Environmental Law Commons^™

Cercla Apportionment Following Burlington Northern: How Joint And Several Liability Still Thrives—To The Surprise Of Many, Ryan Brady

Washington Journal of Environmental Law & Policy

Courts have generally held parties who are responsible for hazardous waste jointly and severally liable for that harm under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On rare occasions, parties have shown a reasonable basis for apportionment of the harm and avoided joint and several liability. However, in 2009, the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. United States upheld an apportionment of harm based on a seemingly lower standard of evidence than courts have required in the past, potentially lowering the burden on parties to obtain apportionment. This article briefly summarizes Burlington Northern …

Legal Study On The Climate Change-Induced Migrants In China, Deng Haifeng, Zhao Yumin

Washington Journal of Environmental Law & Policy

While climate change is a natural phenomenon, it has also caused a series of social problems for human society. One of the most serious repercussions of climate change is the impact on population movements. As the effects of climate change grow exponentially, the number of climate change-induced migrants will also increase. Climate change-induced migrants are individuals who spontaneously or forcibly migrate temporarily or permanently from their hometowns to other regions under the influence of climate policies or climate-related projects. Climate change, either suddenly or gradually, negatively affected these migrants’ living conditions, making it impossible to survive where they were located. …

Global Water Resources & Publications, Taryn L. Rucinski

Elisabeth Haub School of Law Faculty Publications

Before we as a society can begin crafting innovative legal solutions to help combat the global water crisis, researchers and experts in the field first need access to sound sources of scientific information. Despite the seeming simplicity of that goal, locating research about water, sanitation, and agricultural conditions, especially in developing countries, can be immensely challenging as it is complicated by issues of language, currency, scope, and accuracy. The purpose of this note is to provide practitioners with a list of free, high quality resources that should help make their research in this area a bit more accessible.

Options For Adaption To Climate Change, Richard L. Ottinger, Pianpian Wang, Kristin M. Motel

Elisabeth Haub School of Law Faculty Publications

In order to tackle climate change, the Intergovernmental Panel on Climate Change (“IPCC”) provided a portfolio of measures: mitigation, adaptation and constant research. Although Article 10 of the Kyoto Protocol underlined the importance of adaptation, adaptation to climate change had been obtained limited attention in the early negotiations of climate talks. In 2010, Cancun Session of Conference of Parties (“COP”) of the United Nations Framework Convention on Climate Change (“UNFCCC”) highlighted the equal importance of adaptation just as mitigation. Since then, increasing attention has been drawn to adaptation practice by the international society. Typically, adaptation can be broken down into …

Environmental Law, Travis M. Trimble

Mercer Law Review

In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project. The court also decided two cases under the Clean …

Review Mechanisms In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic review mechanisms, provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract or license and consider whether circumstances have changed since the parties’ initial agreement, are a mechanism that may smooth the process of dealing with inevitable changes in circumstances over the long term of extractive industries contracts. This briefing note looks at the use of such mechanisms, through reviewing existing extractive industry agreements, and considers how the requirements have been expressed to-date and their role as a tool to maintain the relationship between the parties. The Brief examines issues …

On Local Fracking Bans: Policy And Preemption In New Mexico, Alex Ritchie

Natural Resources Journal

In the midst of the hydraulic fracturing revolution, elected officials in Mora County, New Mexico recently banned all oil and gas production within the county. But the officials went even further, stripping corporations of constitutional rights and declaring the constitutions of the United States and the state of New Mexico illegal if interpreted as inconsistent with the ordinance. Why would a small rural county like Mora with no oil and gas operations to speak of adopt such an extreme ordinance? This article applies economics, political choice, and localism theories to argue that Mora County’s decision may be at least partly …

Hydraulic Fracturing: If Fractures Cross Property Lines, Is There An Actionable Subsurface Trespass, Keith B. Hall

Natural Resources Journal

The law recognizes trespass liability for subsurface intrusions, at least in some circumstances. Further, courts sometimes have stated that ownership of land extends to the earth’s center. But such statements are dicta. Few courts have carefully considered the maximum extent of subsurface ownership or subsurface trespass liability. Courts in two jurisdictions have recently addressed whether a person incurs liability when he causes hydraulic fracturing fluid to intrude into the subsurface of a neighbor’s land, but the courts reached opposite conclusions, with each suggesting that public policy supported its position. Neither adequately examined the legal issues. Careful consideration of trespass concepts …

Can The United States Control Its Natural Gas: International Trade Implications Of Restrictions On Liquefied Natural Gas Exports, Adam Eldean

Natural Resources Journal

This article examines the cross-section between energy, environmental, and international law while exploring the recent developments of liquefied natural gas (LNG) exports to non-free trade agreement countries, and considers how international free trade agreements affect efforts to restrict or limit exports of LNG. The article discusses the environmental and economic impacts of large-scale exports of LNG, but argues that efforts to stifle LNG exports will ultimately fail regardless of potential negative impacts due to conflict with existing international trade agreements, including the General Agreement on Tariffs and Trade and the North American Free Trade Agreement. Since approval of export licenses …

Environmental Law Outside The Canon, Todd S. Aagaard

Indiana Law Journal

It is time to rethink the domination of environmental law by a canon of major federal 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 climate; …

Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown

UF Law Faculty Publications

This Article proposes a novel approach to addressing global climate change's impacts on agricultural production and food security. The climate change crisis is the most significant environmental issue facing our planet. The changes predicted to occur as the earth's climate warms include significant impacts to agriculture. At the same time that the planet is undergoing dramatic climatic changes, the global population is increasing, and economic development in many parts of the world is exerting increased demand for a greater and more diverse supply of food.

The relationship between climate change and agriculture is a close and complex one, as the …

Regulating Water And War In Iraq: A Dangerous Dark Side Of New Governance, Tracey Leigh Dowdeswell, Patricia Hania

Indiana Journal of Global Legal Studies

In the legal scholarship, the 'new governance' mode of governance advances an administrative arrangement where decision-making is shared amongst a range of actors, both public and private. The flexible, responsive, and collaborative governance orientation is intended to counter the ill effects of a coercive, top-down, state-centric, command-and-control approach to governance. Critics contend the new governance framework can displace the interests of local communities, disempower individuals, and dislodge basic human rights. The U.S. military has adopted such an adaptive approach in its own governance structure, which in this article is referred to as: the new governance "mentality." This mentality of governance …

Consequences For Cleanup: Epa Gets Serious About Weak Watershed Improvement Plans, Rena I. Steinzor, Anne Havemann

Faculty Scholarship

In a landmark series of reports issued on June 26, 2014, the Environmental Protection Agency (EPA) put the seven jurisdictions that pollute the Chesapeake Bay on notice that their plans for reducing nitrogen, phosphorous, and sediment fall short of where they must be to make cleanup by 2025 a reality. By EPA’s reckoning, Pennsylvania and Delaware were furthest off the mark, but Maryland, New York, Virginia, and West Virginia face EPA action if they fail to substantially improve their plans. Of the seven jurisdictions, only Washington, D.C. escaped serious criticism.

Innovative Financing For Renewable Energy, Richard L. Ottinger, John Bowie

Elisabeth Haub School of Law Faculty Publications

Carbon pollution from fossil-fuel combustion is the largest contributor to climate change worldwide. Renewable energy can materially help to reduce greenhouse gas (GHG) emissions and their principal cause, worldwide dependence on carbon fuels. If our goal is to remain at or below 1990 numbers, then fossil fuels must be phased out of the global energy portfolio.

While other factors such as energy inefficiencies in buildings, appliances and transportation, for example; deforestation, farm animal excretion, pipeline leakage, HFCs for refrigeration, black soot and changes in land use also contribute to increased emissions, finding new, innovative ways to empower people to seize …

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

A Regulatory Comparison Of Hydraulic Fracturing Fluid Disclosure Regimes In The United States, Canada, And Australia, Allan Ingelson, Tina Hunter

Natural Resources Journal

Numerous state, provincial, and federal governments in the United States, Canada, and Australia have created guidelines, legislation, and/or regulations (or are in the process of doing so) in response to public concerns about water contamination from hydraulic fracturing. This article will compare and analyze three national regimes in the leading states and provinces in which laws have been amended, proposed, or adopted to address public concerns about the chemicals and additives in hydraulic fracturing fluids used to produce unconventional hydrocarbons. New regulations, recent legislative amendments, and, in some cases, new statutes have been proposed or adopted in the past few …

Goal-Oriented Disclosure Design For Shale Oil And Gas Development, Kate Konschnik

Natural Resources Journal

States have acted quickly to respond to the public’s demand for information on the chemicals used in hydraulic fracturing. Proponents of these disclosure requirements have relied on a number of policy rationales. However, the resulting disclosure systems may not be achieving stated goals. Ineffective disclosure requirements risk undermining public confidence in the disclosure process and waste an important opportunity to put these disclosures to work. This article suggests using a Goal-Oriented Disclosure Design approach to HFC disclosure, built around the goals for disclosure, the information end users need to target in pursuit of each goal, and the feedback loops those …

Assessing The Scope Of The National Environmental Policy Act: Recent Attempts By Environmentalists To Add Climate Change Considerations Into Nepa Review, Maureen O'Dea Brill

Natural Resources Journal

As the United States continues its roaring ramp up as the world’s leading natural gas producer, the environmental community is trying to force the federal government to account for the aggregate impact of domestic natural gas production from shale, especially in the context of climate change. To achieve this goal, environmental organizations have sought to employ the National Environmental Policy Act (NEPA), a law aimed at increasing government awareness of the broader environmental consequences of federal action. This article explores the two ways in which environmental organizations have tried to expand federal environmental reviews to include climate change considerations under …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project.' The court also decided two cases under the Clean …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim A. Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

Beyond Tax Credits: Smarter Tax Policy For A Cleaner, More Democratic Energy Future, Felix Mormann

Faculty Scholarship

Solar, wind, and other renewable energy technologies have the potential to mitigate climate change, secure America’s energy independence, and create millions of green jobs. In the absence of a price on carbon emissions, however, these long-term benefits will not be realized without near-term policy support for renewables. This Article assesses the efficiency of federal tax incentives for renewables and proposes policy reform to more cost-effectively promote renewable energy through capital markets and crowdfunding.

Federal support for renewable energy projects today comes primarily in the form of tax incentives such as accelerated depreciation and, critically, tax credits. Empirical evidence reveals that …

Garbage Everywhere What Refuse In India's Streets Reveals About America's Hidden Trash Problem, Noah M. Sachs

Law Faculty Publications

In early 2014, I arrived in the southern Indian city of Bangalore, which just two years before had been paralyzed by a garbage-worker strike and a severe shortage of landfill space. The municipal government had responded to public anger over uncollected trash with decrees on waste segregation and composting that went unenforced, and by the time I showed up, not much had changed. In the city that bills itself as India’s Silicon Valley, there are still putrid piles of garbage all around town. Bangaloreans accept open dumps in their neighborhoods as a fixture of the landscape, to be seen but …

Commercial Land Grabs Threaten Global Food Ecosystem, Lauren Carasik

Media Presence

No abstract provided.

Keystone Xl: Reviewability Of Transboundary Permits In The United States, Kathy Parker

Colorado Environmental Law Journal

No abstract provided.

Bracing For The Impending Rocket Revolution: How To Regulate International Environmental Harm Caused By Commercial Space Flight, Jennifer Friedberg

Colorado Environmental Law Journal

No abstract provided.

Slides: What We Know (And Don't Know) About Air Quality Impacts Of Oil And Gas Development, Anna Karion

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Anna Karion, NOAA/ESRL, University of Colorado/CIRES

35 slides

Slides: The Efd Program: Addressing Environmental Issues And Increasing Environmental Awareness, Richard Haut

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Rich Haut, Houston Advanced Research Center

8 slides

Slides: Details Of The Regulatory Framework: Air Quality Regulation Of Oil And Gas Development, Olivia D. Lucas

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Olivia D. Lucas, Esq., Counsel, Faegre Baker Daniels

22 slides

Slides: Regulating Oil And Gas Emissions In The Denver Julesberg Basin, Garry Kaufman

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Garry Kaufman, Deputy Director, Colorado Air Pollution Control Division

25 slides

Slides: The Stronger State Review Process: Draft Air Quality Guideline, Bruce Baizel

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Bruce Baizel, Chair, STRONGER Board

17 slides