Tariffs As Legislative Mechanisms To Provide Renewable Power Incentives: Impacts On Power Supply, Transmission, And Grid Intermittency, Steven Ferrey

Suffolk University Law School Faculty Works

A federalist form of government is used in several important nations, including the United States, Germany, India, Australia, Brazil, Canada, Malaysia, and Switzerland. A federalist form of government divides political sovereignty between a central federal authority and constituent states or provinces. To implement new government policy regulating private power, the challenging transcendent issues are legal and regulatory, rather than technical. Certain measures in various industrialized countries, when implemented at the state rather than federal level, must be designed and implemented carefully to achieve a legal, regulatory fit in a federalist system of government.

For purposes of comparison, this article considers …

Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua Fershee

William & Mary Environmental Law and Policy Review

No abstract provided.

The Principle Of Resilience, Lia Helena Monteiro De Lima Demange

Dissertations & Theses

This article departs from the observation of accentuated degradation of ecosystems worldwide to stress the urgency in changing the patterns of occupation of the land, production, consumption and the ecological and ethical goals of environmental conservation. Aiming to achieve these ends, this article proposes the acknowledgement of the principle of resilience in international environmental law. The principle of resilience is articulated herein based on the concept of ecological resilience; the values of land ethic; and the existing principles of international environmental law. Later, the article explains how the principle can be applied to adaptive governance; adaptive management; environmental impact …

Mountains Of Injustice : Social And Environmental Justice In Appalachia, Michele Morrone, Geoffrey L. Buckley

Ohio University Press Open Access Books

Research in environmental justice reveals that low-income and minority neighborhoods in our nation’s cities are often the preferred sites for landfills, power plants, and polluting factories. Those who live in these sacrifice zones are forced to shoulder the burden of harmful environmental effects so that others can prosper. Mountains of Injustice broadens the discussion from the city to the country by focusing on the legacy of disproportionate environmental health impacts on communities in the Appalachian region, where the costs of cheap energy and cheap goods are actually quite high.

Through compelling stories and interviews with people who are fighting for …

Waste Not, Want Not: Low-Level Radioactive Waste And The United States' Need For A Revised System Of Disposal. Energysolutions, Llc V. Utah, Mark A. Abbott

Journal of Environmental and Sustainability Law

No abstract provided.

Secular Vs. Sacred: Nepa Again Proves To Be An Ineffective Tool To Protect Sacred Land. Pit River Tribe, Et Al. V. United States Forest Service, Et Al., Joshua K. Friel

Journal of Environmental and Sustainability Law

No abstract provided.

A Supplemental Labeling Regime For Organic Products: How The Food, Drugs, And Cosmetic Act Hampers A Market Solution To An Organic Transparency Problem , Ariele Lessing

Journal of Environmental and Sustainability Law

No abstract provided.

Crying Over Spilt Milk: A Closer Look At Required Disclosures And The Organic Milk Industry. International Dairy Foods Association V. Boggs, David A. Martin

Journal of Environmental and Sustainability Law

No abstract provided.

Do Polluters Truly Pay? A Chip In The "Potentially Responsible Parties" Analysis For Hazardous Waste Cleanup. Celanese Corporation V. Martin K. Eby Construction Company, Inc., Katherine E. Vogt

Journal of Environmental and Sustainability Law

No abstract provided.

Mercury Rising? Fifth Circuit Applies Administrative Laws Retroactively Deep In The Heart Of Texas. Sierra Club, Inc. V. Sandy Creek Energy Assoc., L.P., Kristen R. Michael

Journal of Environmental and Sustainability Law

No abstract provided.

Environmental Law Updates

Journal of Environmental and Sustainability Law

No abstract provided.

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen, Madeline Gottlieb, Joshua Linn, Nathan Richardson

Vanderbilt Law Review

Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by a firm; and (2) there may be principal-agent …

Real-Time Economic Analysis And Policy Development During The Bp "Deepwater Horizon" Oil Spill, Joseph E. Aldy

Vanderbilt Law Review

The 2010 BP Deepwater Horizon oil spill posed near-term economic risks to the Gulf of Mexico region and raised questions about appropriate policies to mitigate catastrophic oil-spill risks. This Essay reviews the Obama Administration's assessment of the economic vulnerabilities to the spill, the Administration's May 12, 2010, legislative proposal focused on minimizing the adverse economic impacts to workers and small businesses in the Gulf of Mexico, and the effort to secure an agreement with BP to ensure that those harmed by the spill will receive full compensation. Then, the Essay discusses several of the policy reforms advanced by the Administration …

Coastal Wetland Restoration And The "Deepwater Horizon" Oil Spill, Edward B. Barbier

Vanderbilt Law Review

Both the 2005 Hurricanes Katrina and Rita and the 2010 BP oil spill have focused attention on the need to restore coastal wetland habitats along the Gulf of Mexico of the United States. As restoration is required by the Oil Pollution Act of 1990, restoring coastal wetlands will be required as part of BP's legal obligations. Although plans to restore the Mississippi River Delta are well on their way, the damages to the Gulf Coast wetlands caused by the Deepwater Horizon spill are still occurring and have yet to be fully assessed. At this critical time for wetland restoration in …

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen

Vanderbilt Law Review

Nathan Richardson 64 Vand. L. Rev. 1853 (2011) Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by …