Environmental Law Commons^™

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

A Call To Action For New Yorkers, Jeffrey Gracer, Michael Mahoney

Sabin Center for Climate Change Law

President Donald Trump's announcement last week that he will begin the process of withdrawing the United States from the Paris Climate Change Agreement is a deeply disappointing decision, one that jeopardizes the future of the planet and cedes U.S. leadership on international climate action.

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project …

I Beg To Differ: Taking Account Of National Circumstances Under The Paris Agreement, The Icao Market-Based Measure, And The Montreal Protocol’S Hfc Amendment, Susan Biniaz

Sabin Center for Climate Change Law

This paper explores the different ways in which negotiators to three recent environmental instruments accounted for different national circumstances in formulating commitments and other aspects of cooperation in the instruments. The author finds that the negotiators of these instruments have significantly expanded the arsenal of differentiation tools based on considerations pertaining to logic, fairness, limited capacity, and negotiating leverage.

Predicting Stream Vulnerability To Urbanization Stress With Bayesian Network Mode, Dave Owen, Kristen K. Weil, Christopher S. Cronen, Spencer R. Meyer, Robert J. Lilieholm, Thomas J. Danielson, Leonidas Tsomides

Faculty Scholarship

No abstract provided.

Takings, Torts, And Background Principles, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

An Empirical Study Of The Impact Of The Renewable Fuel Standard (Rfs) On The Production Of Fuel Ethanol In The U.S., Jay P. Kesan, Hsiao-Shan Yang, Isabel F. Peres

Utah Law Review

The Renewable Fuel Standard (RFS) program, which mandates the commercialization of biofuels through 2022, is the United States’ most significant piece of legislation regarding renewable energy. It was first passed in 2005 and revised and expanded in 2007 in order to create a viable market for biofuels based on the policy goals of enhancing domestic U.S. energy security, reducing transportation-related greenhouse gas (GHG) emissions, and stimulating rural economic development.

The RFS requires minimum levels of consumption for different kinds of biofuels and requires increasing blending amounts of biofuels into gasoline and diesel fuels by producers and importers each year. Mandates …

How Existing Environmental Laws Respond To Climate Change And Its Mitigation, Justin Gundlach

Sabin Center for Climate Change Law

Existing environmental laws interact with public health priorities and with aspects of the changing climate in numerous and varied ways. This chapter does not attempt to catalogue those interactions, but instead focuses on two that are especially important and illustrative of the operation and limitations of existing environmental laws vis-à-vis climate change-driven challenges. The first interaction is between pollution levels boosted by climate change and pollution control laws that employ health-based standards to determine pollution limits. The second is between a wider array of existing laws and the effects of climate change mitigation measures on public health. Examining these interactions …

The Legal Climate On Climate Change: The Fate Of The Epa's Clean Power Plan After Michigan And Uarg, Israel Katz

Brooklyn Journal of Corporate, Financial & Commercial Law

One of the centerpieces of the United States’ effort to combat climate change is the Environmental Protection Agency’s (EPA) controversial Clean Power Plan, which consists of the first-ever federal regulations requiring states to achieve massive carbon dioxide emissions reductions from existing fossil fuel-fired power plants. The regulations operate by setting interim and final emissions target dates for states to ultimately reach an aggregate 32% reduction in carbon emissions by the year 2030. This Note argues that the current regulations will not survive judicial scrutiny, because the U.S. Supreme Court has moved away from traditional administrative deference in instances where an …

Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond

Vanderbilt Law School Faculty Publications

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …

Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass

Vanderbilt Law School Faculty Publications

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that …

The Role Of Law In Adaptive Governance, J.B. Ruhl, Barbara A. Cosens, Robin K. Craig, Shana L. Hirsch

Vanderbilt Law School Faculty Publications

The term “governance” encompasses both governmental and nongovernmental participation in collective choice and action. Law dictates the structure, boundaries, rules, and processes within which governmental action takes place, and in doing so becomes one of the focal points for analysis of barriers to adaptation as the effects of climate change are felt. Adaptive governance must therefore contemplate a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments of many democracies. Nevertheless, over time, law itself has proven highly adaptive in western systems of government, evolving to address and even facilitate the emergence …

A Bird In The Hand: Shotguns, Deadly Oil Pits, Cute Kittens, And The Migratory Bird Treaty Act, Samuel J. Panarella

Faculty Law Review Articles

This Article is presented in three parts. Part I describes the modern application (and misapplication) of the MBTA and briefly sets out the history of the Act, including the widespread, indiscriminate killing of migratory birds for food and fashion in the 19th century that first spurred Congress to act. Building off this history and the clear Congressional intent behind the MBTA to criminalize industrial activities directed at killing birds, Part II sorts human-caused bird killing activities into three categories and proposes the appropriate MBTA liability treatment for each category based both on the original purpose of the Act and on …

Accumulating Risk: Environmental Justice And The History Of Capitalism In Detroit, 1880-2015, Josiah John Rector

Wayne State University Dissertations

This dissertation is an environmental history of Detroit, Michigan from the 19th century to the present. Recent scholarship on the history of capitalism has largely ignored the problem of environmental inequality, and the negative externalities of economic growth. In contrast, studies of the environmental justice movement have richly documented race, class, and gender inequalities in environmental risk exposure. However, they have neglected the relationship between the development of the environmental justice movement and the restructuring of American capitalism since the 1970s, including deindustrialization and the shift to neoliberalism. Bringing these fields together, this dissertation connects Detroit’s long-term economic transformation to …

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Scholarship@WashULaw

Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes, comingling of prosecutorial and adjudicatory functions, ex parte communications, and improper political influence. Where bias occurs, it can significantly impact the implementation and enforcement of environmental laws. Biased proceedings can undermine the goals of environmental laws by causing prejudiced decisions not grounded in law or fact, ultimately harming public health and the environment. The …

Business Responsibilities For Human Rights And Climate Change - A Contribution To The Work Of The Study Group On Business And Human Rights Of The International Law Association, Sara L. Seck

Reports & Public Policy Documents

This contribution to the work of the International Law Association’s Study Group on Business and Human Rights considers the relationship between business responsibilities for human rights and climate change. While it is now widely accepted that the adverse effects of climate change undermine the enjoyment of human rights, and that businesses have a responsibility to respect human rights, the relationship between business responsibilities for human rights and climate change is unclear. This paper first considers state duties to protect human rights from climate change harms, including harms arising from business activities, and second, considers how the business responsibility to respect …

Paris, Panels, And Protectionism: Matching Us Rhetoric With Reality To Save The Planet, Abbey Stemler, Scott Shackelford, Eric Richards

Vanderbilt Journal of Entertainment & Technology Law

US rhetoric has not matched reality in the free trade or sustainability contexts, as may be seen by the ongoing debates surrounding a range of behaviors that violate international trade rules. The US government's failure to adhere to the rules that it was instrumental in crafting sets a particularly troubling precedent. These trade distortions reduce trust and respect among countries and undermine efforts to combat climate change. Simultaneously, we are witnessing a growing preference for "minilateral" agreements, as may be seen in the Obama Administration's push for the Trans-Pacific Partnership and US-EU Trade Pact. This trend is likely to continue …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Governmental Tort Liability For Disclosure Of Flood Hazard Information (Legal Fact Sheet Ctsg-17-04), Audrey Elzerman

Sea Grant Law Fellow Publications

Local governments and governmental entities, their employees, and members of their boards and commissions may be subjected to lawsuits in connection with municipal activities.This fact sheet reviews claims that may arise against them under tort law for negligence related to coastal management actions.

Tx Rice V. Denbury., Thomas Alan Zabel

St. Mary's Law Journal

Abstract Forthcoming.

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

The Epa’S Endangerment Finding On Aircraft Greenhouse Gas Emissions: A Preliminary Analysis, Katherine A. Bechina, John C. Nettels, Brett A. Shanks

Journal of Air Law and Commerce

No abstract provided.

Book Review, The Electric Battery: Charging Forward To A Low-Carbon Future, Joel Eisen

Law Faculty Publications

The Electric Battery is the product of a Vermont Law School team led by Kevin Jones, the school’s Director of the Institute for Energy and the Environment. It is an essential resource for scholars, policymakers and others interested in the future for storage technologies in transportation and electricity, the sectors of the economy that produce the most greenhouse gases. Professor Jones brings considerable expertise to the project, having produced well-regarded reports on smart grid issues, and some projects mentioned in the book – such as the partnership between Tesla and Green Mountain Power – are located in the authors’ home …

Demand Response’S Three Generations: Market Pathways And Challenges In The Modern Electric Grid, Joel Eisen

Law Faculty Publications

Through a historical analysis spanning nearly five decades, this Article provides a comprehensive discussion of how demand response (reductions in electricity consumption in response to grid emergencies or price signals) has become both a growing resource on the electric grid and a policy trailblazer in the grid’s ongoing transformation. The discussion centers on three separate generations of efforts to promote demand-side measures in the electric grid, dating to the 1960s and oriented chronologically around important events in the electric power industry.

Demand response has been a test bed of important regulatory principles like frameworks for interactivity with the grid, the …

Little Streams And Legal Transformations, Dave Owen

Utah Law Review

In 1972, Congress passed a statute whose text offered sweeping protection for waterways across the nation. In theory, those protections extended to little streams. Actual practices were different, not just in the 1970s but also well into the 1990s. But over the past twenty years, small streams have become a central focus of regulatory protection, with the extent and type of those protections continuing to evolve to this day, and with additional changes still possible. The future of that evolution is uncertain, and it may hang in the balance; Congress, the incoming administration, or the courts could nip much of …

The Ends And Means Of Pollution Control: Toward A Positive Theory Of Environmental Law, David M. Driesen

Utah Law Review

An understanding of environmental law’s means and ends makes it possible to understand the field as a whole, both in terms of the overall structure of statutes and relationships between means and ends. This analysis of means and ends yields a host of valuable insights and significant research questions. It also provides an important foundation for evaluating proposed regulatory reforms. A reasonably complete theory, at a minimum, should also explain key features of the enforcement regime and the allocation of authority among governments. The theory of means and ends articulated here constitutes a very substantial step forward in constructing a …

Behavioral Public Choice And The Carbon Tax, Gary M. Lucas Jr.

Utah Law Review

In response to the historic Paris Agreement on climate change and to the Environmental Protection Agency’s recently finalized Clean Power Plan, economists and other climate policy experts have renewed the call for the United States to adopt a carbon tax. Opposition among the public presents a major obstacle. While a majority of the public supports government action on climate change, most people favor the use of “green” subsidies and command-and-control regulations — a fact that frustrates economists of all political stripes who contend that a carbon tax would be much cheaper and more effective. This Article argues that a cognitive …

Eliminating Passive Disposal: Equalizing Liability Among Current And Prior Owners And Operators In The Comprehensive Environmental Response, Compensation, And Liability Act Of 1980, Joe Amadon

Utah Law Review

It seems clear, through the 1986 SARA, that Congress did not want innocent parties who conducted due diligence in inspecting the land to be liable under CERCLA. Thus, expanding CERCLA’s definition of disposal to attach liability to passive conduct is inconsistent with Congress’s intent. Therefore, in order to align enforcement of CERCLA with its dual purposes and Congress’s intent in enacting the Act, disposal should be interpreted to exclude passive migration of hazardous substances when the owner or operator knows nothing of the presence of the hazardous substance that is spreading.

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.