Environmental Law Commons^™

Bad Neighbors And A Luckless Landlord: How The Clean Air Act Doomed The Environmental Protection Agency, Michael S. Weldon Jr.

Mercer Law Review

Air pollution emissions pay little deference to state borders: emissions generated in upwind State A may travel to affect the air quality of downwind State B. As a result of this inevitability and its unfair implications for the downwind state, under the Clean Air Act, upwind states have a "good neighbor" responsibility. Through the good neighbor provision, the upwind state may initially develop a State Implementation Plan (SIP) to determine its own mechanism for restricting emissions that contribute to a downwind state's nonattainment of federal regulations. In August of 2011, however, the Environmental Protection Agency (EPA) took matters into its …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2012, the United States Court of Appeals for the Eleventh Circuit, deciding an issue of first impression, held that a party that enters a consent order to settle potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not entitled to pursue a cost recovery action against other potentially responsible parties under section 107 of the Act, but may only seek contribution from those parties under section 113(f) of the Act. The court also affirmed a decision by the Bureau of Ocean Energy Management to approve an exploration plan for oil and gas drilling in the …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2012, the United States Court of Appeals for the Eleventh Circuit, deciding an issue of first impression, held that a party that enters a consent order to settle potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not entitled to pursue a cost recovery action against other potentially responsible parties under section 1073 of the Act, but may only seek contribution from those parties under section 113(f) of the Act. The court also affirmed a decision by the Bureau of Ocean Energy Manage- ment to approve an exploration plan for oil and gas drilling in …

Environmental Protection Agency Consultations With Indian Tribes: An Intercultural Struggle Over Process Of 'Consent', Denise Scannell Guida

Publications and Research

On November 6, 2000, President Bill Clinton signed his final executive order on

Consultation and Coordination with Tribal Governments. It was his last attempt to establish meaningful consultation processes with American Indians in the development of federal environmental policies. Based on ongoing environmental issues between the two cultures and the rising concern for environmental justice, the United States government wanted to identify the necessary improvements in communication and coordination among tribal and federal environmental programs, specifically regarding issues of information exchange, and creating partnerships among stakeholders. An analysis of the executive order, and a case study of the U.S. …

Slides: What Does Climate Change Mean For Cold Water Fisheries, Stan Bradshaw

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

1 page "Abstract" and 8 slides

Nonhuman Rights To Personhood, Steven M. Wise

Pace Environmental Law Review

2012 Dyson Distinguished Lecture, delivered April 26, 2012 at Pace Law School. Introduction by Prof. David N. Cassuto. Video available here.

Response To New York’S Proposed Solar Renewable Energy Market: Lessons Learned From Other States’ Srec Markets And Recommendations In Moving Forward, Joe Naroditsky

Pace Environmental Law Review

Response to comment by Jesse Glickstein.

New York’S Proposed Solar Renewable Energy Market: Lessons Learned From Other States’ Srec Markets And Recommendations In Moving Forward, Jesse Glickstein

Pace Environmental Law Review

This paper presents analysis of eight states that currently have operating solar renewable energy credit markets as part of their state’s renewable portfolio system, in order to make recommendations as to how the New York legislature should amend the pending legislation based on lessons learned from those other states. In Part II, the different SREC markets that have been implemented in different states throughout the United States are examined. In Part III, the different issues that varying SREC markets have encountered will be discussed, and several possible explanations as to the causes of these issues are presented. In Part IV, …

The Chinese Legal Tradition As A Cultural Constraint On The Westernization Of Chinese Environmental Law And Policy: Toward A Chinese Environmental Law And Policy Regime With More Chinese Characteristics, Paul A. Barresi

Pace Environmental Law Review

This Article argues that the Chinese legal tradition is essentially a Confucian legal tradition, and that its Confucian attributes significantly constrain the effectiveness of the Western-style environmental laws enacted by the PRC in recent decades. Part I explores the emergence of a Confucian legal tradition in China and its impact on Chinese legal culture before the founding of the PRC. Part II highlights some of the impacts of this tradition on the Chinese legal system during the same period. Part III makes a case for the endurance of the Confucian essence of this legal tradition in the PRC itself, and …

A Mindful Environmental Jurisprudence?: Speculations On The Application Of Gandhi’S Thought To Mcwc V. Nestlé, Nehal A. Patel, Lauren Vella

Pace Environmental Law Review

We attempt to engage modern legal reasoning with Gandhi’s thought. We hope to speculate on what jurisprudence would look like if it were more mindful of the concepts central to Gandhi’s thought. By using Gandhi as an intellectual anchor, we hope to take a step toward creating a more “mindful jurisprudence” that implicitly incorporates into its reasoning the needs of environmental stewardship, disempowered populations, and the poverty-stricken. Because Gandhi’s thought has been discussed at length in environmental justice campaigns, we begin this effort by examining the relationship between environmental law and Gandhi’s thought. Given Gandhi’s commentaries on exploitative and oppressive …

The Liberal Limits Of Environmental Law: A Green Legal Critique, Michael M'Gonigle, Louise Takeda

Pace Environmental Law Review

The field of environmental law embodies a deep contradiction—it is a product of the state, yet the state is the primary agent of development. This contradiction infuses state-supported resource regimes (energy, forestry, agriculture, water use) that have long been agents of environmental erosion while they have remained resistant to progressive reform. It also underpins the theoretical framework for proposed reforms today, ecological modernization. The result is that environmental law extends, rather than resolves, society’s underlying environmental “problematic.” This can now be seen in institutional responses to climate change and the “green economy.” To address this situation, the authors apply a …

Only One Mekong: Developing Transboundary Eia Procedures Of Mekong River Basin, Jian Ke, Qi Gao

Pace Environmental Law Review

China shares borders with fourteen countries and has many international rivers. In most cases, China is an upstream state. Over the past years, increasing international disputes concerning international rivers have occurred between China and other riparian states, such as China’s dam construction on the upper Mekong River and the Songhua River pollution accident. In particular, with the ongoing dam construction on the upstream of Mekong in China, its potential environmental impact on the other Mekong countries is highly profiled. At the time of writing, five dams are already completed and two are in the final stage of construction or getting …

Problems For Pale Male: An Analysis Of The U.S. Fish And Wildlife Service’S Nest Destruction Policy, Brent Plater, Nicole Lopez-Hagan, Laura Horton

Pace Environmental Law Review

During the 2004 holiday season, Pale Male, New York City’s celebrated and world-renowned red-tailed hawk, had his nest deliberately destroyed. The nest was approximately 400-pounds and was built over several years. Almost immediately, this act of destruction was met with popular uproar among his many fans throughout the world. This tragic story could easily have been avoided if the United States Fish and Wildlife Service (Service) had correctly carried out its duties under the Migratory Bird Treaty Act (MBTA). What happened to Pale Male years ago is still a possibility today because the Service’s policy remains the same. This article …

Slides: Is There A Dust Bowl In Our Future?: Projections For The Eastern Rockies And Central Great Plains, Dennis Ojima

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

Presenter: Dennis Ojima, Senior Research Scientist, Natural Resource Ecology Laboratory, Colorado State University (NREL/CSU)

30 slides

Slides: Future Water Availability In The West: Will There Be Enough?, Michael Dettinger

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

Presenter: Michael Dettinger, USGS, Scripps Institution of Oceanography, La Jolla, CA

30 slides

"with contributions from Julio Betancourt, Dan Cayan, & others"

Slides: A History Of Climate Variability And Change In The American West, Kelly T. Redmond

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

Presenter: Kelly T. Redmond, Regional Climatologist, Western Regional Climate Center (WRCC), Desert Research Institute

65 slides

Agenda: Water, Oil And Gas: Recycling And Reuse Of Water, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project, Rocky Mountain Land Use Institute, Sturm College Of Law, University Of Denver, Colorado Bar Association, Natural Resources & Energy Section

Water, Oil and Gas: Recycling and Reuse of Water (June 11)

Program co-chairs: Sarah Klahn, Matthew Sura; planning committee: Susan Daggett, Kathryn Mutz.

Co-sponsored by: Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School, Rocky Mountain Land Use Institute, Sturm College of Law, University of Denver, Natural Resources & Energy Section of the Colorado Bar Association.

This program is the second in a 3-part series focusing on critical water, oil and gas issues in Colorado. This second program focuses on the technology behind the recycling of produced water and hydraulic back fracturing flowback fluid and the issue of mandatory recycling. It also addresses the legal implications …

Environmental Law Outside The Canon, Todd S. Aagaard

Working Paper Series

It is time to rethink the domination of environmental law by a canon of major federal environmental statutes enacted in the 1970s. Environmental law is in a malaise. Despite widespread agreement that existing laws are inadequate to address current environmental problems, Congress has not passed a major environmental statute in more than twenty years. If it is to succeed, the environmental law of this new century may need to evolve into something that looks quite different than the extant environmental law canon. The next generation of environmental laws must be viable for creation and implementation even in an antagonistic political …

A Fine Romance: The Indulgent Relationship Between Federal Courts And Federal Agencies And The Broken Nepa Decision-Making Process. Prairie Band Pottawatomie Nation V. Fed. Highway Admin., Salama Gallemore

Journal of Environmental and Sustainability Law

No abstract provided.

Designing Subsidies For Low-Carbon Energy, David Weisbach

Journal of Environmental and Sustainability Law

No abstract provided.

Lighting In A Bottle: Using Tax Policy To Solve Renewable Energy's Storage Challenges, Roberta F. Mann

Journal of Environmental and Sustainability Law

No abstract provided.

Long Live Volumetric Apportionment: Will Courts Follow Burlington Northern: The Mystery Continues! United States V. Ncr Corporation, Arsenio L. Mims

Journal of Environmental and Sustainability Law

No abstract provided.

Murky Waters: The Supreme Court's Decision On Navigability And It's Implications On Judicial Power. Ppl Montana, Llc V. Montanta, Paul Conklin Iii

Journal of Environmental and Sustainability Law

No abstract provided.

Unwise Beats Uninformed: The Rock, Paper, And Scissors Of Nepa Challenges, Amie Coleman

Journal of Environmental and Sustainability Law

No abstract provided.

Deepwater Exploration In The Gulf: The Eleventh Circuit Balances Energy Independence And Environmental Responsibility Post-Deepwater. Defenders Of Wildlife V. Bureau Of Ocean Energy Mgmt., Ryan Harris

Journal of Environmental and Sustainability Law

No abstract provided.

Tax Benefits, Property Rights, And Mandates: Considering The Future Of Government Support For Renewable Energy, Alexandra B. Klass

Journal of Environmental and Sustainability Law

No abstract provided.

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.

Baby Steps, Not Leaps, Toward Relief. Anatomizing Sackett V. Epa, John Shikles

Journal of Environmental and Sustainability Law

No abstract provided.

Title Page

Journal of Environmental and Sustainability Law

No abstract provided.

All Carrot And No Stick: Why Washington's Clean Water Act Assurances Violate State And Federal Water Quality Laws, Oliver Stiefel

Washington Law Review

Current Washington State rules governing timber activities—including logging, road construction, and timber processing—were achieved through negotiated compromise. In response to growing concern over the decline of several salmonid species, stakeholders from government agencies, environmental groups, and the timber industry negotiated a plan for regulating timber activities to better meet the needs of aquatic species, while maintaining a robust and sustainable timber industry. The rivers and streams flowing through Washington’s forests provide habitat for numerous aquatic species, including several species of anadromous salmonids. Timber activities, however, pose a threat to healthy habitat. In the 1990s, degraded forest habitat in Washington necessitated …