Environmental Law Commons^™

Wasting Our Options? Revisiting The Nuclear Waste Storage Problem, Randall W. Miller

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Deep Water Offshore Oil Exploration Regulation: The Need For A Global Environmental Regulation Regime, Naama Hasson

Washington and Lee Journal of Energy, Climate, and the Environment

Government regulation of deepwater offshore explorations has found it either difficult to evaluate the environmental impact, or too costly to perform the required review.1 Corporate self-regulation without effective government oversight will not adequately reduce the risk of accidents within the offshore oil exploration industry, nor will it ensure that corporations prepare effectively to respond to a major spill. The potential, near-term, financial benefit for the oil company prevails over the lowprobability risk that a major spill will occur. Recognizing that current domestic regulation lacks effective, continuous monitoring of complex offshore operations, another form of regulation appears necessary. If already-emerging principles …

Fractured Focus: Tribal Energy Development And The Regulatory Contest Over Hydraulic Fracturing In Indian Country, Mitchell Davis

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Environmental Protection Or Mineral Theft: Potential Application Of The Fifth Amendment Takings Clause To U.S. Termination Of Unpatented Mining Claims, Beckett G. Cantley

Washington and Lee Journal of Energy, Climate, and the Environment

The mining claim patent process was much less rigorous in the early days of mining when nearly anyone willing to expend the $500 on “patent improvements,” pay for a mineral survey, and pay the statutory purchase price could patent a mining claim very easily. Over time, the United States government has grown increasingly reluctant to patent mining claims and to allow mining activities to occur on unpatented federal public domain lands. The U.S. government argues that its reluctance to allow mining is simply an environmental concern. However, the U.S. tightening of private mining upon federal lands also coincides with a …

New Corporate Forms And Green Business, Antony Page

William & Mary Environmental Law and Policy Review

You want to start a business: not just an ordinary business, producing ordinary social benefit, but a dual-mission business that will both make a profit and benefit the environment. This green business, you expect, will sometimes face trade-offs between the missions, in the sense that sometimes owners’ wealth and profit will have to be sacrificed to pursue environmental benefits. You’re optimistic, in that you hope the business will find outside investors and will scale up easily. Moreover, you don’t want to lie or even dissemble about your motives or about the business’s actions. You want to be both authentic and …

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Faculty Scholarship

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

Book Review, David R. Boyd, The Environmental Rights Revolution: A Global Study Of Constitutions, Human Rights, And The Environment, Bradford Mank, Suzanne Smith

Faculty Articles and Other Publications

David R. Boyd’s book entitled, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, provides a comprehensive overview of nations that have incorporated the right to a healthy environment in their constitutions. Throughout his research, Boyd analyzes the effectiveness of environmental protection provisions in national constitutions and seeks to determine whether constitutional provisions guaranteeing the right to a healthy environment have measurable, positive effects on the environment. His wide-ranging compilation and analysis of environmental rights provisions in numerous countries is an important contribution to international human rights literature. Although Boyd explains that treating the right …

Conservative Principles For Environmental Reform,, Jonathan H. Adler

Faculty Publications

Major environmental policy reform is long overdue. The current regulatory architecture was erected in the 1970s. Since then meaningful reforms have been few and far between. A few reforms and regulatory expansions were adopted in the 1980s, and Congress enacted significant reforms to the Clean Air Act in 1990. Only the most minor environmental bills have been enacted since then.

Persuasion Treaties, Melissa (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

Shockwave: Lender Liability Under Cercla After United States V. Fleet Factors Corporation, Nicholas M. Kublicki

Pepperdine Law Review

No abstract provided.

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith W. Rizzardi

William & Mary Environmental Law and Policy Review

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

Cows, Congress, And Climate Change: Authority And Responsibility For Federal Agencies To End Grazing On Public Lands, Marya Torrez

Celebrating WCL Student Authors

No abstract provided.

Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton

Faculty Publications

No abstract provided.

Blood Forests: Post Lacey Act, Why Cohesive Global Goverance Is Essential To Extinguish The Market For Illegally Harvested Timber, Sean H. Waite

Seattle Journal of Environmental Law

No abstract provided.

Rulemaking As Politics, Thirty Years On, Michael Herz

Articles

No abstract provided.

Effectiveness Of Environmental Law: What Does The Evidence Tell Us?, Michael Faure

William & Mary Environmental Law and Policy Review

No abstract provided.

Environmental Law, Eleventh Circuit Review, Travis M. Trimble

Scholarly Works

In 2011, the United States Court of Appeals for the Eleventh Circuit held that the intervenors lacked standing to challenge on appeal a consent decree entered into by the main parties and approved by the

district court in a Clean Water Act case. The United States District Court for the Northern District of Alabama, in a Clean Air Act case, excluded on Daubert grounds testimony of the government’s experts

purporting to establish that repair and replacement projects at several power plants in Alabama had in fact been major modifications to the plants that resulted in increased air pollutant emissions, which …

An Ecosystem Management Primer: History, Perceptions, And Modern Definition, Kalyani Robbins

Akron Law Faculty Publications

This chapter will first take the reader on a journey through the history of ecosystem management, providing a summary of how it has grown and developed over the past two decades. This will only naturally lead to the next part of the chapter, which focuses on the present understanding of how ecosystem management is to be defined and applied, as well as the variety in perceptions of this modern understanding. Finally, it will serve as an introduction to the remainder of the book, previewing the various contributions collected here, offered by some of the best-known scholars in the field of …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Akron Law Faculty Publications

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Chair's Message, Michael Herz

Articles

No abstract provided.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Breaking The Transsubstantive Pleading Mold: Public Interest Environmental Litigation After Ashcroft V. Iqbal, Scott Foster

William & Mary Environmental Law and Policy Review

No abstract provided.

The Future Of Climate Change Litigation After Aep V. Connecticut, Amanda Leiter, Rick Faulk, Eric Lasker, Mike Myers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Trick Or Treat: The Ethics Of Mediator Manipulation, Jim Coben, Lela P. Love

Articles

Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably "manipulative," in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is …

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

Stopping Nuclear Power Plants: A Memoir, Louis J. Sirico Jr.

Working Paper Series

A memoir of the author's involvement in the anti-nuclear power movement.

Scrap Tires, Jacquin Milhouse, Terri Morse

Student Environmental Law Films/Golden Tree Films

This film discusses the problem of how to dispose of used tires.

Six Stages In The History Of Environmental Law, Nat Keller, Sasha Millard, Emily Rohm

Student Environmental Law Films/Golden Tree Films

The film “Six Stages in the History of Environmental Law” won the University of Maryland School of Law's “Golden Tree” award for Best Use of Special Effects. Nat Keller, Sasha Millard, and Emily Rohm used moving stick figures against a backdrop of historic photos to illustrate the history of environmental law as described in Professor Percival’s casebook.

Believe, Taggart Hutchinson, Shauna Stringham, Beth Grasso, Will Tilburg

Student Environmental Law Films/Golden Tree Films

The student created film “Believe,” a parody of the notion of clean coal, won the “Golden Tree” for Best Use of Humor. Produced by Taggart Hutchinson, Shauna Stringham, Beth Grasso and Will Tilburg, the film featured Tagg showering with coal-based soap, using a coal lightbulb, and cooking with coal.

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …