Environmental Law Commons^™

Follow The Leader: Eliminating Perverse Global Fishing Subsidies Through Unilateral Domestic Trade Measures, Anastasia Telesetsky

Maine Law Review

Perverse subsidies including fuel tax rebates lead to overfishing though a combination of overcapacity and excess fishing effort. The current overfishing trend has depleted certain key commercial fisheries with implications for future food security, particularly in regions dependent on fish protein. Over the course of the past four decades, there have been a number of multilateral efforts to eliminate the subsidies including environmental treaties, environmental targets, and trade negotiations. None of these attempts and a global cooperative response have achieved a reduction in perverse subsidies. This Essay proposes the adoption of unilateral trade measures or a set of “Friends of …

The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke

Maine Law Review

As the local food movement gains critical mass around the country, deep and important issues concerning food system policy arise. The modern American food system spans from agricultural production to food processing to food consumption, and finally, to health outcomes. The system’s components include economic, environmental, social, political, and scientific aspects that interact in ways that far outstrip any one discipline’s capacity to analyze and resolve problems. Additionally, the system is profoundly shaped by a complex architecture of laws and regulation. With much credit to the local and regional food movements, people have begun to question not only the current …

The Renewable Fuel Standard: Food Versus Fuel?, Brent J. Hartman

Maine Law Review

Created by the Energy Act of 2005 and substantially amended by the Energy Independence and Security Act of 2007, the Renewable Fuel Standard (RFS) mandates an increasing amount of fuel from renewable sources that must be blended into the transportation fuel supply of the United States. Starting in 2008, RFS began with a mandated volume of nine billion gallons. By 2002, RFS requires blending 36 billion gallons of renewable fuel. Thus, in a little over a decade, RFS requires the amount of renewable fuel to quadruple. Meeting the targets of RFS would make substantial strides in energy security and independence, …

From " Food Miles" To "Moneyball": How We Should Be Thinking About Food And Climate, Bret C. Birdsong

Maine Law Review

Since Michael Pollan polarized the push to eat local food in his bestseller, The Omnivore’s Dilemma, the concept of “food miles” has been something of a rallying cry and an organizing principle in the marketing of the local food movement. Among locavores and their sympathizers, the term seems to encapsulate all that is wrong with the food system. Fresh grapes from Chile make their way to supermarkets from Maine to Minnesota, and even California. Major food conglomerates process commodity ingredients like corn, soy, and wheat into packaged food that travels across the country and across oceans before landing on a …

Legal Institutions Of Farmland Succession: Implications For Sustainable Food Systems, Jamie Baxter

Maine Law Review

The legal institutions relevant to farmland succession—defined as the transfer of property in and control over farmland—are increasingly important determinants of sustainable environmental outcomes on modern farms. The history of farmland succession has been written, by and large, through extra-legal processes of transfer and inheritance between generations of close family relations. This familiar “family farm” model, however, is rapidly being replaced by succession arrangements between non-relatives, often strangers, with entrant farmers from non-agricultural backgrounds. As a growing number of current farmers retire and seek creative ways to transfer control and ownership of their farms, the availability and content of property …

Growth And Legal Implications Of Energy Storage Technologies, Chaunceton B. Bird

Utah OnLaw: The Utah Law Review Online Supplement

The energy storage industry is growing at burgeoning rates. New technologies are lowering the cost and improving the efficiency of energy storage devices. But with widespread adoption comes a myriad of legal issues. When states are creating their own legal frameworks to encourage or discourage investment in energy storage, the industry is hampered by inconsistency and a lack of predictability. By implementing broad federal regulations, the federal government can remove uncertainty and encourage growth and development of energy storage technologies. Thanks to companies like Tesla who are making energy storage more appealing and affordable, demand for behind-the-meter energy storage is …

United States V. Barthelmess Ranch Corp., Jonah P. Brown

Public Land & Resources Law Review

Application of water to a beneficial use is the decisive element of a perfected water right in Montana. The BLM claimed rights to five reservoirs and one natural pothole under Montana law. The agency did not own livestock, but instead made the water available to grazing permittees. In United States v. Barthelmess Ranch Corp., the Montana Supreme Court affirmed the Montana Water Court’s holding that the BLM’s practice of making water available to others constituted a beneficial use and a perfected water right.

Ohio Valley Environmental Coalition V. Fola Coal Company, Llc, Emily A. Slike

Public Land & Resources Law Review

Disregarding CWA regulations, WVDEP allowed for a state coal mining company, Fola, to discharge pollutants into the Stillhouse Branch without regard for water quality violations. Fola claimed that because it held a WV/NPDES permit, it was shielded from any liability so long as the company followed the permit’s provisions, even if its discharge violated CWA water quality standards.

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land & Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.

Lights Out: Decommissioning The American Nuclear Plant, Joseph D. Mcmanus

Journal of the National Association of Administrative Law Judiciary

This article seeks to examine the United States commercial nuclear power plant decommissioning process, a look into a subject that begins at the end of a nuclear plant's life. The subject is often overlooked in favor of the more dominant and controversial issue of when and where a federal spent nuclear fuel repository will be established. But to overlook the American nuclear plant decommissioning process would be a missed opportunity to understand what happens after a nuclear plant permanently ceases power operations-a process that has the potential to last decades and affect the plant's local community through economic and environmental …

Litz V. Maryland Department Of The Environment: Maryland’S Decision That Inaction Can Support An Inverse Condemnation Claim, Kerri Morrison

Maryland Law Review Online

No abstract provided.

Earthreports, Inc. V. Ferc, Caitlin Buzzas

Public Land & Resources Law Review

In EarthReports, Inc. v. FERC the Court ruled that when a state challenges a liquefied natural gas (“LNG”) export project, this should target the Department of Energy, not the Federal Energy Regulatory Commission.

A Blast From The Past: Seismic Airgun Policy And The Need For Reform, Janaye Garrett

Florida State University Law Review

No abstract provided.

Harnessing Energy Markets To Conserve Natural Resources? The Case Of Southern U.S. Forests, Blake Hudson

Florida State University Law Review

Wood pellet production facilities have spread rapidly across the southeastern United States over the last decade, a market driven largely by electricity generators in Europe converting from coal-fired to wood pellet-fired boilers. This has raised concerns that non-timber values of southern U.S. forests are at risk and that CO2 emissions from burning carbon-based products will continue to exacerbate climate change. One element left out of the analysis regarding whether wood pellet market development is a net environmental positive or negative, however, is the likelihood that forestland will be converted to non-forest uses if Southern landowners do not have adequate markets …

The Military-Environmental Complex And The Courts: Comment To Sarah Light, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

The Environmental Paris-Ite: The Current And Potential Impacts Of The Paris Agreement On Sustainable Finance And The Global Market, Caitlin Boelsen

Independent Study Project (ISP) Collection

Since the passing of the Paris Agreement in December of 2015, organizations in relation to sustainable finance have received fresh attention. The purpose of this study revolves around this new legislation and the financial, environmental, political and social impacts it has had on the market and on sustainable finance. It also analyzes the future potential of carbon markets and renewable energy under the environmental pressure produced by the Paris Agreement. The underlying objective is to confirm whether or not the Paris Agreement has made substantial progress in the fight against climate change. This research is a blend of field research …

Pace Energy & Climate Center 2016 Annual Report, Pace Energy & Climate Center

Environmental Law Program Publications @ Haub Law

The Center staff and many allies are deeply involved in the business of electric utility transformation. We live and work in a remarkable time. Decades of steady, thoughtful leadership on clean energy issues is now bearing fruit. Clean energy is not just the right thing to do, it is increasingly recognized as the right choice economically, technically, and for all members of society. Our work, especially in 2016, has been about making sure that we seize the moment and secure the benefits of clean energy use for all communities in New York, the Northeast U.S., across the country, and throughout …

Eating Is Not Political Action, Joshua Ulan Galperin, Graham Downey, D. Lee Miller

Elisabeth Haub School of Law Faculty Publications

Food and environment are cultural stalwarts. Picture the red barn and solitary farmer toiling over fruited plains; or purple mountains majesty reflected in pristine waters. Agriculture and environment are core, distinct, American mythologies that we know are more intertwined than our stories reveal.

To create policy at the interface of such centrally important and overlapping American ideals, there are two options. Passive governance fosters markets in which participants make individual choices that aggregate into inadvertent collective action. In contrast, assertive governance allows the public, mediated through elected officials, to enact intentional, goal oriented policy.

American mythologies of food and environment …

Public Energy, Shelley Welton

Faculty Publications

Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state counterparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate …

The Long Shadow Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Judicial Review For The Public Lands: Comment To Eric Biber, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Going In Cerclas: The Evolution Of Arranger Liability And The Not-So-Useful Useful Product Doctrine, Martha Clarke

Northwestern University Law Review

Since the Supreme Court decision Burlington Northern & Santa Fe Railway Co. v. United States, courts have wrestled with what it means to be an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). One aspect of arranger liability that has undergone radical change in the past decade is the useful product doctrine, which allows a party to escape arranger liability by proving it was selling a useful product rather than arranging for disposal.

Prior to Burlington Northern, courts applied the useful product doctrine restrictively, only allowing parties selling virgin products to escape liability and imposing …

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

Supreme Court Strips States Of Their Power Over The World's Second Most Important Technology, Steven Ferrey

Suffolk University Law School Faculty Works

The Supreme Court recently stripped 47 or the 50 the states of legal power that the states thought that they possessed over power. The Court re-etched in great relief the most important “bright line” in American law. This article analyzes every important step of how the Supreme Court arrived at the legal point to reset the architecture of American power and did so through a unanimous decision. The article charts key implications for U.S. law going forward.

Recent other decisions issued by the 2nd, 3rd, 4th, 7th, 8th, and D.C. Circuit Courts of Appeals — a majority of circuits — …

The Elephant In The Room Or The Elephant In The Mousehole? The Legal Risks (And Promise) Of Climate Policy Under §115 Of The Clean Air Act, Nathan Richardson

Faculty Publications

Climate policy in the United States is near an inflection point. With Congress uninterested in new legislation, focus at the federal level for most of the last decade has been on the Clean Air Act, but whether regulation under that old statute can successfully address carbon emissions remains unclear. Under President Obama, the EPA has focused on two core programs-vehicle emissions standards and the Clean Power Plan, aimed at fossil fuel power plants. But with the latter of these programs under legal challenge, and both falling short of the flexible, economy-wide policy many believe is necessay, academic and policy attention …

Autonomy In The Anthropocene? Libertarianism, Liberalism And The Legal Theory Of Environmental Regulation, Jason Maclean

Dalhousie Law Journal

Can there be autonomy in the Anthropocene? Libertarian environmental law scholar Bruce Pardy's Ecolawgic: The Logic of Ecosystems and the Rule of Law argues that contemporary environmental law violates the right to autonomy and runs afoul of the rule of law. Pardyproposes an alternative model ofenvironmental law premised on the logic of ecosystems and free markets. Pardy's Ecolawgic suffers, however from the very same conceptual infirmities that substantially undermine the real-world application of the free market paradigm on which Ecolawgic is largely based. Notwithstanding this critical flaw, Ecolawgic may be read as an aspirational model of environmental law and policy …

Could Foreign Judicial Climate Action Victories Influence American Legal Perspectives?, Marc Z. Goldgrub

Cardozo Journal of International and Comparative Law

The note examines the growing influence of foreign court decisions on U.S. climate change litigation, highlighting both the opportunities and challenges this trend presents. It argues that while foreign precedents provide valuable legal frameworks and persuasive authority, their direct application in U.S. courts is limited by differences in legal systems and the need for domestic tailoring. The analysis emphasizes the potential of international agreements like the Paris Agreement and foreign rulings, such as those in Urgenda and Juliana, to shape U.S. climate policy and judicial outcomes, particularly through the public trust doctrine and state constitutional rights.

The Wealth In Waste: America's Ability To Enter The Waste To Energy Market By Embracing European Landfill Diversion, Waste Framework, And Renewable Energy Laws And Waste To Energy Initiatives, Emilio Lamanna

Cardozo Journal of International and Comparative Law

The note argues that the United States should adopt European Union (EU) strategies for waste management, particularly landfill diversion and waste-to-energy (WtE) technologies, to address its significant environmental and economic challenges. The EU's success in reducing landfill use and increasing renewable energy production through directives and portfolio standards serves as a model for the U.S. The author proposes that the U.S. implement a Municipal Solid Waste (MSW) Portfolio Standard and a national Renewable Energy Portfolio Standard (RPS) to promote WtE and reduce reliance on landfills.

Hey New York, You Can Frack: An Examination Of How Liquefied Petroleum Gas Sidesteps New York’S Fracking Ban To Provide A Legal And Practical Approach For Horizontal Drilling In New York’S Marcellus Shale, Kelsey L. Hanson

Buffalo Law Review

No abstract provided.

Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner

Michigan Journal of Environmental & Administrative Law

Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description of environmental …