Environmental Law Commons^™

Sleight Of Land: The Socioenvironmental Impacts Of Global Land Trade In The International Investment System, April Crain

Colorado Environmental Law Journal

No abstract provided.

Public Lands And Native Americans: A Guide To Current Issues, John D. Leshy

Faculty Scholarship

No abstract provided.

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

The Hierarchy And Performance Of State Recycling And Deposit Laws, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

States can foster recycling of waste materials through a variety of policies. The majority of the states have recycling laws for waste products such as glass, plastic, cans, and paper. These laws vary in terms of stringency. The hierarchy we developed orders the laws as follows: laws that make recycling mandatory, laws that require the provision of recycling opportunities, laws that require the development of a recycling plan, and laws that specify a recycling goal. Based on national recycling data with over 400,000 observations, we find that the amount of recycling households undertake increases with the degree of stringency of …

International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa (M.J.) Durkee

Scholarship@WashULaw

The 1972 United Nations Conference on the Human Environment produced the Stockholm Declaration, an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. The historic event powerfully “dramatized . . . the unity and fragility of the biosphere,” sparking a remarkable period of international legal innovation and cooperation on environmental protection in the decades to come.

The Stockholm Declaration can be rightly celebrated for putting environmental issues on the international legal agenda and driving the development of environmental law at the domestic level around the world. At the same …

Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero

Journal Articles

The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …

Humility, Climate Change, And The Pursuit Of Scientific Truth, John Copeland Nagle

Journal Articles

This Essay begins with the understanding that environmental law could not exist without science. The tolerable amount of pollution, the proximity of a species to extinction, and the threats presented by climate change are just some of the questions that environmental law depends on science to answer. Often environmental law insists that science alone is relevant to a particular regulatory action, such as an air pollution standard or an endangered species listing. It is not surprising, therefore, that many disputes about environmental law are really disputes about science.

Science, however, does not always yield the information that environmental law needs …

Striving For Resilience In Virginia's Transportation Sector, Elizabeth H. Davis, Jacob Haddad, Bryce Ballard

Virginia Coastal Policy Center

To help address the need for increased resiliency in the Commonwealth’s transportation sector, and in furtherance of the goals set forth in the VDOT [Virginia Department of Transportation] Resilience Plan, this white paper highlights green infrastructure and natural and nature-based features as ways to increase resilience for transportation infrastructure and mitigating impacts from climate change. Additionally, this paper describes potential methods of incorporating resilient best practices with respect to Virginia’s transportation infrastructure and planning decisions.

This abstract has been taken from the paper's Section I, Background.

On Foxes And Hedgehogs, Roger P. Alford

Journal Articles

This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

Constitutional Authority, Common Resources, And The Climate, Anthony Moffa

Utah Law Review

History, text, and precedent reveal an understudied and underutilized source of constitutional authority for environmental protection—the Property Clause of Article IV, Section 3. The Clause vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This work re-examines these words, the context in which they were written, and the limited judicial decisions interpreting them with an eye towards increased congressional reliance on the Property Clause in the face of daunting threats to our natural environment. Much prior scholarly explanation of the Property Clause focused …

The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey

All Faculty Publications

Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …

Waste And The Governance Of Private And Public Property, Tara Righetti, Joseph Schremmer

Faculty Articles

Common law waste doctrine is often overlooked as antiquated and irrelevant to modern law as a result of contract, corporate law, trust and estate planning, and public law. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just an historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, the …

Land, Legacy, And Law: Amending Cercla To Account For Environmental Contamination Of Tribal Cultural Resources, Alexander Toke

Cardozo Journal of Equal Rights & Social Justice

The note advocates for amending the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to enable Native American Tribes to recover damages for injuries to cultural resources. It argues that Tribal lands are disproportionately affected by environmental contamination and that current legal frameworks fail to address the unique cultural and spiritual significance of these resources.

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

A Sand County Tax Shelter: Syndicated Conservation Easements And Their Toll On The American Taxpayer, Jimmy Godin

Utah Law Review

The conservation easement is a powerful tool for conserving private land in the United States and beyond. Among the many incentives for encouraging conservation easement donations are tax deductions, which largely depend on the conservation value of the donated land. But groups of wealthy taxpayers, accountants, attorneys, and appraisers are manipulating the conservation easement tax framework and receiving large tax deductions for conservation easements that are practically worthless in a conservation sense—transactions known as 'syndicated conservation easements.' Syndicated conservation easements have generated substantial controversy, in part because they cost American taxpayers billions of tax dollars annually. While the Internal Revenue …

Fencing The Wind: Property Rights In Renewable Energy, Martin Lockman

Faculty Publications

In the face of global warming, the rapid development of carbon-neutral energy resources is utterly imperative. However, even environmentally friendly energy production like wind power has real externalities. Those who live in the shadow of wind turbines and suffer the immediate effects of wind development can be disenfranchised by municipal and state-level siting processes. Meanwhile, absent or ad hoc governance of windstreams prevents the efficient economic use of renewable energy resources when upwind development can doom a nascent windfarm. As windstream development intensifies, each of these conflicts will only become more frequent and more severe.

This article proposes a novel …

A Comparison Between The Eu Green Taxonomy And South Africa’S Green Taxonomy, Theodor Florian Cojoianu, Andreas G. F. Hoepner, Anh Vu

Research Collection College of Integrative Studies

Both South Africa and the European Union have introduced a common language and a clear definition of what is ‘sustainable’ through a taxonomy, a classification of environmentally sustainable economic activities, at the core of their sustainable finance ecosystem. Sustainable finance taxonomies provide transparency on what can be considered green and, hence, help investors, public authorities and policy makers make informed decisions, avoid green washing, and scale up sustainable investment. The purpose of the present report is to provide a comparison between the EU Taxonomy Regulation1 , including the respective EU Climate Delegated Act 2 and South Africa’s Green Finance Taxonomy3 …

Roundtable Two: Environmental Law Education: New Techniques In The Classroom And Beyond, Lincoln Davies, Karrigan Bork, Sarah Krakoff

Publications

No abstract provided.

Addressing Pollution From More Frequent, But Still Exceptional, Wildfires, Jonathan Skinner-Thompson, Kristi M. Smith

Publications

No abstract provided.

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

Part I begins with a brief sketch of the common law environmental protection that preceded and matured alongside the development of environmental regulation, including the rise of federal common law actions for interstate pollution. With an eye toward preemption, and its role within our federalist system, Part II sketches the system of state and local environmental regulation that served as the background for the adoption of federal environmental law. While federal environmental laws are quite comprehensive and far-reaching, they operate alongside state and local efforts, often in collaborative fashion, and rarely preempt state regulation or litigation. [...]

Parts III and …

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.

Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges And Opportunities, Korey Silverman-Roati, Romany M. Webb, Michael Gerrard

Faculty Scholarship

Carbon dioxide removal (“CDR”) will be needed, alongside deep emissions cuts, to achieve global temperature goals. According to a 2022 report by the Intergovernmental Panel on Climate Change, to keep global average temperatures within 1.5°C above preindustrial levels, carbon dioxide and other greenhouse gas emissions must reach net-zero by mid-century. Scientists have proposed a number of land- and ocean-based CDR techniques. This paper focuses on ocean fertilization, which involves adding iron or other nutrients to the ocean to stimulate the growth of phytoplankton that uptake carbon dioxide and convert it into organic carbon. The hope is that the organic carbon …

Three New Federal Laws Aid New York’S Compliance With Climate Goals, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The New York Climate Leadership and Community Protection Act of 2019 (CLCPA) requires total statewide greenhouse gas emissions to be reduced 40% from 1990 levels in 2030 and 85% in 2050, with a goal (aided by offsets) of 100% by 2050. It also requires 70% of electricity demand in 2030 to be met by renewables, and 100% from “zero emissions” sources (meaning renewables plus nuclear) in 2040.

Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

A 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.

A variety of CDR techniques, both terrestrial and ocean-based, have been …

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New …

New York Environmental Legislation In 2021, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

This annual survey of New York environmental legislation describes numerous new laws on single-use plastics, lead exposure, drinking water, fuel oil, climate resilience, solar energy, invasive species and other areas that were signed into law in 2021.

The Injustice Of 1.5°C–2°C: The Need For A Scientifically Based Standard Of Fundamental Rights Protection In Constitutional Climate Change Cases, Andrea K. Rodgers, Lauren E. Sancken, Jennifer Marlow

Articles

In 2015, signatories to the Paris Agreement agreed to the goal of keeping global temperature rise this century to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase even further to 1.5°C. Although the adoption of the Paris Agreement was in many ways a political triumph, seven years later many climate advocates are presenting the Paris target to judicial bodies as the de facto legal standard for fundamental rights protection in climate change cases. Yet, the history leading up to the signatories’ ultimate adoption of the Paris Agreement target suggests that the target is …

A Cost To Bear—Environmental Contamination And Eminent Domain, Evan C. Heaney

Seattle University Law Review

This Note advocates for Washington courts to adopt a system that universally allows evidence of environmental contamination on the private property taken in eminent domain proceedings. Part I of this Note discusses the history and progression of eminent domain and the broader constitutional roots of the Takings Clause. Part II explores Washington’s environmental remediation statute. Part III details the various approaches jurisdictions around the county have formulated to deal with this issue. Part IV argues Washington courts should adopt the inclusionary approach, which allows the introduction of environmental evidence in eminent domain proceedings.