Environmental Law Commons^™

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

Scholarly Works

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

Land Use Law Update: New York's New Climate Change Resiliency Law, Sarah Adams-Schoen

Scholarly Works

New York State’s lawmakers passed 2,603 bills over the course of the 2013-14 session, 658 of which passed both houses. Although counties and local governments are likely focusing their attention on budget-related items such as the property tax freeze/rebate program, local governments — and zoning and planning officials and practitioners in particular — should also take note of the newly enacted Community Risk and Resiliency Act (CRRA).

An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald

Faculty Articles and Papers

No abstract provided.

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

Mitigating The Impacts Of The Renewable Energy Gold Rush, Amy Wilson Morris, Jessica Owley

Articles

No abstract provided.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Articles

No abstract provided.

The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold

Indiana Journal of Global Legal Studies

This paper explores representative environmental action in international, European Union, and German environmental law as an example of '7egal translation." The Aarhus Convention, dating from 1998, requests signatory parties to provide environmental NGOs with wide access to justice so that the protection of the environment can be controlled by the judiciary. Both the European Union and Germany have implemented the provisions of the Aarhus Convention into their respective legal orders. This process of implementation can be considered as "legal translations." The argument of this paper is that a perspective of '7egal translation" provides new vistas on the various intertwined layers …

Weathering Nepa Review: Superstorms And Super Slow Urban Recovery, John Travis Marshall

Faculty Publications By Year

Delays in implementing long-term neighborhood housing recovery measures following urban disasters profoundly disrupt a city's revitalization and resurgence. Following recent large-scale urban disasters, some blame the National Environmental Policy Act environmental and historical review requirement for greatly slowing the long-term recovery process. They claim that the National Environmental Policy Act review is ill suited for the exigencies of disasters. Finding effective ways to advance urban disaster recovery as quickly as possible, while not compromising key environmental quality objectives, is a central challenge to implementing effective post-disaster recovery plans. This Article addresses how best to balance necessary regulation with critical disaster …

V.5, 2014 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

San Diego Journal of Climate & Energy Law

This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …

Energy Policy, Extraterritoriality, The Dormant Commerce Clause, Alexandra B. Klass, Elizabeth Henley

San Diego Journal of Climate & Energy Law

This Article will focus specifically on potential challenges to state energy policy based on the “extraterritoriality doctrine” of the dormant Commerce Clause. In doing so, it considers two recent lawsuits involving dormant Commerce Clause challenges to state energy policy. The first is the lawsuit against the State of California over its Low Carbon Fuels Standard (LCFS) program on grounds that it discriminates against Midwest ethanol producers in favor of California ethanol producers and regulates extraterritorially in violation of the dormant Commerce Clause. The second is the lawsuit by the State of North Dakota, the North Dakota lignite coal industry, and …

She Sells Seawalls Down By The Seashore, Tricia Lee

San Diego Journal of Climate & Energy Law

This Comment argues that a bill similar to Assembly Bill 2943 should be proposed today because there has been a drastic shift towards a general acceptance of global warming since 2002. In addition, new environmental studies support the idea of curbing seawall construction along the California coast.

Section I will provide data regarding rising sea levels and the current state of seawall construction along the California coast. It will then explain why seawall construction is not a viable adaptation strategy and delve into its negative social, environmental, and economic impacts.

Section II will examine California’s current policies for protecting coastal …

Energy Versus Property, Michael Pappas

Faculty Scholarship

This article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing (“fracking”), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The article then applies this insight to current disputes pitting aggressive renewable energy policies— such as nuisance immunity or mandatory installations on private property— against fundamental property expectations— the right to exclude and the right to …

Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival

Faculty Scholarship

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Presidential Power To Address Climate Change In An Era Of Legislative Gridlock, Robert V. Percival

Faculty Scholarship

No abstract provided.

Illusion Of School Choice Leaves Chicago Pupils With No Choice, Elise Robie

Public Interest Law Reporter

School choice ostensibly empowers parents and students to have control over their education. However, despite the facade of school choice in Illinois, in reality parents and students effectively have little to no school choice, especially in the City of Chicago. The presence of charter schools overpowers traditional public schools, and without a solid voucher system parents do not have valid control over their children's education. Parental involvement in a child's education plays a crucial role in a child's success, and lack of genuine school choice stymies parental involvement and control.

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Faculty Articles

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

Health Law As Social Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and …

The Role Of Civil Society In Environmental Governance In The United States And China, Robert V. Percival, Zhao Huiyu

Faculty Scholarship

No abstract provided.

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Kingswood Lake Management Plan, Sarah Martina Tierney

Honors Theses and Capstones

High water quality and natural buffers exist on Kingswood Lake located in Brookfield, New Hampshire. A comprehensive lakes inventory (CSI) was recorded and health of the land, wildlife, and waterways were observed. Educational outreach was taken to inform the local community and to instruct them on proper stewardship of the land. A completed watershed management plan was constructed including key recommendation of limiting nitrogen loading in the area, checking septic systems for leaching, stabilizing shoreline from erosion, and establishing man-made rain gardens to help preserve water quality. The Kingswood watershed management plan acts as a guide for the town of …

Coal And Commerce: Local Review Of The Gateway Pacific Coal Terminal, Henry W. Mcgee, David A. Bricklin, Bryan Telegin

Faculty Articles

This article examines the potential constitutional law issues involved in local review of the proposed coal terminals. It explores these issues in the specific context of Whatcom County's review of the Gateway Pacific Terminal. Part II provides a brief overview of the history of the Gateway Pacific terminal. Part III explores issues associated with the facility under the dormant Commerce Clause. Finally, this article concludes that there are few serious issues associated with Whatcom County's review of the proposal that would violate the dormant Commerce Clause. Moreover, Whatcom County will have a great deal of authority to approve or deny …

Endangered Species Act Listings And Climate Change: Avoiding The Elephant In The Room, Michael C. Blumm, Kya B. Marienfeld

Animal Law Review

The Endangered Species Act (ESA), with its reputation as the nation’s strongest environmental law, might be expected to impose some limits on greenhouse gas (GHG) emissions adversely affecting listed species due to rising global temperatures. Although the federal government recently conceded that some species warrant listing because of climate change, the accompanying listing decisions revealed a federal refusal to apply the ESA to constrain GHG emissions. In this Article, we explain those decisions—involving the American pika, the polar bear, the wolverine, and the Gunnison sage-grouse—and their implications. We conclude with some surprising observations about the Obama Administration’s apparent endorsement of …

The Lizard, The Scientist, & The Lawmaker: An Analysis Of The Trending Fight Over The Use Of Science Under The Endangered Species Act And How To Address It, Brie D. Sherwin

Animal Law Review

Recently in Texas, the dunes sagebrush lizard—a tiny, little-known reptile living in the sparse brush and dunes of the oil and gas fields—sparked a heated discussion and criticism over the listing process under the Endangered Species Act (ESA). This six-year battle ended with the withdrawal of a proposed rule to list the lizard and resulted in numerous criticisms about the role and use of scientific data throughout the process. Under the ESA, the United States Fish & Wildlife Service (FWS) is required to consider the best available scientific data when deciding whether to list a species. However, there is no …

You Don't Own Me: Feral Dogs And The Question Of Ownership, Stacy A. Nowicki

Animal Law Review

Feral dogs occupy an ambiguous position, challenging standard categories of domestication, wildness, and property ownership. This ambiguity, in turn, complicates the legal status of feral dogs. Feral dogs' property status is particularly critical, as whether a feral dog is owned by someone, or no one at all, hold implications not only for civil and criminal liability in incidents involving feral dogs, but also the legal ability of animal rescue organizations to intervene in the lives of feral dogs. Part II of this Article summarizes the application of property law to ani­mals, particularly highlighting the role played by an animal's status …

A Strategy To Protect Virginians From Toxic Chemicals, Noah M. Sachs

Law Faculty Publications

This report is divided into two main parts. Part I of this report details the major sources of toxic chemical releases in Virginia. Part II then discusses our recommendations in more detail, outlining a series of reforms that would help the Commonwealth police and reduce the risks from toxic chemicals.

How The Supreme Court Uses The Certiorari Process In The Ninth Circuit To Further Its Pro-Business Agenda: A Strange Pas De Deux With An Unfortunate Coda, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court's certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In …