Environmental Law Commons^™

Tribal Consultation Policy And Practice:A Case Study Of The Confederated Salish And Kootenai Tribes And Nmisuletkʷ (The Middle Fork Of The Clark Fork River) As A Tribal Trust Resource, Jennifer J. Harrington

Graduate Student Theses, Dissertations, & Professional Papers

Formal, government-to-government Consultation between sovereign nations is a process of continuous relationship-building, a partnership and an agreement made with all points-of-view included in the process, with results that have the fingerprint of all nations involved evident. The Federal Government is obligated to work with Federally-recognized Tribes as sovereign nations in matters that have or will impact each Nation’s people and places (reservations, treaty-protected areas)—a process legally known as Consultation. The Environmental Protection Agency (EPA), as a federal agency, must uphold the Federal Trust responsibility which includes the act of Consulting with Federally-recognized Tribes on matters involving human health and the …

The "Green New Deal": Constitutional Limitations; Rerouting Green Technology, Steven Ferrey

Suffolk University Law School Faculty Works

This article reaches beyond the pro/con policy debate now surrounding the Green New Deal, to address prospectively the fundamental legal issue of whether, and how, the Green New Deal will be viewed by the courts when it is enacted and challenged. President Biden has pledged to have 100% sustainable electric power in the U.S. by 2035. The Green New Deal, sponsored by Representative Alexandria Ocasio-Cortez and Senator Edward Markey and co-sponsored or backed by a majority of the Democratic candidates for the 2020 presidency, combines “Green” elements with “New Deal” provisions.

Do two sweeping legal policies in the Green New …

Reaching Beyond The “Tools Of The Trade”: Anchors And Signposts To Enhance Mediator Effectiveness, Neil H. Katz

Cardozo Journal of Conflict Resolution

During my 48-year career as both a professor and program director in Conflict Resolution programs at various universities and the head of a modest organizational consulting firm, I have participated as a student and instructor in many mediation and other related Alternative Dispute Resolution classes and training. Alternative Dispute Resolution, often referred to as ADR, can be thought of as any means of dispute settlement outside of a courtroom. Various well-known methods of ADR include negotiation, conciliation, facilitation, mediation, and arbitration. I usually think the training and classes I have attended are of high quality, both in content and delivery. …

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

All Faculty Publications

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

Global Risks Of Intensive Animal Farming And The Wildlife Trade, Deborah Cao

Animal Sentience

This commentary discusses two issues highlighted by Wiebers & Feigin in the context of the current and future global health crisis: the wildlife trade and factory farming. Both are instances of globalized animal cruelty – in China as well as worldwide -- that require global solutions for the well-being of both humans and nonhumans.

Toward Sustainable Recreation On Colorado's Fourteeners, Rebecca Sokol

University of Colorado Law Review

Colorado's fourteen-thousand-foot mountains, commonly known as fourteeners, are attracting visitors in unprecedented numbers. As people flock to the state's most popular peaks, hikers degrade the environment and create safety problems. This Comment addresses potential approaches to recreation management on fourteeners and argues that traditional use-limit management methods, like visitor quotas, do not align with sustainability objectives. The Forest Service, the primary land management agency for most fourteeners, has a duty to promote sustainable recreation by incorporating environmental, social, and economic factors into its decision-making processes. However, the Forest Service tends to rely on use limits even though these methods would …

Cercla: It's Time To Prioritize Climate Threats, Lyndsie Dundas

University of Colorado Law Review

Climate change will bring more extreme weather, including increased flooding and wind damage, to all stretches of the United States. These effects of climate change will cause profound consequences for communities living near sites with a legacy of toxic waste. With 1,883 Superfund sites on the National Priorities List and countless other U.S. properties with some degree of contamination, climate change will result in increased risk of exposure for surrounding local populations and environments. Currently, the Hazard Ranking System does not consider effects of climate change when calculating the risk a site poses to the public. Without considering associated climate …

The Greater Yellowstone Ecosystem Revisited: Law, Science, And The Pursuit Of Ecosystem Management In An Iconic Landscape, Robert B. Keiter

University of Colorado Law Review

Thirty years ago, the Greater Yellowstone Ecosystem (GYE) concept and ecosystem management surfaced as key to preserving this legally fragmented region's public lands and wildlife in the face of mounting development pressures. Yellowstone's grizzly bears were in sharp decline and wolves were absent from the landscape, while bison and elk management issues festered. The GYE's national forest lands were subject to extensive logging, energy leasing, and other commercial activities that cumulatively threatened the region's ecological integrity. In the face of extreme jurisdictional complexity and a strong commitment to agency discretion, a high-profile federal "Vision" effort to improve and better coordinate …

Honoring Sally Jewell, Charles Wilkinson

University of Colorado Law Review

No abstract provided.

Don't Go In The Water: On Pathological Jurisdiction Splitting, Jamison E. Colburn

Faculty Scholarship

Waters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind.

A Sinking World: A Model Framework For Climate Change Adaptation Measures In Coastal Cities, Emma Rose

Vanderbilt Journal of Transnational Law

Climate change has already begun wreaking havoc on coastal communities across the globe, including Miami, Venice, and the Philippines. Adaptation mechanisms may be the most powerful weapons these communities have to combat sea level rise and the other disastrous effects of a warming planet. However, these adaptation programs must fit within each nation's unique federal and local regulatory schemes. Additionally, when they are funded by the federal government or foreign sources, these communities may have to sacrifice some autonomy over their implementation. While adaptation strategies can be broken down into three primary modes--resistance, transformation, and retreat--the most effective combination of …

Hold The High-Water Line: A Transnationally Informed Coastline Protection Scheme In The United States, Charlie Spencer-Davis

Vanderbilt Journal of Transnational Law

Climate change and sea level rise degrade the environment, infrastructure, and private property along US coastlines. The magnitude of these harms will only accelerate unless the United States improves its coastal protection scheme. Informed by approaches in Israel, the United Kingdom, and China, this Note offers a dynamic solution to coastline protection by way of a federal Rolling Coastal Conservation Easements Act. The act would authorize states to develop and implement rolling easements on private coastal properties. This flexible scheme would include compensation for those landowners who grant easements to their localities, while giving private property owners the option to …

Toxic Floodwaters: Strengthening The Chemical Safety Regime In The Climate Change Era, Noah M. Sachs

Law Faculty Publications

Extreme flooding linked to climate change has caused toxic chemical spills across the United States, yet policymakers are not prioritizing industrial chemical safety in planning for climate change. Many scholars and industry executives have argued that existing private law mechanisms, such as insurance and tort-based deterrence, can adequately manage the risk of flood-induced chemical releases from industrial sites. But private law mechanisms have failed to prevent past incidents of mass contamination, and there is little evidence that tort law deters industrial firms from the practices that put communities at risk. In this Article, I engage in a comparative analysis of …

The Arctic In World Affairs: A North Pacific Dialogue On Will Great Power Politics Threaten Arctic Sustainability, Lawson W. Brigham, Robert W. Corell, Jong Deog Kim, Yoon Hyung Kim, Arild Moe, Charles E. Morrison, David Vanderzwaag, Oran R. Young

Reports & Public Policy Documents

The eight Arctic states (Canada, Denmark/Greenland, Finland, Iceland, Norway, Sweden, the Russian Federation, and the United States) wish to maintain a position of preeminence when it comes to dealing with matters of Arctic Ocean governance. However, major non-Arctic states, while recognizing the sovereign rights of the coastal states in their economic zones and on their continental shelves, have growing interests in the maritime Arctic relating to activities such as commercial shipping, oil and gas development, fishing and ship-based tourism. They are increasingly claiming to have a legitimate interest in being consulted when it comes to addressing matters relating to the …

Taxing Residential Solar, Gregg Polsky, Ethan Yale

Scholarly Works

Residential solar systems are becoming commonplace in many regions of the United States. Use of such systems raises issues in tax doctrine and policy that are not well appreciated and have not yet been systematically analyzed. The goals of this article are threefold: (1) to identify the main issues and to organize them into a coherent framework, (2) to analyze the doctrinal and policy ramifications of present law, and (3) to suggest improvements to present law.

Environmental Law, Travis M. Trimble

Scholarly Works

Notable cases decided in the United States Court of Appeals for the Eleventh Circuit in 2019 all arose out of disputes that originated under the Clean Water Act (CWA). The Eleventh Circuit held that, in preparing an Environmental Impact Statement (EIS) in connection with its decision to issue a dredge and fill permit under Section 404 of the CWA, the Corps of Engineers (Corps) was not required to consider potentially negative environmental effects resulting from activity made possible by the permit where the agency had no authority independently to regulate the effects. The court also held that the Environmental Protection …

A Relational Analysis Of Enterprise Obligations And Carbon Majors For Climate Justice, Sara L. Seck

Articles, Book Chapters, & Popular Press

A coherent theory of climate justice must answer the question of “who owes what to whom, and why?” In this paper I consider this question with a focus on the contribution of business enterprises, in particular the ‘carbon majors’, to climate injustice. I will first introduce a relational approach to legal analysis, drawing upon the work of feminist and vulnerability theorists, Indigenous feminist theorists, and feminist corporate and international law theorists. This relational approach confronts the dominant yet unacknowledged prevalence of the bounded autonomous individual of liberal thought in diverse areas of law and policy, and offers a method not …

Are Transboundary Fisheries Management Arrangements In The Northwest Atlantic And North Pacific Seaworthy In A Changing Ocean?, Olga Koubrak, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Climate change is affecting physical and biological components and processes of marine ecosystems in many ways. Resulting changes in abundance and distribution of commercially valuable species are anticipated to create or exacerbate challenges for fisheries management across national boundaries by raising questions around catch allocation, membership in the management organizations, and forms of cooperation between the organizations. In this paper we assess eight transboundary fisheries arrangements in the Northwest Atlantic and North Pacific on their preparedness to respond to climate-change driven changes. For each arrangement a three-part analysis is provided. A general introduction to fisheries management responsibilities, including species and …

Introduction, Aldo Chircop, Floris Goerlandt, Claudio Aporta, Ronald Pelot

Articles, Book Chapters, & Popular Press

This chapter introduces a multidisciplinary collection of chapters addressing various aspects of governance of Arctic shipping written by leading international scholars. It investigates how ocean changes and anthropogenic impacts affect our understanding of risk, policy, management and regulation for safe navigation, environment protection, conflict management between ocean uses, and protection of Indigenous peoples’ interests in Canadian Arctic waters. The book is divided in three parts, together providing a multi-faceted and interdisciplinary view on governance of Arctic shipping. The first part addresses conceptual and empirical aspects of risk governance, management, and assessment in the Canadian Arctic. The second part focuses on …

The Regulation Of Heavy Fuel Oil In Arctic Shipping: Interests, Measures, And Impacts, Jiayu Bai, Aldo Chircop

Articles, Book Chapters, & Popular Press

Since the International Maritime Organization’s (IMO) ban on the use and carriage for use of heavy fuel oil (HFO) for ships operating in Antarctic waters came into effect in 2011, the international community has been engaged in a discourse on whether to adopt a similar standard for ships operating in Arctic waters. The issues are complex as, in addition to reducing the environmental risks posed by HFOs, there are economic and social consequences, including dependence on such fuels by Indigenous peoples. The discourse has involved the IMO, the Arctic Council, industry associations, environmental nongovernmental organizations, and Indigenous peoples. The issue …

The Regulation Of Ship Emissions In Canadian Northwest Atlantic And Arctic Waters: Is There A Need For Consistency And Equity?, Aldo Chircop

Articles, Book Chapters, & Popular Press

Since the adoption of Annex VI of the International Convention on the Prevention of Pollution from Ships, 1973/78, the International Maritime Organization has gradually expanded the scope of ship emission regulation to include VOCs, SOx, NOx, particulate matter and, more recently, greenhouse gas emissions. This regulatory effort has not been integrated and displays some inconsistency and even fragmentation, resulting in different levels of environment protection for different regions and even potential conflicts between standards. The regulation of use and carriage of heavy sulphur fuel oil may lead to increase of clean fuel use and thereby produce more CO2 emissions. Designation …

The Theorized Relationship Between Organizational (Non)Compliance With The United Nations Guiding Principles On Human Rights And Desired Employee Workplace Outcomes, Magda B. L. Donia, Salvador Herencia Carrasco, Sara L. Seck, Robert Mccorquodale, Sigalit Ronen

Articles, Book Chapters, & Popular Press

Despite the presence of guiding legislation such as the United Nations Guiding Principles, respect for human rights is subject to the conscience of organizational actors. Given that some transnational corporations are more powerful than nation states, they play an important role in the economies in which they operate, often with far-reaching impact on the labor conditions and human rights protections within these countries. In the current global context, respect for human rights may be undermined when organizational decision-makers are tempted to ignore unethical practices due to considerations such as competition and short-term financial incentives. We propose that the higher standards …

Sustaining Canadian Marine Biodiversity: Policy And Statutory Progress, Jeffrey A. Hutchings, Julia K. Baum, Susanna D. Fuller, Josh Laughren, David Vanderzwaag

Articles, Book Chapters, & Popular Press

A 2012 Expert Panel Report on marine biodiversity by the Royal Society of Canada (RSC) concluded that Canada faced significant challenges in achieving sustainable fisheries, regulating aquacul- ture, and accounting for climate change. Relative to many countries, progress by Canada in fulfilling international obligations to sustain biodiversity was deemed poor. To track progress by Canada since 2012, the RSC struck a committee to track policy and statutory developments on matters pertaining to marine biodiversity and to identify policy challenges, and leading options for implementation that lie ahead. The report by the Policy Briefing Committee is presented here. It concluded that …

Next Generation Environmental Assessment In The Emerging High Seas Regime? An Evaluation Of The State Of The Negotiations, Meinhard Doelle, Gunnar Sander

Articles, Book Chapters, & Popular Press

Click here to access/download;Manuscript;DoelleSander_NextGenerationEAa

Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations

Meinhard Doelle Canadian Chair, Marine Environmental Protection World Maritime University [email protected]

Gunnar Sander Norwegian College of Fishery Science University of Tromsø, the Arctic University of Norway

Abstract

This article evaluates prospects for an effective Environmental assessment (EA) regime through the Biodiversity Beyond National Jurisdiction (BBNJ) process and suggests improvements to the results of the negotiations as of March 2020. We start our review by offering key elements of existing international law as it relates to EA as context. …

Loss & Damage From Climate Change: A Maturing Concept In Climate Law?, Meinhard Doelle, Sara Seck

Articles, Book Chapters, & Popular Press

In this article we examine legal perspectives on recovery for harm caused by climate related loss and damage. We start by discussing the meaning of loss and damage, and its relationship to climate mitigation and adaptation. We then consider, at a conceptual level, how those harmed by loss and damage from human induced climate change may pursue remedies against those who have contributed to the harm suffered.

Transboundary Fisheries, Climate Change, And The Ecosystem Approach: Taking Stock Of The International Law And Policy Seascape, Cecilia Engler

Articles, Book Chapters, & Popular Press

The ecosystem approach to fisheries management is a conceptual and practical framework consistent with, and supportive of, climate change adaptation at the national and regional level. Implementing an ecosystem approach can contribute to climate change adaptation by improving ecosystem resilience and reducing vulnerability to climate change, by providing planning strategies and tools to monitor and assess the impacts of climate change on fisheries, and by relying on precautionary, flexible, and adaptive approaches that account for the uncertainties, surprises, unpredictability, and dynamism of ecosystems in a changing climate.

In this article, I provide an overview of some key considerations framing the …

Implementation Of Article 82 Of The United Nations Convention On The Law Of The Sea: The Challenge For Canada, Aldo Chircop

Articles, Book Chapters, & Popular Press

Article 82 of the United Nations Convention on the Law of the Sea is a novel provision introducing the first-ever international royalty on production from non-living resources within national jurisdiction, specifically from the extended continental shelf as defined in Article 76. Article 82 has several textual ambiguities that could pose a challenge for its interpretation and implementation by both affected coastal States and the International Seabed Authority. The Authority is responsible for receiving payments or contributions in kind and for effecting their distribution to States Parties to the Convention, especially developing countries, in accordance with equitable criteria. The Authority has …

Gearing Up Impact Assessment As A Vehicle For Achieving The Un Sustainable Development Goals, Angus Morrison-Saunders, Luis E. Sánchez, François Retief, A. John Sinclair, Meinhard Doelle, Megan Jones, Jan-Albert Wessels, Jenny Pope

Articles, Book Chapters, & Popular Press

This article reflects on the potential for impact assessment (IA) to be a major vehicle for implementing the UN Sustainable Development Goals (SDGs). While it is acknowledged that the SDGs are intended to deliver broader outcomes than IA currently does, we nevertheless argue there is significant convergence between IA and the SDGs, which we explore utilising the key dimensions of sustainability assessment: comprehensiveness, strategicness and integratedness. We conclude that ‘geared up’ IA might be used as a major vehicle to facilitate achievement of the SDGs. However, IA must become more comprehensive and integrated, such that the full suite of SDGs …

The Netherlands V Urgenda Foundation: Lessons For Using International Human Rights Law In Canada To Address Climate Change, Karinne Lantz

Articles, Book Chapters, & Popular Press

This case digest focuses on the Canadian implications of Urgenda— particularly with respect to current attempts to use human rights arguments to require more ambitious and immediate efforts to reduce Canadian GHG emissions. Although the Canadian Arctic (and Indigenous communities residing there) are particularly vulnerable to the threats posed by global climate change, there has not yet been a court decision addressing Canada’s continuing failure to meet its successive GHG emissions targets. With pending climate litigation invoking a human rights approach, it is only a matter of time before Canadian courts will be faced with deciding, among other things, whether …

Sdlp After 20: Sustainable Development In The Anthropocene, David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.