Environmental Law Commons^™

Endangered Species In The Oil Patch: Challenges And Opportunities For The Oil And Gas Industry, Gabriel Eckstein, Jesse Snyder

Faculty Scholarship

Tension among competing interests is nothing new in environmental law. Even among the most tenacious adversaries, the ability to find common ground can serve as an impetus to further the aims of both industry and environmental proponents. Broadly speaking, advocates of the oil and gas industry prefer few restraints, if any, on exploration, development, and production. Comparatively, champions of biological and ecological preservation favor regulatory protections to conserve these interests. Cutting across these often disparate objectives, the Endangered Species Act (ESA) presents a not-so-obvious opportunity for both sides to receive a share of the pie through cooperation and forward planning. …

The Sinking Of Sovereignty And Sovereign Rights? Mitigating The Impacts Of Climate Change To Maritime Jurisdiction And A Proposal For Solutions, I Made Andi Arsana

Indonesia Law Review

While some still debate whether or not climate change is a reality, one of its impacts, sea level rise, is factual. The cause and the rate of sea level rise might have been inconclusive but its impacts have been clearly felt. Sea level rise can also change the legal status of insular features (small islands/rocks and low tide elevation) that will also affect their capacity in making maritime claim. For an archipelagic State like Indonesia, small outer islands/rocks or low-tide elevation are important for location of basepoints forming the entire system of archipelagic baselines. This paper investigates the impact of …

Cutting Carbon, Take Two: A Brief Guide To Federal Electricity-Sector Climate Policy Without Cap-And-Trade, Nathan Richardson, Joshua Linn

Faculty Publications

This paper explores federal policies, other than a carbon price, for reducing emissions from the electric power sector. These policies fall into two major categories: policies that encourage the development of non‐ or low‐emitting energy sources, and regulatory policies under existing legal authority (primarily the Clean Air Act). The paper provides an overview of policy options and a few concrete proposals, along with a summary of insights from economists on their advantages and disadvantages. Economists generally disfavor investment subsidies, but comparing other policy options, including regulatory approaches, technology mandates, and production subsidies, is complex. Excluding existing clean generation from incentive …

A Court-Imposed Nuclear Winter: New York V. Nuclear Regulatory Commission Breaks The Deferential Ice Resulting In National Nuclear Reactor Licensing Freeze, Laura A. Tucker

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Ehb Review - Knowledge, Necessaries, And Bad Faith: What Department Of Environmental Protection V. Danfelt Means For Spousal Liability And Attorney Fee-Shifting, Michael J. Haviland

Villanova Environmental Law Journal (1991 - )

No abstract provided.

On Solid Ground: Toward Effective Resource-Based Development, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The small island-state of Timor-Leste exemplifies the challenge of resource-based development for a poor country well-endowed with a valuable natural resource. Timor-Leste, which gained its independence in 2002, has accumulated $13 billion in its petroleum fund in less than a decade. Some of the largest multinational oil companies are operating in the country, and the revenues continue to flow. And yet, while Timor-Leste has seen very notable improvements in its development indicators in the past few years, it continues to face a massive challenge of converting financial wealth into economic development. There are also heated debates about how to spend …

All Bite And No Bark: Nonspecific Magic Words Sweep Aside Constitutional Concerns And Remove The Northern Rocky Mountain Gray Wolf From Endangered Species Act Protection In Alliance For The Wild Rockies V. Salazar, Emily A. Cathcart

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Effectiveness And Environmental Impact Of Economic Development Incentives As Measures To Respond To Environmental Harm, James E. Holloway

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Drilling For Split Estate Clarity: The Impact Of Minard Run Oil Company V. United States Forest Service, Clayton Gritz

Villanova Environmental Law Journal (1991 - )

No abstract provided.

A Greenhouse Gas Chain Reaction: The D.C. Circuit Warms Up The Epa's Regulatory Authority In Coalition For Responsible Regulation V. Epa, Sara E. Hoffman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Juxtaposing Nasa’S Aeronet Aod With Carb Pm Data Over The San Joaquin Valley To Facilitate Multi-Angle Imaging Spectroradiometer (Misr) Pm Pollution Research, John Kanemoto

STAR Program Research Presentations

Airborne particulate matter (PM) has been shown to increase the risk for asthma, chronic bronchitis, cardiopulmonary complications, and respiratory cell membrane damage/infection/leakage. PM levels are currently analyzed from two perspectives: stationary land-based monitoring (LBM) sites and total Aerosol Optical Depth (AOD) atmospheric column measurements. Both perspectives often leave miles of space between measuring locations and will have a continually increasing cost from introducing/maintaining sites. The Multi-angle Imaging SpectroRadiometer (MISR) satellite team hopes to begin investigating/archiving PM levels comprehensively via inputting MISR AOD measurements into a function/model which predicts the amount of ground level PM.

In the future, multivariable spatial correlations …

Trends In Environmental Law Scholarship 2008-2012, Michael P. Vandenbergh, Linda K. Breggin, Jacob P. Byl, Lynsey R. Gaudioso, Seamus T. Kelly

Vanderbilt Law School Faculty Publications

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute's (ELI's) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of the best ideas about environmental law and policy from the legal academic literature. As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles published during the previous academic year. In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic …

Physician Speech And Mandatory Ultrasound Laws: The First Amendment's Limit On Compelled Ideological Speech, Jennifer M. Keighley

Cardozo Law Review

Since Planned Parenthood v. Casey opened the door to more pervasive state regulation of abortions, states have increasingly used their regulatory power to coerce physician speech. The Supreme Court has not yet explained, however, whether and how physicians' First Amendment rights limit such attempts to coerce state-mandated speech. This Article argues that while the precise contours of physicians' First Amendment rights have yet to be articulated, physicians certainly retain the core First Amendment right to refuse to speak the state's ideological messages. I then evaluate whether mandatory ultrasound laws, which require a physician to perform an ultrasound exam and to …

Agenda: Changing Regulatory Frameworks For Shale Development And "Social License To Operate", University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Changing Regulatory Frameworks for Shale Development and "Social License to Operate" (July 24)

Rapid development of unconventional shale resources in recent years has raised a series of regulatory issues both here and abroad. Because of the "distributed" nature of shale development and the significant increase in wells in key basins, local land-use conflicts have also erupted in certain areas of the country, leading to restrictions and moratoria on drilling by state, county, and municipal governments and raising questions about the industry's continued social license to operate in key jurisdictions. This moderated panel discussion will assess the current regulatory framework governing shale gas development and the changing dynamics among federal, state, and local regulation …

Statutes Of Ill Repose And Threshold Canons Of Construction: A Unified Approach To Ambiguity After San Carlos Apache Tribe V. United States, Daniel Lee

Seattle University Law Review

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and …

Law And Lawyers In The Incident Command System, Clifford J. Villa

Seattle University Law Review

Although the Incident Command System (ICS) has existed for some forty years, the use of ICS grew significantly in the past decade because the United States learned hard lessons from infamous failures of incident management after 9/11 and Hurricane Katrina. As such, ICS theory and practice must be understood by legal scholars and practitioners who seek to contribute to the growing fields of climate change adaptation and disaster response. Filling a gap in the legal literature, this article will provide lawyers and legal scholars with an introduction to the Incident Command System, outlining the origin, doctrines, and organizational framework of …

Climate Regulation As If The Planet Matters: The Earth Jurisprudence Approach To Climate Change, Glenn Wright

Environmental and Earth Law Journal (EELJ)

It is now beyond doubt that humans are having an enormously detrimental impact on the natural world. In the face of the incredible environmental challenges we face, new and radical ideas have emerged about how we should regulate human behavior. This paper briefly focuses on the failure of current legal regimes to address climate change, and considers how climate governance would look under the Earth Jurisprudence approach: setting our laws within the context of fundamental principles of ecology and planetary boundaries. Consideration is given to how existing legal concepts could be used to achieve this vision. The paper concludes that …

Land Ethic Under Attack: Keystone Xl And The War Over Domestic S(Oil), Heather Culp

Environmental and Earth Law Journal (EELJ)

The Keystone XL pipeline has caused recent controversy and renewed the debate over the future of fossil fuels in the United States. The project pits largely conservative groups, who argue that the pipeline will create jobs and decrease America’s dependence on foreign oil, against environmental advocates, indigenous tribes, and private landowners, who are attempting to fend off the project because they believe it will displace them of their own lands as well as disrupt the natural ecosystems that lay in the pipeline’s path. In the wake of a presidential veto of the project and renewed sentiment by the pipeline’s …

Permitting Problems: Environmental Justice And The Miccosukee Indian Tribe, Charles Prior

Environmental and Earth Law Journal (EELJ)

The Miccosukee Tribe of Indians is a federally recognized tribe that works and resides in the Everglades region of the State of Florida. The Miccosukee have been battling lax water quality standards through lawsuits since the 1990’s. Recent rulings in federal court held that the State of Florida has failed to comply with the Clean Water Act and ordered the Environmental Protection Agency to set nutrient criteria for the water bodies in the state of Florida until the Florida Department of Environmental Protection complies with the Clean Water Act.

This article uses the principles of environmental justice to analyze ways …

Mapping The Terrain Of Earth Jurisprudence: Landscape, Thresholds And Horizons, Anne Louise Schillmoller, Alessandro Pelizzon

Environmental and Earth Law Journal (EELJ)

This paper investigates central ideas in the emergent field of Earth Jurisprudence. It suggests that development of conceptual and practical frameworks for an earth justice system predicated on rights of nature is currently at a nascent stage, but such ‘creative uncertainty’ provides scholars and practitioners with opportunities to identify and articulate new conceptual frameworks which avoid some of the hazards of human exceptionalism.

Part I suggests that the concept of ‘rights of nature’ rests upon contestable epistemological and ontological claims and that an effective Earth Jurisprudence will require a continual negotiation of interpretative disagreements and frameworks for action.

Part II …

State Conservation As Settler Colonial Governance At Ka‘Ena Point, Hawai‘I, Bianca Isaki

Environmental and Earth Law Journal (EELJ)

This paper argues, by illustrating, that liberal multiculturalism and natural resources are interlinked strategies of settler colonial governance in political debates surrounding the construction of a “predator-proof” fence for conservation purposes across Native Hawaiian lands of deep cultural and historical significance at Ka`ena Point, a state wilderness park in Hawai`i. First, this paper shifts debates framed in terms of the seeming recalcitrance of Native Hawaiian cultural practitioners to recognize the necessity of natural resource management. Second, it considers how these political debates are repeated in the context of legal questions over the forms through which Native Hawaiian cultural claims may …

Effective Clean Air Act Enforcement In The Face Of Statute-Of-Limitations And Successor Liability Barriers, Paul Wierenga

Student Articles and Papers

The volume of NO_X andSO₂ emissions each year from unregulated, grandfathered power plants demonstrates that the goal of the CAA's PSD program, to ensure that air quality standards under NAAQS do not in effect become a ceiling, has achieved only limited success. One significant challenge under the PSD program is the difficulty associated with identifying major emitting facilities that have made major modiciations. This repeatedly results in statute-of-limitations problems for enforcement efforts. To resolve this enforcement difficulty, reviewing courts have split into two competing interpretations of the statutory and regulatory requirements of the PSD program. The proper interpretation …

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatlole Boute, Steve Charnovitz, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt

Scholarly Publications

Reducing emissions of greenhouse gases will require the developing carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms, such as carbon pricing, must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio. This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international trade …

Food Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, focusing on produce and grain, discusses the environmental and climate change impacts of food production, processing, packaging, and distribution, which ultimately contribute to both economic and social costs. The article addresses environmental energy costs in the food supply. Figure 1 shows, for example, the significant amount of energy used in various aspects of food production, transportation, and processing.

Much of this article's focus will be on commodity crops. Along with wheat and rice, corn and soybeans constitute the world's most popular planted and consumed crops. The United States is the leading producer of corn, growing nearly 40 percent …

The "Positive Effect" Escape Hatch: The Eleventh Circuit's New View Of The Catalyst Theory And The Resulting Difficulty For Plaintiffs To Receive Attorney Fees, Lindsay Schafer

Mercer Law Review

Environmental plaintiffs now have fewer opportunities to receive attorney fees in the wake of the United States Court of Appeals for the Eleventh Circuit's decision in Friends of the Everglades v. South Florida Water Management District (Friends of the Everglades II). In this case the court further narrowed what plaintiffs' civil suits must accomplish to have a "positive catalytic effect." While many circuits, including the Eleventh Circuit, have focused on what it means for a party to be a "prevailing party" under various statutory schemes, and thus receive attorney fees, this case marks the first time the Eleventh Circuit has …

Creating New Spaces For Sustainable Water Management In The Senegal River Basin, Frans J.G. Padt, Juan Carlos Sanchez

Natural Resources Journal

No abstract provided.

International Trade And Investment Law And Carbon Management Technologies, Nigel Bankes, Anatole Boute, Steve Charnovitz, Shi-Ling Hsu, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt

Natural Resources Journal

No abstract provided.

Applying Some Lessons From The Gulf Oil Spill To Hydraulic Fracturing, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

In this article, Robertson notes that Ohio is moving quickly towards hydraulic fracturing of horizontal wells and some argue it has insufficiently considered and managed that rush in light of the potentially disastrous, albeit unlikely, consequences of groundwater contamination, explosion at wells or drilling sites, depletion of freshwater supply as high volumes are used in fracturing, and disposal of contaminated flowback water. Similarly, although drilling for oil from deep water rigs was neither a new idea nor a new technology when the Macondo well blew out on April 20, 2010—killing 11 people, spewing tons of oil in the Gulf of …

Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson C. Flournoy, Allison Fischman

UF Law Faculty Publications

This Article raises the question of how we should assess the potential threat to wetlands posed by the impacts of a changing climate and considers the role that section 404 of the Clean Water Act can play both in assessing and responding to that threat. Our inquiry is two-fold. First, should we be concerned about climate impacts on wetlands? And if so, how can section 404 help us to assess and respond to this threat?

Part I surveys the scientific literature on the projected impacts of climate change of particular relevance to wetlands and the impacts anticipated for particular types …

Brief 8: International Fisheries Governance That Works: The Case For A Global Fisheries Organization, J. Samuel Barkin, Elizabeth R. Desombre

Governance and Sustainability Issue Brief Series

International fisheries are being overexploited, and the current institutional structure in place to manage them is not working effectively. Presently, two sets of intergovernmental institutions oversee global fishing. The first comprises roughly three dozen regional fisheries management organizations (RFMOs), approximately 19 of which are charged with regulating fishing in the areas they oversee. The second set consists of global organizations that touch on but do not directly regulate fisheries issues, such as the United Nations Food and Agriculture Organization (FAO), the World Trade Organization (WTO), the World Bank, and the International Maritime Organization (IMO). This management patchwork is inadequate to …