Environmental Law Commons^™

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

ExpressO

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics …

Difused Surface Water: Reasonable Use Has Become The Common Enemy, Wendy B. Davis

ExpressO

Diffused surface water, caused by precipitation, should be treated as a necessary asset to replenish aquifers used for drinking water, and not as waste to be disposed of by landowners. Groundwater aquifers were created, and can only be replenished, by precipitation that is allowed to seep underground. Ninety-nine percent of the drinking water for people in rural areas of America comes from groundwater aquifers. These aquifers are in danger of being contaminated or depleted, which could result in severe water shortages very soon. Legislators have failed to enact a comprehensive system to regulate the use of aquifers, relying instead on …

Fourth Circuit Summary, Paul T. Eubanks

William & Mary Environmental Law and Policy Review

The Fourth Circuit Summary, published at least once a year, provides a synopsis of important recent environmental decisions decided by the United States Court of Appeals for the Fourth Circuit. The summary does not cover every environmental decision of the Fourth Circuit, but only those cases that the editors believe to be of most interest to subscribers. The cases discussed below were decided in 2002 and 2003.

Slouching Toward Eden: The Eco-Pragmatic Challenges Of Ecosystem Revival, In Symposium, The Pragmatic Ecologist: Environmental Protection As Jurisdynamic Experience, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Environmental Law With Chinese Characteristics, Eric W. Orts

William & Mary Bill of Rights Journal

No abstract provided.

Reaching Out To The Rule Of Law: China's Continuing Efforts To Develop An Effective Environmental Law Regime, Richard J. Ferris, Hongjun Zhang

William & Mary Bill of Rights Journal

No abstract provided.

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an …

The Current Controversy Regarding Tmdls: Contemporary Perspectives "Tmdls And Pollutant Trading", Ann Powers

Elisabeth Haub School of Law Faculty Publications

The article first summarizes CWA requirements relevant to TMDLs and outlines elements of an effective trading program. It then examines the program recently established by the State of Connecticut to allow trading of nitrogen credits among sewage treatment plants on Long Island Sound to achieve an established TMDL, and the CWA issues presented. Finally, it gives a brief comparison to the program being designed for the Chesapeake Bay, for which no TMDL has been established. Current brief descriptive summaries of several often cited programs are appended.

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental norms are observed because they are norms about how people respect each other and the natural systems that sustain human communities. Environmental norms are basic to human well-being. They arise out of the human condition, not unlike human rights laws. Environmental norms emerge from the fact that humans exist within ecosystems, and human society is embedded in the natural systems in which they have evolved; environmental norms are grounded in an objective reality, and scientists can measure the consequences of observing--or failing to observe--those norms. The provisions of environmental norms, therefore, exist not merely as pronouncements of governments, applied …

Environmental Law, Congress, And The Court's New Federalism Doctrine, Christopher H. Schroeder

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

The Environmental Commerce Clause, Christine A. Klein

UF Law Faculty Publications

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause—the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect.

This study supports two …

Overlooked Issues In The "Diligent Prosecution" Citizen Suit Preclusion, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

Congress sought to attain full compliance with environmental statutes. It reasoned that multiple enforcers would provide more comprehensive and effective enforcement than one enforcer. Congress therefore empowered the Environmental Protection Agency (EPA), the states and private citizens as enforcers of the statutes. However, Congress worried that successive actions by multiple enforcers could bring disruption and conflict to enforcement litigation and remedies. It therefore included in the citizen suit provision of each statute a limited, three-element notice, delay, and bar preclusion device to manage successive citizens' enforcement against the violations already subject to government enforcement. The device generally bars citizens from …

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …

Treaties In Collision: The Biosafety Protocol And The World Trade Organization Agreements, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

In the event of a conflict between the requirements of the Biosafety Protocol, a multilateral agreement governing the trade in genetically modified organisms, and the requirements of the General Agreement on Tariffs and Trade and associated agreements (collectively WTO Agreements), which treaty's requirements prevail? This question lies as the legal heart of the perceived conflict between trade globalization and environmental protection. This issue is particularly timely given the present trade dispute between the United States and European Union over the European Union’s restrictions on the importation of genetically modified agricultural commodities.

In this piece, I analyze the relationship between these …

Recent Developments Concerning Environmental Law And Agriculture, Linda A. Malone

Faculty Publications

No abstract provided.

Senator Edmund S. Muskie And The Dawn Of Modern American Environmental Law: First Term, 1959-1964, Robert F. Blomquist

William & Mary Environmental Law and Policy Review

No abstract provided.

Legal Ethics For Environmental Lawyers: Real Problems, New Challenges, And Old Values, Sanford M. Stein, Jan M. Geht

William & Mary Environmental Law and Policy Review

No abstract provided.

Fourth Circuit Summary, Anne C. Dowling, Laurina Spolidoro

William & Mary Environmental Law and Policy Review

No abstract provided.

What Lawmakers Can Learn From Large-Scale Ecology, Fred P. Bosselman

All Faculty Scholarship

No abstract provided.

Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

ASEAN was founded with the 1967 Bangkok Declaration in order to encourage stable relations among its original member states, i.e. Indonesia, Malaysia, Singapore, Thailand and the Philippines, and to resist destabilizing influences from the war in Viet Nam. The means to stability was to promote economic, social and cultural cooperation in the spirit of equality and partnership. A formal treaty system was not required. As the Viet Nam war ended, ASEAN held its first Summit Meeting in Bali (1976), followed by the 1977 Summit in Kuala Lumpur, where cooperation on regional industrializations was launched. In this first phase of cooperation, …

Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental management has emerged as an important element of governance in practically every nation. This was not the case before the United Nations convened the 1972 Conference on the Human Environment in Stockholm. After Stockholm, nations learned to build environmental ministries and work across sectors nationally, and discovered how difficult it is to reshape entrenched national practices in order to curb pollution and conserve natural resources. With growing experience and knowledge, nations came to realize that no one government alone could safeguard the environment, and that international cooperation would need to be enhanced.

Water Quality Trading: Bringing Market Forces To Bear In Watersheds, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

In Praise Of Parochialism: The Advent Of Local Environmental Law, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explains the role that local governments have assumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state level. Part II reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how …

A Generational History Of Environmental Law And Its Grand Themes: A Near Decade Of Garrison Lectures, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

I have been privileged to hear, enjoy and learn from the talks of each of our Garrison Lecturers during the last eight years, as well as our discussions with them here today. In preparation for my duties as a summarizer, I studied their talks, printed in our Pace Environmental Law Review. I was delighted to find that the body of their commentary is far more than the sum of its parts. Together our lecturers take us on a grand journey through the history of modern environmental law, its heroes and villains, its accomplishments and its weaknesses. Together they sound all …

Street Crime, Corporate Crime, And Theories Of Punishment: A Response To Brown, Kyron J. Huigens

Articles

In this response to Darryl Brown's important article, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, Professor Huigens argues that Brown has chosen the wrong theory of punishment on which to rest his case for a more regulatory, less punitive, approach to street crime. Brown has chosen the best, most sophisticated consequentialist theory of punishment, as developed principally by Dan Kahan. However, consequentialist punishment theory of any kind has a significant drawback: it has no plausible conception of criminal fault. As a result, Brown is constrained to argue that the language of desert and retribution should be muted …

Renewable Energy Sources For Development, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

Renewable energy resources hold great promise for meeting the energy and development needs of countries throughout the world. This promise is particularly strong for developing countries where many regions have not yet committed to fossil fuel dominance. Solar photovoltaic and solar thermal technologies are particularly advantageous for serving the two billion people in rural areas without grid electricity. Modern biomass energy is attractive because it uses locally available agricultural wastes. Wind energy and small hydroelectric resources also are mature technologies well suited to developing countries. Such renewable resources are far more economical than traditional energy resources, especially where the costs …

Dean's Foreword, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

This issue of the Pace Environmental Law Review contains a description of this emerging field of law and the response of the academic and legal community to it. As Professor Nolon reports in his introduction, we found eloquent coherence in these laws and saw how they fit together to form a comprehensive whole. We examined state statutes that authorized local governments to adopt environmental laws and discovered that they were diverse in nature but prevalent in many states. We also found state court decisions that upheld local environmental laws against the challenges of regulated property owners. We were troubled by …

Introduction: Considering The Trend Toward Local Environmental Law, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In this symposium issue of the Pace Environmental Law Review we take a close look at the advent of local environmental law. With the editors of the Review and a number of distinguished scholars and practitioners, we define what this new field is and consider what it means for public policy and the practice of law. The intent of this issue is to invite lawyers, scholars, practitioners, legislators, regulators, students, and citizen leaders to consider this burgeoning new field: local environmental law. It is my task to introduce the reader to the field and frame the issues for its further …

On Revolution And Wetland Regulations, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Myths And Truths That Ended The 2000 Tmdl Program, Linda A. Malone

Faculty Publications

No abstract provided.