Environmental Law Commons^™

Back To The Future Of Conservation: Changing Perceptions Of Property Rights & Environmental Protection, Jonathan H. Adler

Faculty Publications

Property rights hold a central place in our Constitutional design and provide the foundation for America's market economy. Admiration of private property has not been universal, however. Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional, classical liberal notions of property rights are incompatible with the demands of environmental protection. These perspectives influenced the development of command-and-control environmental regulation in the 1960s and 1970s. In recent years, however, the perception of private property's role in environmental conservation has begun to change. Disregard for the …

Human Nature, The Laws Of Nature, And The Nature Of Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking …

Applying Cost-Benefit To Past Decisions: Was Environmental Protection Ever A Good Idea?, Lisa Heinzerling, Frank Ackerman, Rachel Massey

Georgetown Law Faculty Publications and Other Works

In this Article, however, we do not mount a critique from outside the technique of cost-benefit analysis. Instead, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but rather a neutral tool for evaluating public policy. In making this argument, these proponents have often invoked the use of cost-benefit analysis to support previous regulatory decisions (their favorite example involves the phase down of lead in gasoline, which we shall shortly discuss) as a sign that this technique can be used to support …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged, or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. In addition, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional …

Obstacles To The Devolution Of Environmental Protection: States’ Self-Imposed Limitations On Rulemaking, Andrew Hecht

Duke Environmental Law & Policy Forum

No abstract provided.

The Fable Of Federal Environmental Regulation: Reconsidering The Federal Role In Environmental Protection, Jonathan H. Adler

Faculty Publications

Cleveland was the site of one of the seminal events in environmental history. On the morning of June 22, 1969, a stray spark ignited oil and debris on the surface of the Cuyahoga River. The resulting fire attracted relatively little local attention in Cleveland, but became a national event. Subsequently, Time, National Geographic, and The New York Times all wrote about the fire. It even inspired a song by Randy Newman. By many accounts, it lit the spark that led to the passage of the Federal Clean Water Act.

There are some problems with the traditional story of the Cuyahoga …

Natural Resources Policy Under The Bush Administration: Not What It Says, But What It Has Done In Court, William Perry Pendley

Duke Environmental Law & Policy Forum

No abstract provided.

The National Environmental Policy Act Today, With An Emphasis On Its Application Across U.S. Borders, Lois J. Schiffer

Duke Environmental Law & Policy Forum

No abstract provided.

Lessons From The Protracted Mox Plant Dispute: A Proposed Protocal On Marine Environmental Impact Assessment To The United Nations Convention On The Law Of The Sea, Maki Tanaka

Michigan Journal of International Law

Although the ITLOS order attempted to facilitate dialogue between the parties, the Tribunal was incapable of addressing the root cause of the MOX plant controversy, namely the lack of an adequate mechanism for transboundary environmental impact assessment at the onset of the conflict under UNCLOS. Similarly, the OSPAR and Annex VII tribunals have failed to bring about the efficient resolution of this procedural environmental dispute. This Article addresses the prevention of similar incidents by proposing the creation of a marine environmental impact assessment protocol to UNCLOS to make assessment procedures operational from the initial stage of controversial projects.

Canada’S 'Forgotten Forests': Or, How Ottawa Is Failing Local Communities And The World In Peri-Urban Forest Protection, Stepan Wood

Comparative Research in Law & Political Economy

The forests found in Canada’s rapidly expanding urban fringes have been decimated by agricultural settlement and urban growth, yet they have been largely overlooked in Canadian forest policy debates. While these “peri-urban” forests fall mainly under provincial jurisdiction, this paper argues that the federal government has the authority and opportunity to negotiate a more active role for itself in this area. The paper assesses the federal government’s track record of international commitments and domestic action on peri-urban forests, canvassing developments in six policy areas: general principles; forest conservation and management; biodiversity and endangered species; land securement and ecological gifts; climate …

More Unfinished Stories: Lucas, Atlanta Coalition, And Palila/Sweet Home, Oliver A. Houck

University of Colorado Law Review

No abstract provided.

Conservation Through Collusion: Antitrust As An Obstacle To Marine Resource Conservation, Jonathan H. Adler

Washington and Lee Law Review

No abstract provided.

Nrdc V. Evans: Northern District Of California Delivers Sound Judgment In Protection Of Marine Wildlife Under The Mmpa, Restricting Navy's Use Of Sonar, Carolyn M. Chopko

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Southern Utah Wilderness Alliance V. Norton: The Continuing Battle To Hold The Bureau Of Land Management Accountable For Off-Road Vehicle Damage, Nicholas J. Hilosky

Villanova Environmental Law Journal (1991 - )

No abstract provided.

National Parks And Conservation Association V. Babbitt: Titanic Mess, Restricting Cruise Ships In Order To Protect Glacier Bay, Monica Mintz

Villanova Environmental Law Journal (1991 - )

No abstract provided.

A Different Kind Of "Republican Moment" In Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this Essay is to propose and discuss the possibility that the nation currently faces another, albeit very different, "republican moment" that may well test the future of environmental protection laws in the United States. This new "moment" has as its modifier an uppercase "Republican" rather than a lowercase "republican." While the latter "republican" invokes the political tradition referred to as "civic republicanism," the former "Republican" refers instead to the current National Republican Party. The "moment" facing environmental law is the virtually unprecedented ascendancy of the Republican Party in all three branches of the federal government.

The Doha Declaration And Beyond: Giving A Voice To Non-Trade Concerns Within The Wto Trade Regime, Larry A. Dimatteo, Kiren Dosanjh, Paul L. Frantz, Peter Bowal, Clyde Stoltenberg

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) has been a significant force in the liberalization of trade across international borders since its inception in 1995. Commentators suggest that its reforms have converted the focus of international trade policy from removal of barriers to positive policy-making--a field historically occupied by domestic authorities. And although largely successful in the promotion of international trade, the Authors suggest that the binding provisions of the WTO ignore non-trade concerns such as environmental protection, consumer rights, labor rights, and state sovereignty. The Agreement's inattention to these related concerns is the primary locus of criticism of the WTO, culminating …

Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger

Sabin Center for Climate Change Law

Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …

Why And How The World Trade Organization Must Promote Environmental Protection, Paulette L. Stenzel

Duke Environmental Law & Policy Forum

No abstract provided.

Legal Challenges And Market Rewards To The Use And Acceptance Of Remote Sensing And Digital Information As Evidence, Kenneth J. Markowitz

Duke Environmental Law & Policy Forum

No abstract provided.

Elimination Of The Depletion Deduction For Fossil Fuels, Wendy B. Davis

Seattle University Law Review

This article argues that the depletion deduction provision is a misguided incentive that has been falsely analogized and justified, and it should be abolished in order to provide funds to protect and preserve the environment. The additional revenue generated should be used to encourage the development of renewable resources and to remediate the harm caused by the extraction and use of fossil fuels. Specifically, the depletion deduction for reduction in the supply of nonrenewable resources such as coal and oil should be eliminated to (1) ensure certain and equal treatment under the tax laws; (2) encourage development of renewable energy …

Environmental Protection Information Center V. The Simpson Timber Company: Who Is The Ninth Circuit Really Protecting With Section 10 Of The Endangered Species Act, Dina Cortese

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Environmental Law And The Supreme Court: Three Years Later, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In my Garrison Lecture three years ago, I surveyed the environmental law decisions of the Supreme Court between 1970 and 1999. I commented on which Justices had been more or less influential in shaping the Court's decisions and, even more provocatively (if not foolishly), sought to "score" the individual Justices on their responsiveness to environmental protection concerns based on their votes cast in a subset of those cases. The broader thesis of the lecture, however, was that there is something distinctively "environmental" about environmental law and that the Court's increasing inability to appreciate that dimension was leading to more poorly-reasoned …

The Humbugs Of The Anti-Regulatory Movement, Lisa Heinzerling, Frank Ackerman

Georgetown Law Faculty Publications and Other Works

It is so hard to get beyond cynicism these days. Even a symposium devoted to this goal has, as reflected in the articles by Professors Cynthia Farina, Jeffrey Rachlinski, and Mark Seidenfeld, succeeded primarily in suggesting that regulators are not so much selfish as they are obtuse, stubborn, and sometimes downright dumb. Undoubtedly this is true some of the time. But Farina, Rachlinski, and Seidenfeld want to convince us that it is true enough of the time to warrant quite large-scale solutions. In this Comment, we take issue with this pessimistic assessment of regulatory behavior by discrediting the most prominent …

The Global Environment And Free Trade: A Vexing Problem And A Taxing Solution, John A. Barrett Jr.

Indiana Law Journal

No abstract provided.

Exalting The Corporate Form Over Environmental Protection The Corporate Shell Game And The Enforcement Of Water Management Law In Florida, Mary Jane Angelo, Charles Lobdell, Tara Boonstra

UF Law Faculty Publications

Current laws in Florida afford substantial protection to the “people behind the corporations” (corporate principals) and generally do not allow environmental permitting agencies such as the water management districts to consider such people in their permitting or enforcement efforts. This article poses the question “Do existing corporate law principles of limited liability defeat the important public policy of water resource protection in Florida?” First, in Parts II and III, this article introduces the problem and provides an overview of Florida water management district permitting and enforcement authorities and processes. Next, in Part IV, this article explores the existing legal authorities …

Creating Better Governance, Denise D. Fort

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

17 pages (includes illustration).

Contains 2 pages of references.

The Impossibility Of Lujan’S Project, Gene R. Nichol

Duke Environmental Law & Policy Forum

No abstract provided.

Issues Raised By Friends Of The Earth V. Laidlaw Environmental Services: Access To The Courts For Environmental Plaintiffs, Richard J. Pierce Jr.

Duke Environmental Law & Policy Forum

No abstract provided.