Environmental Law Commons^™

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Colombia's Herbidice Spraying In The Crucible Between Indigenous Rights, Environmental Law And State Security, Paola Solano

Intercultural Human Rights Law Review

For many years Colombia has struggled with eradicating illicit narcotic crops. Spraying coca and poppy crops aerially with chemical herbicides has been one of Colombia's strategies. However, this practice has resulted in serious violations of human and environmental rights. Because the herbicides were aerially sprayed at locations near, at and across the border with Ecuador, it has caused transboundary damage not only to people, animals and crops but also to bordering Ecuador's natural environment. It has also caused damage to the Colombian environment, population, and Indigenous groups. In 2008, Ecuador submitted an application instituting proceedings to the International Court of …

A Step By Step Look At Uarg V. Epa: A New Layer Of Greenhouse Gas Regulation, Kevin O. Leske

Faculty Scholarship

No abstract provided.

In Memoriam: David Sive (1922-2014) And Joseph Sax (1936-2014), Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.1 Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.

The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

San Diego Journal of Climate & Energy Law

This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …

Energy Policy, Extraterritoriality, The Dormant Commerce Clause, Alexandra B. Klass, Elizabeth Henley

San Diego Journal of Climate & Energy Law

This Article will focus specifically on potential challenges to state energy policy based on the “extraterritoriality doctrine” of the dormant Commerce Clause. In doing so, it considers two recent lawsuits involving dormant Commerce Clause challenges to state energy policy. The first is the lawsuit against the State of California over its Low Carbon Fuels Standard (LCFS) program on grounds that it discriminates against Midwest ethanol producers in favor of California ethanol producers and regulates extraterritorially in violation of the dormant Commerce Clause. The second is the lawsuit by the State of North Dakota, the North Dakota lignite coal industry, and …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

Fundamental Principles Of Law For The Anthropocene?, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A wide array of questions arises from global change to confront environmental law. The IPCC has examined social decisions affecting the climate in the design of human settlements, transport systems, industrialisation, agriculture and silviculture, waste management, provisions for energy, and virtually all other socio-economic dimensions of human life. The AR-5, too, cannot avoid raising issues of human ethics and values at local and regional scales. Such issues reach environmental policy and law directly. The IPCC’s AR-5 report furthers widespread public debate about the human dimensions of climate change, and how social theory relates to environmental change. Already, climate change has …

The Geography Of Solving Global Environmental Problems: Reflections On Polycentric Efforts To Address Climate Change, Hari M. Osofsky

NYLS Law Review

No abstract provided.

Lionfish As A Metaphor For Governance In An Era Of Climate Change, Rebecca M. Bratspies

NYLS Law Review

No abstract provided.

Expanding The “Geography” Of Policy Options To Reduce Greenhouse Gas Emissions: A Commentary On Hari Osofsky’S The Geography Of Solving Global Environmental Problems, William Ascher

NYLS Law Review

No abstract provided.

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

NYLS Law Review

No abstract provided.

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

San Diego Journal of Climate & Energy Law

The potential for shuffling in wholesale power markets thwarts California’s ability to meet its AB 32 GHG emission reduction goals, and may even lead to emissions increases. Yet, as California’s efforts illustrate, resource shuffling is extremely difficult to regulate at the state level. Short of California aggressively reducing its emissions limits to reflect the leakage problem of shuffling, the state is incapable of solving the problem on its own.
As states follow California’s lead in crafting their own approaches to regulating GHG emissions, national solutions will be necessary to address the problem of resource shuffling, given interstate markets in wholesale …

Carbonite Legal Conflict In California, Steven Ferrey

San Diego Journal of Climate & Energy Law

This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …

The Lacey Act Amendments Of 2008: The World's First Ban On Illegal Logging Combats Deforestation But Gets Stumped By Foreign Laws, Yijin J. Lee

San Diego Journal of Climate & Energy Law

By exploring the history of the United States’ legislative efforts in dealing with the problems deforestation has caused and the origins of the Lacey Act, it is possible to understand the inspiration behind the 2008 amendments to the act. Further, exploring the minute details of the Lacey Act amendments and understanding how the amendments have changed the power and meaning behind the original Lacey Act highlights the amendments’ strengths and weaknesses. Also, in understanding how the new amendments are being implemented and enforced, it is possible to see which federal agencies are putting force behind the words of the Lacey …

The Birth Of The Warsaw Loss & Damage Mechanism: Planting A Seed To Grow Ambition?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This article starts with an update on the UN climate negotiations with respect to loss & damage. It then explores two approaches to loss & damage that are substantially different form the current path of the negotiations. Both approaches seek to utilize the concern over loss & damage to improve motivation for an adequate and fair global effort to mitigation and adapt to climate change. The approaches differ mainly in the extent they can be integrated into the current UN climate regime. The first approach would create a loss & damage liability fund that seeks to ensure adequate resources to …

Recovery Planning For Pacific Marine Species At Risk In The Wake Of Climate Change And Ocean Acidification: Canadian Practice, Future Courses, Wesley Hartmann, David Vanderzwaag, Katja Fennel

Articles, Book Chapters, & Popular Press

This article evaluates how Canadian recovery planning for Pacific marine species at risk incorporates two pressing 21st century concerns: global climate change and ocean acidification (OA). While many recovery strategies for Pacific species at risk show some understanding of climate change or OA, they generally fail to incorporate key climate and OA information or to consider how these two issues will actually affect the species in question. Two strategies for progress are suggested. First is an administrative strategy that includes the development of a national climate change adaptation strategy, which clarifies how projected climate and ocean acidification impacts should be …

Keynote: Sustaining Society In The Anthropocene Epoch, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

The Implications Of Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

If we look back twenty years from now, will private governance be as much a part of environmental law and policy as market mechanisms, or will it have faded into the woodwork along with many other promising new developments? In this Essay, I briefly examine four issues that will play a large role in determining the answer to this question. Part I examines whether PEG is a coherent, discrete concept. Part II explores the extent to which PEG affects environmental behavior and environmental quality. Part III discusses the interactions between private and public environmental governance. Part IV then evaluates whether …

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

Vanderbilt Law School Faculty Publications

"Resource shuffling" occurs when different subnational approaches to carbon regulation create variations in the costs of production across jurisdictions. California is the most aggressive jurisdiction in the United States to address climate change and has adopted a cap & trade program for its greenhouse gas (GHG) emissions. This Article addresses the resource shuffling issue presented by California's cap-and-trade program and evaluates the merits of various legal and regulatory solutions to the problem.

An Environmental Conversation, William Murray Tabb

Faculty Articles

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit …

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now …

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Eating Invaders: Managing Biological Invasions With Fork And Knife?, Joshua Ulan Galperin, Sara Kuebbing

Elisabeth Haub School of Law Faculty Publications

As the public, academy, government, and private sector all turn increased attention to food systems, new ideas constantly emerge for healthy, sustainable, and just innovations in growing, marketing, and eating food. “Invasivory” — eating invasive species — is one such idea. Biological invasions occur when humans transport an organism from its ecosystem of origin into a new ecosystem and that organism adapts to its new location, spreading widely from the site of introduction. Invasive species can cause significant ecological, economic, and public health damage. Crops, homes, and native species are all at risk. “Invasivores,” as the proponents of invasivory are …

Is It Time To Revoke The Tax-Exempt Status Of Rural Electric Cooperatives?, W. G. Beecher

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

Rural electric cooperatives (RECs) were created with government assistance in the mid-1930s as part of a campaign to bring electricity to rural areas in an effort to improve economic output and quality of living. By the early 1950s, the entirety of America had access to electricity, fulfilling the federal government’s mission. Today, these cooperatives strongly resemble their for-profit counterparts, but remain tax-exempt under § 501(c)(12) of the Internal Revenue Code. This note will argue that, in light of the changes that RECs have undergone and the environment in which they now operate, their tax-exempt status is no longer warranted and …