Environmental Law Commons^™

Chapter 2: Western Public Land Law And The Evolving Management Landscape, John C. Ruple

Wallace Stegner Center for Land, Resources, and the Environment publications

Our nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which continues to shape the choices we make today. Laws enacted to speed westward expansion and resolve land ownership indelibly marked the Western landscape, where the vast majority of our public lands are found today.

The US government acquired the Western frontier with federal blood and treasure, and then enacted laws conveying much of that landscape to states, railroads, and the indomitable men …

Detecting Corporate Environmental Cheating, Seema Kakade, Matt Haber

Faculty Scholarship

As evidenced by the Volkswagen diesel emissions scandal, corporations cheat on environmental regulations. Such scandals have created a surge in the academic literature in a wide range of areas, including corporate law, administrative law, and deterrence theory. This article furthers that literature by focusing on one particular area of corporate cheating—the ability to learn of the cheating in the first place. Detecting corporate cheating requires significant information about corporate behavior, activity, and output. Indeed, most agencies have broad statutory authority to collect such information from corporations, through targeted records requests, and inspection. However, authority is different from ability. The corporate …

Remedial Payments In Agency Enforcement, Seema Kakade

Faculty Scholarship

During the Obama Administration, the government settled many enforcement cases involving alleged violations of the nation’s federal statutes. The settlements have several requirements, including that the defendants pay money for beneficial projects to mitigate or offset harm directly or indirectly caused by defendant’s actions. For example, the government settled an environmental enforcement case against Volkswagen that included payments for environmental projects, and a mortgage enforcement case against Bank of America that included payments for housing education projects. These payments have spawned renewed criticism amongst conservative groups who have long claimed that payments for projects are mechanisms for agencies to get …

The Moral Imperative Of Green Nuclear Energy Production, Don Howard

Notre Dame Journal on Emerging Technologies

A climate crisis is upon us. Human-caused global warming is already changing our planet's climate in dramatic ways, and the effects are forecast to become far worse by the end of the century without rapid and radical changes to the global energy economy and the other forms of human activity that generate CO2 and other greenhouse gases, such as methane. The ten hottest years on record have all occurred since 1998, with the past five years topping the list. We already see the disappearance of the arctic ice pack, massive glacial melting in Greenland, sea-level rise, massive wildfires in northern …

Note: Fracking Fluids: Regulatory Disclosure And Trade Secret Ingredients, Alison Ibendahl

Notre Dame Journal on Emerging Technologies

The Note reviews current law, policy, and politics that are part of the discussion around disclosing fracking fluid trade secrets. Part I of this paper provides a background of fracking, why it is valuable, and intellectual property regimes used by owners of fracking relating to intellectual property. Part II reviews the regulatory takings doctrine, trade secret law and the interaction between them. Current disclosure laws, the policy considerations of disclosure law, and political attitudes towards fracking are discussed in Part III. This review concludes with general comments on current disclosure and the potential changes to regulations.

Electric Load Flexibility Analysis For The Clean Energy Transition, Peter Alstone, Mary Ann Piette

Notre Dame Journal on Emerging Technologies

A clean energy transition on the electricity grid is underway with the addition of new renewable generation, improved capabilities for sensing and controls, and "distributed energy resources" (DER) that include efficiency, battery storage, flexible loads, and electrified heating and transportation. The complex interactions between these advances require new analytic techniques to support decisions by utilities, regulators, and enterprises developing and deploying new DER. In this paper, we describe an approach for estimating the potential of flexible loads (often also referred to as "demand response" (DR)) to contribute to the planning and operation of the grid. The analysis was developed in …

Moat Mentality: Onshore And Offshore Approaches To Wind Waking, K.K. Duvivier, Brendan T. Mooney

Notre Dame Journal on Emerging Technologies

Wind energy developers are becoming increasingly aware of the damaging impact of wakes from turbines. To deal with the issue on land, many terrestrial developers have adopted a "moat mentality," creating buffer zones around their wind plants' to protect them from neighboring wind developments. While these "moats" may protect the investment of a particular wind developer, they render large areas that could be generating electricity into unproductive waste zones. US offshore wind development is in its nascence. This article will explore ways that offshore wind developers are addressing waking issues and whether they can find more collaborative solutions to maximize …

Note: The Weakest Link In Greenhouse Gas Emissions Regulation: A Comparative Study Of Methane Waste Law In The United States, Vienna Bottomley

Notre Dame Journal on Emerging Technologies

In this comparative study, I will analyze the various methods employed by states for monitoring and curtailing methane leakage in comparison with approaches that have been employed at the federal level. I will juxtapose the regulatory regimes of Colorado, North Dakota, New York, Pennsylvania, New Mexico, and California with the Obama Administration methane leakage regulations, including the 2016 Bureau of Land Management (BLM) "methane waste rule" regulations that the Trump Administration formally rolled back in September 2018. Finally, I will consider what the failure of the Obama Administration methane leak regulations means for climate change law in the United States …

Foreword, Peter C. Burns

Notre Dame Journal on Emerging Technologies

There is still much work to do to ensure access to affordable, reliable, sustainable, and modern energy for all. Yet, we have made substantial progress in gaining a global understanding that using alternative energy sources will curb global warming and preserve Earth's resources. The hurdle of economic gain and political acceptance still remains a challenge. At the Center for Sustainable Energy at Notre Dame (ND Energy), we engage with faculty and associated researchers on these very issues and work to advance new technologies and energy systems in the hope of addressing these challenges and helping to attain the United Nations' …

Non-Legislative Rules Need Scrutiny Too: The Curious Case Of The Appropriate Care Standard, Ryan Mitchell

UC Law Environmental Journal

No abstract provided.

A Solution To Plastic Pollution? Using International Law To Shape Plastic Regulation In The United States, Allyssa Rose

UC Law Environmental Journal

The single-use plastic bag has become a prolific symbol of plastic pollution across the world. These convenient, lightweight bags may clog drainage systems or become a lethal snack for animals when not recycled properly. Due to the social and environmental harms caused by these bags, countries across the world have implemented legislation to tax plastic bags, or in some cases, ban their use all together. This paper seeks to identify the difference in approaches used by the Global North and Global South to determine the best approach for the United States to implement. Zealous advocacy on behalf of the plastics …

A Tale Of Two Portlands: How Port Cities Can Survive Dormant Commerce Clause Challenges To Fossil Fuel Shipping Restrictions, Kayla Race

UC Law Environmental Journal

Five port cities—Portland, Oregon; South Portland, Maine; Oakland, California; Longview, Washington; and Salt Lake City, Utah—have something in common: they all restricted the handling of fossil fuels at their shipping terminals. Moreover, impacted industries have responded with nearly identical dormant Commerce Clause-based lawsuits against the first four of those localities. This Article examines how much latitude cities have under the dormant Commerce Clause to restrict the handling of fossil fuels at their ports, using as case studies two recent court decisions upholding the ordinances of Portland, Oregon and South Portland, Maine under the dormant Commerce Clause. In addition, because the …

The Environmental Protection Agency Turns Fifty, Jonathan Adler

Faculty Publications

In anticipation of the fiftieth anniversary of the EPA’s founding, the Coleman P. Burke Center for Environmental Law and the Case Western Reserve Law Review sponsored a symposium to look at the past, present, and future of the EPA. The conference featured an array of environmental-law and -policy experts, including individuals who served in environmental-policy positions in each of the last four presidential administrations, as well as the current EPA Administrator, Andrew Wheeler.

This article is an introduction for the articles from this conference that are published in this special symposium issue of the law review.

Pioneers Of Environmental Law, Jan G. Laitos, John Copeland Nagle

Sturm College of Law: Faculty Scholarship

This book is intended to introduce the reader to examples of some of the persons who helped to invent and develop the field of environmental law. Some of these pioneers are well known; some are more obscure, but still have played critical roles in field of environmental law. A “pioneer” is among the first to explore a new area. And a pioneer of environmental law may be one who (1) first recognized the importance of the natural environment, (2) helped to invent the relatively new doctrine of environmental law and then ensured that it would survive, or (3) once the …

Sensitive Species Data In Colorado’S State And Local Government Decision-Making, Kevin J. Lynch, Marissa Hoffman, Katherine Klein, John Molera, Merrily Newcomb, Sarah Matsumoto, Wyatt Sassman, Natalie Norcutt

Sturm College of Law: Faculty Scholarship

This report addresses the use of sensitive species data in Colorado at both the state and local levels. At the state level, this research focuses on environmental statutes and regulations, permitting authority in various state agencies, and processes for identifying and dealing with sensitive species. At the local level, the focus is on the role of sensitive species data in development proposals, as well as the varying level of detail required for considering sensitive species data in in local government decision-making.

Principally, this report identifies: (1) areas where statutes and regulations require the consideration of sensitive species data; (2) areas …

Examining The Ethics Of Environmental Offsets: A Response To Biocentric Objections To Biodiversity Offsetting, Meredyth Merrow

UC Law Environmental Journal

No abstract provided.

Asian Carp, The Chicago Area Water System, And Aquatic Invasive Species Management In The Great Lakes, Charles Lyons

UC Law Environmental Journal

Aquatic Invasive Species (AIS) management is an essential component to the health, integrity, and conservation of the Great Lakes as a whole. Asian carp is the most recent AIS threat to the region. While litigation and interstate agreements have not stemmed the fear of the potential effects of the introduction of Asian carp to the Great Lakes, it has encouraged agency action to address the issue. However, the success of implementing proposed measures requires funding and congressional approval with questions regarding their efficacy remaining unknown. Due to the lack of a comprehensive overarching federal statute addressing AIS management in its …

The Growing Problem Of Space Debris, Sophie Kaineg

UC Law Environmental Journal

No abstract provided.

Remaking Environmental Justice, Clifford Villa

Faculty Scholarship

From movements for civil rights in the 1960s and environmental protection in the 1970s, the environmental justice movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of environmental justice expanded to address concerns for other dimensions of diversity. New and continuing challenges tell us that we need to reframe our understanding of environmental justice to ensure better protection for people going forward. One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha …

Climate Change, Regionalism, And Universalism: Elegy For The Arctic And The Antarctic?, Ottavio Quirico

American University International Law Review

No abstract provided.

From Civil Rights To Human Rights: The Pandemic’S Aftermath Requires Environmental And Reproductive Justice Mechanisms To Reinforce Global Public Health, Elena D. Gartner

Human Rights Brief

No abstract provided.

Northern Plains Resource Council V. United States Army Corps Of Engineers, Liz M. Forster

Public Land & Resources Law Review

Environmental activist and indigenous rights groups have challenged the validity of the Keystone XL Pipeline since its initial approval in 2010. In April 2020, less than a month after crews broke ground, the opposing groups notched a major win when the United States District Court for the District of Montana revoked a key permit for the project on the grounds that the United States Army Corps of Engineers had inadequately assessed the pipeline’s impact on endangered species.

Land Use Strategies That Mitigate Climate Change, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article discusses techniques and strategies that municipal governments can employ to mitigate climate change, of which land use and municipal law lawyers should be aware.

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing the English environment …

Completing The Portrait: Concluding Thoughts About Charles Reich, Rodger D. Citron

Touro Law Review

No abstract provided.

Acknowledgement, Melanie Mcnett, Julia Shaver

Natural Resources Journal

No abstract provided.

Designing Law To Enable Adaptive Governance Of Modern Wicked Problems, Barbara Cosens

Articles

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed "wicked" due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and …

Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley

Marquette Law Review

Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of socially oriented property theory as they are represented in the analytical framework of doctrines such …

The Regulatory Vacuum: How Marijuana's Schedule I Status Imperils Endangered Species In The Emerald Triangle, Jeffrey Bausch Jr.

Animal Law Review

The U.S. Fish and Wildlife Service (the Service) is unable to adequately address Endangered Species Act (ESA) petitions because marijuana’s Schedule I status creates a regulatory vacuum. Marijuana growers use pesticides, many of which are lethal at certain concentrations. Typically, these pesticides are highly regulated by the Environmental Protection Agency (EPA). Farmers may only use pesticides specifically prescribed for use on the plant or crop. EPA has been unable to research or register pesticides for use on marijuana plants, and as a result, growers use pesticides at abnormally high concentrations. Wildlife in northern California and Oregon are directly harmed as …