Environmental Law Commons^™

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.

California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers

Public Land & Resources Law Review

In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.

No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

You have likely seen the bumper sticker, bold white text on a green background, reading “No Farms No Food.” The sticker is a product of, and in fact a tagline for, the American Farmland Trust. On the one hand, the point is obvious: As American Farmland Trust puts it, “[e]very meal on our plates [c]ontains ingredients grown on a farm. We all need farms to survive.” On the other hand, what seems like a plain statement on its face, “no farms no food,” is not so simple. Farms produce affordable food, they produce vast quantities of food, they produce healthy …

Lessons From Ten Years Of Household Recycling In The United States, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Recycling is perhaps the most prevalent pro-environmental activity at the household level. House-holds undertake recycling on their own initiative, though recycling efforts may be influenced by supportive nudges and, in some cases, laws that mandate recycling behavior. However, unlike pro-environmental efforts such as decreasing household energy usage, the success of the household's intention to recycle also hinges on governmental support. People cannot engage in recycling behavior on their own, as there must be some mechanism for collecting the recycled materials and converting them into useable commodities. The availability and nature of the recycling opportunities affect the household's ability to recycle …

"Un-Designating" Marine Sanctuaries?: Assessing President Trump's America-First Offshore Energy Strategy, Kevin O. Leske

William & Mary Environmental Law and Policy Review

No abstract provided.

Climate Change Litigation And Narrative: How To Use Litigation To Tell Compelling Climate Stories, Grace Nosek

William & Mary Environmental Law and Policy Review

No abstract provided.

Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith

Maine Law Review

Environmental issues have transformed the areas of law that I have taught for the last thirty-one years. A decade ago environmental law went virtually unmentioned in courses in property, domestic oil and gas law, and international transactions. By 1995 environmental concerns had moved from the periphery to center stage in these legal fields. To someone who teaches and writes about these subjects, the clearest manifestation of this development has been that virtually every first-year property casebook, mining or oil and gas law casebook, and international business transactions casebook, written in the last five years now includes segments on environmental law. …

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).

Foreword: Private, Environmental, Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is the invited foreword to the 2017 J.B & Maurice C. Shapiro Environmental Law Symposium issue of the George Washington Journal of Energy and Environmental Law. The 2017 symposium was dedicated to the issue of private environmental governance. This essay recognizes the incredible growth of private environmental governance as an area of study in the legal academy. In addition to introducing the various contributions to the symposium issue, this essay proposes that rather than merely studying "private environmental governance" as an independent concept, scholars should look closely at the individual components, "private," "environmental," and "governance," to better understand …

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Keeping The Clean Water Act Cooperatively Federal—Or, Why The Clean Water Act Does Not Directly Regulate Groundwater Pollution, Damien Schiff

William & Mary Environmental Law and Policy Review

No abstract provided.

Bike Lanes, Not Cars: Mobility And The Legal Fight For Future Los Angeles, Ernesto Hernandez-Lopez

William & Mary Environmental Law and Policy Review

In 2015, the City of Los Angeles adopted the controversial Mobility Plan 2035. The Plan restructures city transportation planning by emphasizing alternatives to cars for the next twenty years. Predictably, bike lanes became its most polemic aspect. The Plan envisions dramatic increases in bike lanes throughout car-obsessed Los Angeles. This bike lane increase was challenged in court, with objectors claiming that eliminating car lanes would increase congestion and compromise air quality. These arguments are ironic, since environmental justifications typically motivate bike projects.

The Mobility Plan illustrates how law supports and challenges bike lane projects. This Article argues that although this …

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

The Semicommons And Wisconsin Water Quality, David A. Strifling

Marquette Intellectual Property Law Review

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing …

Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …

Frankly My Dear, I Don’T Want A Dam: Refocusing Dam Removal Priorities To Protect Endangered Salmon Now, Skylar Sumner

Animal Law Review

Dams are a critical threat to salmon habitat and population recovery. While much progress has been made in the past few years with dam removal, the more quickly dams are removed, the greater chance that salmon can be restored to their historic ranges. In the Pacific Northwest, dams are a particular threat to salmon. Many regulatory tools can be used to bring dams into compliance, but there is often much resistance to these efforts. This Essay proposes that by targeting dilapidated private dams opposed to functional ones on public land, compliance or removal will be achieved with less resistance and …

Environmens Rea, Anthony Moffa

Faculty Publications

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the …

Federalism, The Environment And The Charter In Canada, Dayna Scott

Articles & Book Chapters

This Chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of ‘subsidiarity’, and the growing recognition of the ‘inherent jurisdiction’ of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and …

Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley

Articles by Maurer Faculty

The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental …

Coloring Outside The Lines: A Response To Professor Seamon’S Dismantling Monuments, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

In Dismantling Monuments, Professor Richard H. Seamon defends President Donald Trump’s recent proclamations modifying the boundaries of two national monuments, Grand Staircase-Escalante and Bears Ears, that Presidents Clinton and Obama each designated at the ends of their Administrations. Professor Seamon is not alone in making these arguments, as I am not alone in saying that Professor Seamon’s arguments, while well-intentioned, are wrong. He exaggerates the persuasive power of congressional silence. He elevates the importance of the statute’s original intent. Professor Seamon and I read the text and legislative history of the Antiquities Act differently—he sees unlimited presidential power, I …

Federalism Hedging, Entrenchment, And The Climate Challenge, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national …

Agency Coordination Of Private Action: The Role Of Relational Contracting, Karen Maire Bradshaw Schulz

Texas A&M Law Review

This Article explores the previously overlooked role of relational contracting in forming and maintaining public-private partnerships. Relational contracting generally describes firms using formal but legally non-binding agreements to collaborate on shared objectives. Why do parties invest in forming elaborate contracts that they do not—and cannot—enforce in court? Contract theory suggests that the very act of contracting is relationship-building; it generates commitment, trust, cooperation, a win-win philosophy, and strengthened communication. Writing down goals and intentions allows parties to clarify expectations while maintaining flexibility for unforeseen conditions. This Article demonstrates that agencies also use relational contracting— creating unenforceable written agreements to build …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2017, district courts decided several issues that the United States Court of Appeals for the Eleventh Circuit had never addressed. The United States District Court for the Middle District of Georgia concluded that the Clean Water Act's (CWA) prohibition on the discharge of pollutants into waters of the United States without a permit extended to discharges into groundwater with a "direct hydrological connection" to surface waters within the Act's scope. The court also concluded that a state-permitted land application system, whereby wastewater is sprayed onto fields as means of treatment and disposal, constituted a "point source" within the meaning …

Making Existing Homes Greener, James Smith

Scholarly Works

The environmental movement that has taken hold in the last half-century includes the objective of reducing the adverse impacts buildings have on the natural environment. In the United States, this has manifested itself in changes in the design and construction of buildings. Modern buildings-those built recently-perform better with respect to some, but not all, environmental criteria than older buildings. The most prominent characteristic is the efficiency of energy use for heating, cooling, and appliances.

Even when the combination of building codes and voluntary standards work effectively to promote the construction of new green homes, they cannot provide a solution with …

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big …

The Second Element, First Priority, Steven Ferrey

Suffolk University Law School Faculty Works

Leaders have knowingly made a significant miscalculation in basic math, which is pushing world climate policies to the “tipping points . . . that will alter regional and global environmental balances. . . irreversible within the time span of our current civilization.” Climate policy focuses primarily on only one warming chemical, carbon dioxide (CO2), the most prevalent greenhouse gas (GHG). The second most important warming chemical has been miscalculated and underestimated in its causative impact on climate, not by a few percent or by a rounding error, but by several hundred percent.

This article re-examines the science of climate warming …

The Production Function Of The Regulatory State, J.B. Ruhl, Jonathan R. Nash, James Salzman

Vanderbilt Law School Faculty Publications

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we …

Transforming (Perceived) Rigidity In Environmental Law Through Adaptive Governance, J.B. A. Ruhl, Hannah Gosnell, Brian C. Chaffin, Craig A. Arnold, Et Al.

Vanderbilt Law School Faculty Publications

The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal hammer forcing federal agencies to consider endangered species needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated …

Environmental Injustice And The Problem Of The Law, Uma Outka

Maine Law Review

Over the past fifteen years, legal academia has produced a sizeable body of scholarship on the widely acknowledged problem of environmental injustice. Although there have been positive responses in the policy arena, no similar level of concern is evident in the courts. Most legal claims directly addressing environmental injustice fail, recent developments in civil rights case law are discouraging, and current constructions of environmental laws are proving theoretically inadequate to protect communities already subjected to disproportionate toxic exposure or threatened by new pollution. This Comment explores the state of the law of environmental justice and offers an analysis of why …