Environmental Law Commons^™

Prosecutorial Discretion And Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014, David M. Uhlmann

Michigan Journal of Environmental & Administrative Law

In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that …

Can A State’S Water Rights Be Dammed? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Michigan Journal of Environmental & Administrative Law

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment …

Trump, Donald: Environmental Policy Of,, Howard J. Bromberg

Book Chapters

Businessman and US. president Donald John Trump was born in Queens, New York, to Frederick (Fred) Trump and Mary MacLeod. Fred Trump, a real estate developer, brought Donald into the family real estate business. Through his business operations, Trump became a billionaire. Donald also became a television celebrity with the reality show The Apprentice. In one of the most unpredictable elections in American history, Trump became the 45th president of the United States. His administration aggressively promoted development of oil, gas, mineral, and coal resources. In doing so, he revoked numerous environmental protections.

Environmental Law In The United States, Howard J. Bromberg, Joshua I. Barrett

Book Chapters

Environmental law in the United States comprises a complex patchwork of federal, state, and local statutes and regulations, along with the traditions of common law. Most statutory environmental programs emerged in the second half of the twentieth century. In the 1960s, writings such as Rachel Carson's Silent Spring (1962) fueled environmental awareness in the United States; the first Earth Day, celebrated on April 22, 1970, symbolized the birth of vironmental law entered a new era in 1970, when President Richard Nixon created the Environmental Protection Agency and the U.S. Congress passed the National Environmental Policy Act and the 1970 Clean …

The Federal Government Has An Implied Moral Constitutional Duty To Protect Individuals From Harm Due To Climate Change: Throwing Spaghetti Against The Wall To See What Sticks, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The continuing failure of the federal government to respond to the growing threat of climate change, despite affirmative duties to do so, creates a governance vacuum that the Constitution might help fill, if such a responsibility could be found within the document. This Article explores textual and non-textual constitutional support for that responsibility, finding that no single provision of the Constitution is a perfect fit for that responsibility. However, the document as a whole might support constitutionalizing an environmental protection norm as an individual right or affirmative government obligation given the norm's importance to the enjoyment of other constitutional rights …

Consumer Power To Change The Food System? A Critical Reading Of Food Labels As Governance Spaces: The Case Of Acai Berry Superfoods, Christine Parker, Hope Johnson, Janine Curll

Journal of Food Law & Policy

This article argues that the marketing claims on food labels are a governance space worthy of critical examination. We use a case study of superfood açaí berry products to illustrate how marketing claims on food labels encapsulate dominant neoliberal constructions of global food systems. These marketing claims implicitly promise that by making careful choices consumers can resist and redress the ravages of unbridled global capitalism. Food labels suggest that consumers can use market signals to simultaneously govern our own selves and the market to ensure sustainable, fair, and healthy consumption. In response, this article develops, justifies and applies a socio-legal …

The Clash Of Agricultural Exceptionalism And The First Amendment: A Discussion Of Kansas' Ag-Gag Law, Meredith Kaufman

Journal of Food Law & Policy

Since the Nation’s founding, agricultural production has been treated differently than other industries. This concept, known as “agricultural exceptionalism,” has manifested in many different ways throughout U.S. history. Since the 1990s, one manifestation of agricultural exceptionalism has been the enactment of “Ag-gag laws,” state laws that limit information gathering activities at animal production facilities. Ag-gag laws are frequently criticized by animal welfare advocates and legal scholars for seeking to shield animal production facilities from public scrutiny, a state-sanctioned protection not afforded to other industries.

Blockchain Meets Genomics: Governance Considerations For Promoting Food Safety And Public Health, Walter G. Johnson

Journal of Food Law & Policy

Foodborne illness remains an ongoing public health challenge in both the developing and industrialized worlds. In the United States, almost 50 million reported cases of infectious disease occur every year from a food product, resulting in substantial morbidity and mortality with economic burdens to health care and productivity. Despite recognition as a leader in food safety, the U.S. experiences longstanding and novel issues in food safety. Advances in whole genome sequencing (WGS) promise to bolster food safety regulators’ capabilities to identify pathogens and determine their source. However, inefficiencies in tracing food products through the supply chain remain.

Federal Regulation Of Pesticide Residues: A Brief History And Analysis, Kate Z. Graham

Journal of Food Law & Policy

In the United States today, there are over 900 pesticides in use1 and over 400 are approved for use in food production, whether used as part of the growing process or in post-harvest handling. Although the history of pesticide use in food crops goes back centuries, the post-war period has seen an enormous growth in the varieties and amounts of pesticides used in our food system. As our reliance on pesticides has grown, pesticides have become a divisive issue. Pesticide advocates view them as essential to a secure and reliable food supply needed to feed a growing world population. Detractors, …

Legislative And Executive Branch Developments Affecting The United States Department Of Agriculture Supplemental Nutrition Assistance Program, Sheila Fleischhacker, Alyssa Moran, Sara N. Bleich

Journal of Food Law & Policy

For more than forty years, the United States Department of Agriculture Supplemental Nutrition Assistance Program (SNAP; formerly Food Stamps) has offered nutrition assistance to nearly forty million eligible individuals and families each month. This article first provides a brief overview of the evolution of the United States’ largest domestic food security and nutrition safety net program. Then, the article reviews Congressional actions taken regarding SNAP during the 2018 Farm Bill deliberations, appropriations for fiscal years 2017 through 2020, and oversight (in)activities. The article focuses on Congressional activities regarding block grants; participant eligibility; benefit adequacy, issuance, and redemption; and strengthening SNAP’s …

Something’S In The Water: A Look At How Creativity And Innovation Can Prevent Future Water Crises, Tristan Holiday-Nowden

Creativity and Change Leadership Graduate Student Master's Projects

The purpose of this project is to raise awareness and create a level of consciousness about water, unlike anything we have seen in the past. This project presents a synthesis of current writings and ideologies from the fields of Environmental Science and Water Research. As well as think pieces and informative news articles from various publications.

To illustrate the damaging effects of water contamination, water pollution, and water scarcity; Flint, Michigan will serve as a case study. After diagnosing and defining the problem using the Creative Problem Solving (CPS) framework. This project will explore the challenge and look at the …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

Proxy Voting Reform: What Is On The Agenda, What Is Not On The Agenda, And Why It Matters For Asset Owners., Cynthia A. Williams

Articles by Maurer Faculty

Investor proxy voting practices have entered the public spotlight again in 2018 as Congress and the Securities and Exchange Commission ("SEC") consider changes to the rules which govern proxy voting and regulation of proxy advisors. The focus has largely been on companies 'frustration with an asserted out-sized influence of proxy advisory firms and the corporate community's long standing pushback to shareholder proposals, especially those dealing with environmental, social, and governance ("ESG') issues. However, an accurate recognition of the longstanding principles which underlie institutional investors 'fiduciary duties and provide the legal context for the exercise ofproxy voting rights has been largely …

From Nuisance To Environmental Protection In Continental Europe, Vanessa Casado-Pérez, Carlos Gomez Liguerre

Faculty Scholarship

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial …

Animal Agriculture Liability For Climatic Nuisance: A Path Forward For Climate Change Litigation?, Daniel E. Walters

Faculty Scholarship

Despite possessing statutory authority to regulate at least some contributing causes of climate change, environmental regulators in the United States have recently found themselves tied up in political gridlock. In response, advocates are turning from the regulatory track to a common law liability track, bringing public nuisance suits against fossil fuel producers and electric utilities. However, most of these public nuisance suits have met a common fate: they have been held to be displaced by the comprehensive regulatory framework for controlling greenhouse gas emissions contained in the Clean Air Act. As long as there is even the possibility of regulatory …

Cultural Heritage Preservation In The Context Of Climate Change Adaptation Or Relocation: Barbuda As A Case Study, Martha B. Lerski

Dissertations, Theses, and Capstone Projects

This case study introduces an arts camp methodology of engaging communities in identifying their key cultural heritage features, thus serving as a meta study. It presents original research based on field studies on the climate-vulnerable Caribbean island of Barbuda during 2017 and 2018. Its Valued Cultural Elements survey, enabling precise identification of key tangible and intangible art forms and biocultural practices, may serve as a basis for further studies. Such approaches may facilitate future research or planning as climate-vulnerable communities harness Local or Indigenous Knowledge for purposes of biocultural heritage preservation, or towards adaptation or relocation. I report on findings …

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the …

Gold King Mine Spill: Environmental Law And Legal Protections For Environmental Responders, Clifford J. Villa

Utah Law Review

On August 5, 2015, EPA contractors working at the Gold King Mine in southwestern Colorado accidently released approximately three million gallons of contaminated mine water into the drainage of the Animas River. The water contained metals which created a bright orange plume that coursed down the Animas River and into the connecting San Juan River for many days, attracting nationwide attention and creating great concern for many local communities. The plume touched at least three states, three tribes, and numerous municipalities. The release fortunately did not prove an environmental catastrophe as many people feared at the time. However, it did …

Clean Energy Equity, Felix Mormann

Utah Law Review

Solar, wind, and other clean, renewable sources of energy promise to mitigate climate change, enhance energy security, and foster economic growth. But many of the policies in place to promote clean energy today are marred by an uneven distribution of economic opportunities and associated financial burdens. Tax incentives for renewables cost American taxpayers billions of dollars every year, yet the tax code effectively precludes all but the largest banks and most profitable corporations from reaping the benefits of these tax breaks. Other policies, such as renewable portfolio standards that set minimum quota to create demand for renewable electricity require such …

The (Next) Big Short And The End Of The Anthropocene, M. Alexander Pearl

Utah Law Review

It is incredibly difficult to imagine an event the likes of which humans have never seen before. That, in and of itself, renders the challenge to prepare for such an event even more difficult because there is no frame of reference pushing us to act. How do you prepare to avoid something which has never occurred in the history of human occupation? That is the challenge of climate change.

I argue that the Subprime Mortgage Crisis and its aftermath parallel the Climate Crisis in critical ways that should inform our tactics. Of course, there are obvious critical differences as well. …

Pure As Running Water: A Constitutional Argument For Utah’S Public Trust Doctrine, Brandon S. Fuller

Utah Law Review

Water rights in America, particularly in western states, have been a pervasive source of legal contention. The histories of these water rights, and the public trust doctrine more broadly, have created a tremendously complex area of law. This field of law is very old and draws on policy concerns stretching back to 100 B.C., overlapping federal and state powers and precedents, and what can only be described as one of the longest games of jurisprudential telephone in existence. As a result, anyone seeking to challenge a state statute, court opinion, or regulation, which they believe impermissibly restricts the public’s right …

Clean Drinking Water: A Stream Of Success And Opportunity For Reform, Kayla Weiser-Burton

Utah Law Review

The SDWA was a major regulatory step in protecting the nation’s drinking water and the public’s health. Creating a uniform set of regulations for levels of viruses, bacteria, and chemicals ensured cleaner water for all citizens and ultimately has allowed the United States to provide some of the cleanest water worldwide. The revisions made in 1986, 1996, and 2016 have continued to expand the SDWA by listing more contaminants for regulation as well as providing more federal funding to assist water providers in meeting these objectives.

A Call For Energy Realism: When Immanuel Kant Met The Keep It In The Ground Movement, Monika U. Ehrman

Utah Law Review

The “Keep it in the Ground” Movement (the “Movement”) is a coalition of environmental groups that seek to end fossil fuel extraction by halting oil and gas development on federal lands. Supporters of the Movement demand a safer climate future and the transition to a renewable energy economy. However, the Movement is premised on the notion that the United States can divest fossil fuels, particularly petroleum hydrocarbons, from its energy economy and terminate oil and gas development in the near-term future. The Movement disregards the possibilities of serious economic impacts with respect to domestic revenues and infrastructure framework, and geopolitical …

Building Safe, Secure And Sustainable Futures In The South China Sea, Michelle Mei Ling Lim

Research Collection Yong Pung How School Of Law

This essay argues that by framing security in the South China Sea through the lens of territorial claims and power relations the bigger picture of a safe, secure and sustainable South China Sea is neglected. The essay reflects on a photograph from my childhood on the shores of the South China Sea. In the photograph, I have a little red bucket in my hands and a wide grin on my face as I prepare to build a sandcastle. In the intervention, I recall how it feels to be truly secure. By returning to the joys of childhood experienced on the …

Indonesian Timber Legality Assurance System (Svlk): In Pursuit Of Sustainability In Forest Governance, M. Yakub Aiyub Kadir

Indonesia Law Review

This paper investigates the Indonesian Timber Legality Assurance (Sistem Verifikasi Legalitas Kayu, SVLK) and its nature to produce legal wood under the European Union-Forest Law Enforcement Governance and Trade (EU-FLEGT) system. It is intended to ensure the exporting states control over legality of wood under new forest governance and its enforcement in EU market. Using a critical legal analysis, this paper argued that the SVLK could present legality in a formalistic way, but it could not guarantee the substantial meaning of benefit for sustainability, participatory and community. Therefore this paper contributes to provide a better understanding of the application of …

Pennsylvania's Environmental Rights Amendment: Past, Present, & Future, Franklin Kury

Sustainability Research & Practice Seminar Presentations

No abstract provided.

Indigenous Environmental Network V. United States Department Of State, Seth Sivinski

Public Land & Resources Law Review

Pipelines are an extremely efficient way to move large amounts of oil and gas across long distances. However, pipelines have become a lightning rod for environmentalists opposing the lines’ construction and the energy sector which considers the lines a must to achieve energy independence and security. Pipelines are massive projects often crossing interstate and international boundaries. As a result, they are subject to an extensive amount of government regulation with an accompanying assortment of legal challenges. Indigenous Environmental Network v. United States Department of State is the latest case in the Keystone XL pipeline saga, wherein the United States District …

Kloker V. Fort Peck Tribes, Hallee Kansman

Public Land & Resources Law Review

Kloker v. Fort Peck Tribes investigates and deciphers the application of the Indian canons of construction to the congressional formation and establishment of the Fort Peck reservation in Montana. In general, courts interpret congressional acts creating reservations through the lens of the tribal-federal government trust relationship. Although this case examines different substantive models of legal interpretation and theories of water law, the ultimate dispute is textual in nature—questioning the plain language of the establishment legislation itself.

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.

Murray V. Bej Minerals, Llc, Brett Berntsen

Public Land & Resources Law Review

Part of a dispute some 66 million years in the making, Murray v. BEJ Minerals, LLC considered for the first time whether dinosaur fossils—specifically a one-of-a-kind specimen containing entombed “dueling dinosaurs”—qualified as “minerals” for the purposes of a property transaction under Montana law. Finding no consistent statutory or dictionary definition for “mineral,” the Ninth Circuit relied on a test previously utilized by the Montana Supreme Court to hold that the dinosaur fossils constituted minerals due to their rare and exceptional qualities and were therefore part of the property’s mineral estate. The decision was promptly nullified, however, as the Ninth Circuit …