Environmental Law Commons^™

Editors' Note, Rachel Keylon, Meghen Sullivan

Sustainable Development Law & Policy

For more than two decades, the Sustainable Development Law and Policy Brief (SDLP) has published works analyzing emerging legal and policy issues within the fields of environmental, energy, sustainable development, and natural resources law. SDLP has also prioritized making space for law students in the conversation. We are honored to continue this tradition in Volume XXIII.

The Environmental Citizen: Participant And Problem, Monika U. Ehrman

Faculty Journal Articles and Book Chapters

Citizen participation is a cornerstone of modern American environmental governance. Public participation in decision-making, monitoring, and enforcement increases regulatory transparency, community engagement, and ensures policymakers are informed at the local level. To William D. Ruckelshaus, the first (and fifth) Administrator of the U.S. Environmental Protection Agency (EPA), there was no role as powerful or indispensable. In his inspiring essay, The Citizen and the Environmental Regulatory Process, Ruckelshaus championed the role of the participant citizen, whose involvement in multifaceted environmental decision-making provided legitimacy to regulatory proceedings. Throughout his storied career, Ruckelshaus returned to this core ideology that public participation in …

Waste And Chemical Management In A 4°C World, Michael B. Gerrard

Faculty Scholarship

Many chemicals and hazardous substances are kept in places that can withstand ordinary rain, but not severe storms or floods. If these events occur and the chemicals are released, people and the environment may be endangered. This Article discusses the hazards posed to chemical and waste disposal facilities by extreme weather events that would be worsened as a result of climate change, and how U.S. laws do (or do not) deal with these hazards; and considers how the law would need to change to cope with what would happen to these facilities in a potentially 4°C world. It is adapted …

Nature Deserves Rights, Too: The Case For A ‘Rights Of Nature’ Constitutional Amendment, Michelle Mandler

Journal of Civil Rights and Economic Development

(Excerpt)

Picture this: Every day, millions of Americans enjoy the great outdoors. People of all ages dive into cool, blue oceans and babbling rivers across the United States. Others visit local and National parks, hiking steep mountains and running through green fields sprinkled with tall trees and sweet-smelling flowers in every color. They pick and snack on apples and berries along their paths, breathing in the crisp outdoor air. Birds soar overhead. Insects buzz and flutter through the breeze. Sunshine gleams down upon the earth.

Now, picture this: The surrounding environment is actually deteriorating— silently suffering—and harming these people all …

Hidden In Plain Sight: The Dangers Of Environmental Protections Waivers, Olivia Stevens

Indiana Law Journal

When enacting both statutory and regulatory environmental protections, Congress and various agencies have recognized that emergency situations could arise that would require flexibility in the application and enforcement of those protections. Incorporating waivers into such protections provides that flexibility. However, the current state of waivers leaves them vulnerable to abuse. In this Note, I explore how a lack of procedural and substantive safeguards allows the inappropriate use of waivers to further administrative agendas in a way that poses serious risks to both environmental and human health. I then suggest remedial measures available to Congress that would strengthen environmental protections while …

Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson

Pepperdine Law Review

Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes. In 2020, the Environmental Protection Network, …

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Don't Blame The Flint River, Clifford Villa

Faculty Scholarship

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail
discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article briefly examines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along …

Clean Air Act Section 115: Is The Ipcc A “Duly Constituted International Agency”?, Adam D. Orford

Faculty Scholarship

Does the Environmental Protection Agency’s (“EPA”) receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency’s duties under Section 115 of the Clean Air Act? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA’s imposition of nationwide greenhouse gas regulation to combat climate change. One way to do so is to trigger EPA’s duties “upon receipt of reports, surveys or studies from any duly constituted international …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Polluters Paradise: The Dark Canon Of The United States Supreme Court In Pollution Control Law, Oliver A. Houck

American University Law Review

This Article is the last in a series of four articles exploring the Supreme Court's destructive legacy on environmental protection in the United States. This Article specifically explores the relationship between the Supreme Court and pollution through the lens of four landmark cases. Perhaps unsurprisingly, these cases together evince the Court’s tendency to distort both facts and law to reach outcomes that will benefit industrial polluters and emitters alike.

In the first case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court disregarded EPA regulations banning the discharge of toxic materials into waters to approve a pollution-heavy mining operation. …

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? …

Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Treading Water: How Citizens, States, And The Environmental Protection Agency Can Restore Proper Criminal Enforcement Of The Clean Water Act's National Pollutant Discharge Elimination System, Marley Kimelman

Washington Journal of Environmental Law & Policy

Upon the passage of the Clean Water Act (“CWA”) in 1972, primary responsibility for protecting the United States' water quality and preventing water pollution shifted from the states to the Environmental Protection Agency (“EPA”). The program at the heart of the Clean Water Act, the National Pollutant Discharge Elimination System (“NPDES”), requires anyone who discharges pollutants into the waters of the United States to abide by the terms of a permit issued under the program. If a discharge occurs in violation of the permit or without a permit, and prosecutors are able to prove the responsible party acted with ordinary …

The Legal And Administrative Risks Of Climate Regulation, Jonathan Adler

Faculty Publications

Dramatic and rapid reductions in greenhouse gas emissions are necessary to stabilize atmospheric concentrations of greenhouse gases (GHGs) at acceptable levels. Prioritizing federal environmental regulation as the primary means of achieving these goals may be a strategic mistake. Regulatory mandates, particularly if based upon existing statutory authority, will be vulnerable to legal attack, obstruction, and delay. Climate legislation can reduce the legal risks and accelerate the rate of policy implementation, but only on the margin. Adopting regulatory controls, sector-by-sector, technology-by-technology will be immensely resource intensive for the EPA and other federal agencies. Even with authorizing legislation, federal regulatory strategies may …

Measuring Environmental Justice: Analysis Of Progress Under Presidents Bush, Obama, And Trump, Mollie Soloway

Student Articles and Papers

No abstract provided.

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

Faculty Scholarship

This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should “do something” about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Fish Don't Litter In Your House: Is International Law The Solution To The Plastic Pollution Problem?, Taylor G. Keselica

Pace International Law Review

This article addresses the complex issue of plastic pollution—focusing on ocean plastics. Specifically, this article examines the ocean plastics problem, critiques current binding and non-binding international environmental law surrounding ocean plastics, hazardous wastes, and pollution, and proposes a more effective solution to the ocean plastics problem. Section I provides a basic history of the creation of plastics and discusses plastics as they are used today. Section II considers the concerns surrounding ocean plastics, focusing on impacts of plastic on marine ecosystems as well as human health effects. Section III, IV, and V discuss the ongoing attempts to address the ocean …

Asarco Llc V. Atlantic Richfield Co., Llc, Taylor A. Simpson

Public Land & Resources Law Review

In 2009, Asarco reached a settlement agreement with the Environmental Protection Agency for the arsenic-contaminated East Helena lead smelting facility. As part of the settlement, Asarco was responsible for $111.4 million in cleanup and remediation expenses. Following this payment, Asarco brought a contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act against Atlantic Richfield. Finally, in 2020, the Ninth Circuit Court of Appeals held that Asarco’s remediation expenses of $111.4 million were not eligible for contribution because the costs were not fully incurred. The Ninth Circuit stated that only incurred or concrete, non-speculative future costs can be eligible …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the reasons local governments find difficulty influencing pipeline-routing decisions. For example, federal law controls interstate natural gas pipeline permitting, which is complicated and inaccessible. State law, particularly in Ohio, heavily favors utilities, in part by preempting local efforts to make local decisions regarding oil and gas development. Finally, the information gaps are enormous between what local governments need to influence pipeline-routing decisions and what is accessible.

This Article addresses barriers to local influence by discussing the efforts of citizens and local governments to influence the routing of NexusSpectra's natural gas transmission pipeline, which was recently constructed and …

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.

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 …

Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. Mcculloch

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Tuesday, December 3, 2019, at 11:00 a.m. in the Supreme Court Building in Washington, D.C. Lisa S. Blatt will likely appear for the Petitioner. Joseph R. Palmore will likely appear for the Respondents. Solicitor General Noel J. Francisco will likely argue on behalf of the United States.

Water, Water, Anywhere?: Protecting Water Quantity In State Water Quality Standards, Julie F. Youngman

Indiana Law Journal

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only …

This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability Under Cercla, Kiersten E. Holms

Washington and Lee Law Review

Part II of this Note begins by providing a brief overview of the background and goals of CERCLA. Part II also provides an examination of the issue of ownership liability under CERCLA and recounts the federal courts’ difficulty in applying ownership liability. Part II then describes how the federal government’s “bare legal title” argument arose out of the confusion surrounding ownership liability in CERCLA litigation. Part III moves on to examine the recent trend in CERCLA litigation rejecting the federal government’s bare legal title argument, thus holding the federal government liable as an owner based on its possession of legal …

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

Law & Economics Working Papers

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 …

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.