Environmental Law Commons^™

Climate Nationalism, Gabriel Weil

Scholarly Works

Climate change is a global commons problem. The costs of emissions in any given country are mostly borne by foreigners. Absent strong measures to overcome this dynamic, pursuit of national self-interest will lead people and countries to underinvest in decarbonization, relative to what's best for the world as a whole. And we do see such underinvestment. Many countries are not on track to meet their Paris Agreement pledges, and those pledges, even if met, are not ambitious enough to meet the headline temperature stabilization goals of the agreement. This is the fairly banal pursuit of national interest in the climate …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

Climate Finance Needs More Market Discipline, Richard Morrison

FIU Law Review

The market for climate and sustainability-driven products and services is potentially very large and thus attractive to many investors and entrepreneurs. However, its current reliance on public subsidies and capital flows is a significant weakness that often goes unacknowledged.

From Shield To A Sword: Using The Dormant Commerce Clause To Challenge State Laws Promoting Fossil Fuels, James Crisafulli

University of San Francisco Law Review

No abstract provided.

Corporate Climate Targets: Science, Discretion, And Climate-Washing, Nadav Orian Peer

Publications

The use of corporate climate targets has exploded in recent years and now encompasses many of the world's largest and most profitable companies. In a corporate climate target, a company voluntarily commits to reducing its emissions in line with climate science and the Paris Agreement. The broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise "climate-washing" concerns; i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets and explores different types …

Human Rights Risks In Clean Energy Supply Chains: Racial Capitalism, Critical Minerals, And Corporate Responsibility, Erika George

Faculty Scholarship

This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court …

Trump Has A Point On Trade, William Snape

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Transitioning To Regenerative Agriculture: One "Net-Zero" Pledge At A Time, Alexia Brunet Marks

Publications

As climate change intensifies, food sector multinational companies (MNCs), like Nestlé; Mars, Inc.; Unilever; PepsiCo; and Danone, face increasing pressure to reach net-zero by 2050, whereby they would reduce and ultimately eliminate carbon dioxide emissions from their supply chains by 2050. Carbon dioxide emissions are a major business liability, decreasing a firm’s value an average of $212,000 for every one thousand metric tons produced. As companies seek to align their pledges with regional, national, and subnational climate goals, they are legally required to comply with a growing number of disclosure rules for foods entering the United States and the European …

New York Environmental Legislation In 2024, Michael B. Gerrard

Faculty Scholarship

In 2024, New York State enacted several laws aimed either at dealing with the adverse impacts of climate change such as extreme heat and increasingl severe and frequent storms or at helping to mitigate greenhouse gas emissions to avoid or minimize the adverse impacts. The final bill signed by Governor Kathy Hochul in 2024 was the most high-profile of these laws — the Climate Change Superfund Act, which will require fossil fuel companies to pay for adaptation measures.

Other new laws last year related to extreme heat in schools and prisons, food waste, expanded polystyrene containers, community gardens, and native …

Supplements To Environmental Impact Statements: Implementation Of The Standards Set By The Council On Environmental Quality, Dale Lynn Gavin

Maine Law Review

Environmental impact statements (EISs) are prepared before any major federal project is undertaken, as required by the National Environmental Policy Act (NEPA). An original EIS may become obsolete if a Project's operation later changes in any significant way, or if previously unsuspected environmental impacts are later discovered. When either of these two events occurs, compliance with NEPA demands that a supplemental EIS be prepared to focus on the changes. The decision whether a supplement is required in any particular situation is guided by standards set by the Council on Environmental Quality (CEQ). In addition, some federal agencies have promulgated their …

Predicting (And Protecting) The Future Of Environmental Law After Loper Bright, Sanne H. Knudsen

Articles

Nostradamus, the sixteenth-century French philosopher and seer, is said to have predicted many things: the French Revolution, the rise of Napoleon, the Great Fire of London, the rise of Adolf Hitler, the 9/11 attacks on the World Trade Center. Of course, there are skeptics. The predictions, after all, tended to be “cryptic and vague.”

Still, if alive today, I wonder what quatrain Nostradamus might write—and what elusive meaning his fans might try to decode—about the future of environmental law in the United States. Would he predict that environmental law will be ravaged by the binary politics of the moment, reduced …

Environmental Law In Trump’S Second Term, Michael B. Gerrard

Faculty Scholarship

Donald Trump’s victory in the Nov. 5, 2024 election and Republican control of both the Senate and the House (if that happens) will mean a reversal of much of the environmental progress under the Biden administration, just as the 2016 election reversed large parts of the Obama environmental legacy. However, rapid advances in the technology and economics of clean energy have created a momentum that can be slowed but not stopped. States can adopt their own stronger standards despite what happens in Washington, with a few exceptions, and can use their procurement power and their pension funds’ investment clout to …

Addressing Energy Insecurity Upstream: Electric Utility Ratemaking And Rate Design As Levers For Change, Emma Shumway, Diana HernáNdez, QëNdresa Krasniqi, Vivek Shastry, Abigail Austin, Michael B. Gerrard

Faculty Scholarship

Millions of Americans are impacted by energy insecurity each year, in part due to unaffordable and inequitable electricity rates. The electric ratemaking process presents opportunities to confront issues of affordability and equity or to instead entrench traditional approaches. State legislatures, public utility commissions (PUCs), and advocates all play vital roles in making the former a reality. Historically, ratemaking has been criticized as an insular and highly technical process that caters to utilities rather than customers. But states like California and New York are making strides by broadening PUC legal authority to include explicit consideration of equity issues, adjusting incentives and …

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Tennessee Journal of Law and Policy

No abstract provided.

General Discretion Under Maine's Site Location Of Development Law, Tybe Ann Brett

Maine Law Review

The 1960s brought nationwide concern about the environmental impact of post-World War II development and industrial growth. Efforts to protect the environment took many different forms. Part of Maine's response to the growing need for environmental improvement measures was the Legislature's enactment in 1970 of the Site Location of Development Law (Site Law). The Site Law gives the state control over the location of developments that would substantially affect the environment, rather than leaving such decisions to single towns and individual developers. The Law also addresses concerns beyond those dealt with in air and water pollution control legislation. The Site …

Living The Good Life In The Anthropocene, Kevin J. Lynch, Karrigan Börk, Karen Bradshaw, Rebecca Bratspies, Bruce Carpenter, Cinnamon Carlarne, Robin Kundis Craig, Sarah Fox, Josh Galperin, Francis Hicks, Keith Hirokawa, Ruhan S. Nagra, Michele Okoh, Jessica Owley, Amber Polk, Melissa Powers, Shannon Roesler, J .B . Ruhl, Danielle Stokes, Anastasia Telesetsky

Sturm College of Law: Faculty Scholarship

The Stockholm Resilience Centre has concluded that the number of "planetary boundaries" we are crossing has increased from three in 2009, when the Centre's researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between "safe" and "just" planetary boundaries raises questions regarding how to conceptualize the "good life." In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the "good" as well as the various elements necessary to …

Approaching A U.S. Regulatory Framework For Sporeless Seaweed Biotechnology, Gabriela Martinez, Terra Bowling, Catherine M. Janasie, Charlie Doering-Powell, Amalia Aruda Almada

William & Mary Environmental Law and Policy Review

Seaweed farming is the fastest-growing aquaculture sector in the United States. The development of sterile, selectively bred (sporeless) seaweed aims to support the economic viability of future large offshore seaweed operations and minimize the environmental risks of these operations to wild seaweed beds. Farmers have implemented analogous breeding techniques to control and enhance most terrestrial crops and common aquaculture products (e.g., oysters and carp). This Article draws from existing federal and state aquaculture policies to explore four pillars critical to a future sporeless seaweed regulatory framework: ensuring maintained sterility, tracing the geographic origin of seed, securing offshore permits, and facilitating …

The Interpretation Of Environmental Statutory Ambiguity: A Comparative Analysis Between Ecuador And The United States, Fernando Muñoz-Dominguez

William & Mary Environmental Law and Policy Review

This Article examines through a comparative analysis the judicial interpretation of ambiguity in environmental statutes between the jurisdictions of the Republic of Ecuador and the United States of America. By analyzing the fundamental principles and doctrines guiding the interpretation of environmental laws in cases of ambiguity and vagueness in both nations, this Article draws out their inherent merits, drawbacks, and criticisms. A review of jurisprudential precedents provides a nuanced understanding of their practical applications.

In the Ecuadorian context, particular attention is given to the principles of environmental favorability, and in dubio pro natura, all of which are recognized in …

Rewriting Nepa: Statutory Continuity And Disruption In A Polarized Era, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

For decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.

This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the …

Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo

Georgetown Law Faculty Publications and Other Works

The climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

Articles

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

The Materiality Of Esg Information: Why It May Matter, Joan Macleod Heminway

Scholarly Works

No abstract provided.

Annual Seqra Review: Project Applicants Winning More Cases, Michael B. Gerrard

Faculty Scholarship

New York courts are showing impatience with local governments that withhold or stretch out approval of projects without valid environmental grounds. In seven cases last year under the State Environmental Quality Review Act (SEQRA),courts overturned municipal actions that rejected projects or delayed approvals. In all, the courts decided 46 cases under SEQRA in 2023. Where the government agency had decided that an environmental impact statement (EIS) was not needed, that choice was upheld in 23 cases and overturned in eight. Where an EIS had been prepared, the EIS was upheld in 11 and found inadequate in only one. The remaining …

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

UMKC Law Review

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …

Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto

UMKC Law Review

Groundwater serves as a vital, limited resource for people all over the world. The United States Geological Survey reports that about 140 million people in the United States rely on groundwater for drinking water, of those, almost 43 million people rely on groundwater from domestic (or private, non-public supply) wells. In rural areas, groundwater is often the only available source of drinking water, making protection of groundwater quality in these regions a paramount concern.

Mirroring the various state regulatory approaches to groundwater management and protection, much of the recent media coverage of groundwater in the West focuses on water allocation …

Fischman Elected To Defenders Of Wildlife Board, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

An environmental law professor at the Indiana University Maurer School of Law has been elected to the board of directors of a national conservation organization dedicated to the protection and restoration of imperiled species and their habitats in North America.

Rob Fischman, the George P. Smith, II Distinguished Professor of Law and an adjunct professor at the O’Neill School of Public and Environmental Affairs, was elected to the Defenders of Wildlife board on Tuesday, May 21.

His teaching, research and service align closely with the organization’s conservation vision of a future where diverse wildlife populations in North America are secure …

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

Natural Resources In The Arctic: The Equal Distribution Of Uneven Resrouces, Ganeswar Matcha, Sudarsanan Sivakumar

Sustainable Development Law & Policy

This paper analyses the governance machine in place at the Arctic and examines the application of the principles of “common heritage of mankind” at the Arctic. This paper also offers some tentative propositions aimed at protecting Out Bound investment rights and how the World Trade Organization or other countries, like the U.S., can intercede in the Arctic investment sphere and attempt to regulate along with the United Nations Convention for the Law of the Sea.