Environmental Law Commons^™

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

Entrepreneurial Administration, Philip J. Weiser

Publications

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a …

The Environmentalist Case For Sprawl- And Why It Fails, Michael Lewyn

Scholarly Works

Environmentalists generally favor compact, walkable development, because development that reduces automobile use may reduce automobile-related pollution. Defenders of suburban sprawl argue, however, that compact development may actually increase pollution in a variety of ways. This article criticizes the latter argument.,

Using The Federal Public Trust Doctrine To Fill Gaps In The Legal Systems Protecting Migrating Wildlife From The Effects Of Climate Change, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Not unlike before the biblical flood, the world stands on the brink of catastrophe awaiting rescue by a virtual ark. The most vulnerable to this looming catastrophe are the world’s wildlife. Changes in global temperature and precipitation as well as sea level rise and acidification of the ocean are already affecting wildlife by limiting the availability and quality of habitat and the abundance of prey, and by increasing predation and disease. Sea level rise and unstable storm patterns threaten coastal wildlife, while changing precipitation and temperature patterns are drying out habitat, making some habitat more susceptible to wildfires, and other …

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

Increasing Gasoline Octane Levels To Reduce Vehicle Emissions: A Review Of Federal And State Authority, Romany M. Webb

Sabin Center for Climate Change Law

This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action …

From Top-Down To Bottom-Up Climate Policy: New Challenges In Carbon Market Design, Jonas Monast

San Diego Journal of Climate & Energy Law

This Article explores the shift from top-down to bottom-up approaches to carbon market design, focusing on three strategies that have emerged since 2009: the California Cap-and-Trade Program, the Clean Power Plan, and the UNFCCC process. The Article then examines the prospects for broad multilateral markets to emerge under a bottom-up approach and identifies three pathways to streamline market design choices: a coordinated approach; a dominant actor approach; and a common elements approach.

Enter Sandman: The Viability Of Environmental Personhood To Us Soil Conservation Efforts, Thomas E. Johnson

Vanderbilt Journal of Entertainment & Technology Law

The US agricultural system relies on healthy soil for economic and environmental stability. The federal government established soil conservation efforts following the Dust Bowl, and state and local entities later developed legal tools to supplement soil conservation. These efforts, however, are insufficient to protect the nation's soil in the face of a changing climate. Conservation techniques are available that could substantially mitigate the effects of climate change, but the federal government lacks the tools to encourage their uniform adoption. The rigidity of prior state efforts, moreover, has disabled some landowners from adapting conservation lands to modern challenges. This Note recommends …

Environmental Impacts Of The Border Wall, Sarah Krakoff, Dan Millis, Andy Gordon, Sarah Burt

Publications

On January 25, 2017, during his first week in office, President Donald Trump signed an Executive Order calling for the “immediate construction of a physical wall on the southern border” of the United States. Such a wall would span more than one thousand miles, across many different habitats and many different communities. Before a wall will be built, numerous questions must be answered: Which environmental laws apply? How might all this work? On February 16, ELI convened experts to discuss how environmental law and policy may interact with the Executive Order, and to spark discussion about important environmental resources and …

The Former Asarco Demolition Fallout, A Post Study On Lead Soil Concentrations And Environmental Agents Of Redistribution In El Paso, Texas, Stephanie A. Robinson

Open Access Theses & Dissertations

The former El Paso ASARCO Smelting and Refining Co. operated between 1877 and 1999, the pyrometallurgic activity was estimated to have discharged excess of a 1,000 tons of lead (Pb) into the atmosphere from 1969-71. It was estimated 96 tons of (Pb) were emitted on an annual basis from the standing ore and fluid beds. The Environmental Protection Agency (EPA) determined that lead (Pb) is the heavy metal of the highest concentration within the vicinity of the smelter. After the smelter production ceased, flash flooding common to the southwest, such as the 2006 historic flood, increased transportation of superficial contaminants …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Solar Climate Engineering And Intellectual Property: Toward A Research Commons, Jesse Reynolds, Jorge L. Contreras, Joshua D. Sarnoff

Minnesota Journal of Law, Science & Technology

No abstract provided.

Clean Electrification, Shelley Welton

University of Colorado Law Review

To combat climate change, many leading states have adopted the aim of creating a "participatory"g rid. In this new model, electricity is priced based on time of consumption and carbon content, and consumers are encouraged to adjust their behavior and adopt new technologies to maintain affordable electricity. Although a more participatory grid is an important component of lowering greenhouse gas emissions, it also raises a new problem of clean energy justice: utilities and consumer advocates claim that such policies unjustly benefit the rich at the expense of the poor, given the type of consumer best able to participate in the …

The Colorado River Revisited, Jason Anthony Robison

University of Colorado Law Review

Fifty years ago, former Stanford Law School Dean Charles Meyers published The Colorado River, 19 STAN. L. REV. 1 (1966), arguably the most famous piece of legal scholarship ever written on this vital water source and the complex body of laws governing its flows-colloquially, the "Law of the River." That piece and a companion, The Colorado River: The Treaty with Mexico, 19 STAN. L. REV. 367 (1967), offered seminal accounts of the legal histories, doctrinal features, and unresolved perplexities of the Law of the River's international and interstate allocation framework. Five decades later, between thirty-five and forty million U.S. residents …

Pride And Prejudice And Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, And State Exceptionalism Failed Flint, Michigan, Brie D. Sherwin

University of Colorado Law Review

It was just over forty years ago, shortly before the Safe Drinking Water Act was passed, that a group of mothers in the small, sleepy town of Woburn, Massachusetts realized there just may have been a connection between their children's leukemia and the town's water supply. They withstood the terrible smell and masked the water's rancid flavor with orange juice. For months they inquired, complained, and assembled in hopes that someone in a position of authority would notice what was so obvious to them. And for months they were dismissed and even ridiculed. Turns out they were right. It took …

Using Crisis Negotiation Team Methods To Decrease Violence In Prisons, Emily Katz

Cardozo Journal of Conflict Resolution

Part I of this Note introduces the Crisis Negotiation Teams and explains when, how, and why they were formed. Part I also discusses what factors ultimately lead teams to successful and safe negotiations. Part II discusses the current structure in place in today's prisons and the consequences prison experiences have on the inmates. Additionally, Part II discusses prison guard training, as well as the effects this training is having on both inmates and guards alike. Part III offers some suggestions on how to fix issues within prisons, specifically the guard and inmate relationship, by using procedures currently in use by …

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

Abstract Forthcoming.

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

Green Home Standards: Information And Incentives, James Smith

Scholarly Works

The “green building” movement began in the United States during the 1990s. In its early stages, reformers focused on minimizing adverse environmental impacts from major public, institutional, and commercial buildings. Private-sector organizations developed voluntary standards to promote green building practices, the most prominent being LEED (Leadership in Energy and Environmental Design). More recently, widespread interest in residential green building has developed. Several organizations having developed voluntary green home standards. A standard promulgated by the federal government, the Energy Star Certified Home, has achieved substantial market success during the past decade. This article describes and assesses the Energy Star Home and …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2016, the United States Court of Appeals for the Eleventh Circuit addressed, for the second time, whether the Army Corps of Engineers (Corps) acted arbitrarily when it issued Nationwide Permit 21 (NWP 21), which authorizes dredge and fill activities by surface mining operations and applies differing standards to grandfathered operations and new operations. The court held that the Corps did not, and it upheld the permit. Also, the Eleventh Circuit held that the National Park Service did not act improperly under the Wilderness Act when it reduced the number of acres it considered to be eligible for designation as …

The Political Water Web Of The United States, Omar Hammad

Dissertations and Theses

The United States’ water systems are interstate in their nature; these systems are governed by Congressional compact agreements. Water compacts have been influenced by common factors that have reverberated throughout the water-web of the country. These impacts varied in their scale, national level federal regulations, such as the Endangered Species Act of 1973, and recent concerns about climate change are macro-scale influences. Localized drivers such as regional economics and population change are localized impacts. While these concepts and issues influence water compacts as a whole, their impacts occur at different periods, albeit for the same reason. As such, we see …

Nova Scotia's Cap & Trade System: A Modest Proposal, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The government of Nova Scotia has just released a discussion paper on its proposed Cap and Trade (C&T) System for provincial GHG emission reductions. The C&T system is a key component of Nova Scotia’s contribution to Canada’s overall effort to implement the Paris Climate Agreement in line with the Pan Canadian Framework on Climate Change. This article summarizes the key elements of the proposed system, identified shortcomings and proposes a way forward for Nova Scotia.

Ea Expert Panel Report: A Preliminary Assessment Of Canada's Proposed New Federal Assessment Process, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The paper offers an overview and assessment of the key recommendations of the EA Expert Panel's report on the reform of the federal environmental assessment process in Canada. The paper covers the proposed application of the process, the process and institutions, the proposed approach to jurisdictional cooperation, the scope, the role of regional and strategic assessments, public participation, the role of indigenous peoples, and follow up and compliance. The paper concludes that the report offers a very useful blueprint for reform, but that many details have yet to be worked out.

The Paris Climate Agreement – Assessment Of Strengths And Weaknesses, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper provides an overview of the core elements of the Paris Climate Agreement and offers an assessment of its key strength and weaknesses. The paper concludes with thoughts on what is required for its effective implementation.

The Lower Churchill Panel Review: Sustainability Assessment Under Legislative Constraints, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper reviews the experience of applying a sustainability framework in the assessment of the Lower Churchill Hydroelectric project in Labrador, Canada. In it's 2011 report, the Joint Review Panel proposed a decision-making framework for determining whether and how the project would make a net contribution to sustainability. In its framework, the panel considered the distribution of environmental, social, and economic impacts, benefits, risks and uncertainties.

Ea Expert Panel Report: Reflections On Canada's Proposed Next Generation Assessment Process, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

In this paper, we share our preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017. The report is the result of an open and thorough public engagement process that heard from a large number of Canadians with a keen interest in EA. The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment. Some elements will require further thought, and much of the critical detail …

Looking Up, Down, And Sideways: Reconceiving Cumulative Effects Assessment As A Mindset, A. John Sinclair, Meinhard Doelle, Peter Duinker

Articles, Book Chapters, & Popular Press

Despite all the effort that has gone into defining, researching and establishing best practices for cumulative effects assessment (CEA), understanding remains weak and practice wanting. At one extreme of implementation, CEA can be described as merely an irritant to the completion of a project-specific environmental assessment (EA). At the other extreme, the conceptual view is that all effects in EA should be deemed cumulative unless demonstrated otherwise. Our purpose here is to consider how we might reconceive CEA as a mindset that is at the heart of absolutely every assessment of valued ecosystem component (VEC) to ensure that we understand …

From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle

Articles, Book Chapters, & Popular Press

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …

Revisiting Transnational Corporations And Extractive Industries: Climate Justice, Feminism, And State Sovereignty, Sara Seck

Articles, Book Chapters, & Popular Press

This Article explicitly examines the relationship between climate justice, gender, and transnational fossil fuel extractive industries by drawing upon feminist theoretical insights. First, I provide an overview of the differential impacts of climate change on women and briefly review insights from select international legal scholars who have considered gender and climate change. Second, I describe the Philippines climate petition, a novel attempt to seek an investigation into the accountability of transnational fossil fuel companies for climate harms. Third, I examine three sets of issues arising in the Philippines climate petition and draw explicitly upon Karen Knop’s Re/Statements: Feminism and State …