Environmental Law Commons^™

Household Actions Can Provide A Behavioral Wedge To Rapidly Reduce U.S. Carbon Emissions, Michael P. Vandenbergh, Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul C. Stern

Vanderbilt Law School Faculty Publications

Most climate change policy attention has been addressed to long-term options, such as inducing new, low-carbon energy technologies and creating cap-and-trade regimes for emissions. We use a behavioral approach to examine the reasonably achievable potential for near-term reductions by altered adoption and use of available technologies in US homes and nonbusiness travel. We estimate the plasticity of 17 household action types in 5 behaviorally distinct categories by use of data on the most effective documented interventions that do not involve new regulatory measures. These interventions vary by type of action and typically combine several policy tools and strong social marketing. …

When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana

Faculty Working Papers

The heart of the Article is an exploration of the possible role of common law tort liability in both encouraging and deterring voluntary, precautionary study of new products generally and nanotechnology products in particular. A key variable in considering liability's role as an incentive or deterrent to testing is the manufacturer's subjective assessment of the probability that any injuries from its product would be detected by the injured parties and successfully attributed to the product absent research by the manufacturer itself on the adverse effects of the product. Another key variable is the legal standard for tort liability, and specifically …

The Contextual Rationality Of The Precautionary Principle, David A. Dana

Faculty Working Papers

This article defines the precautionary principle (PP) primarily based on what it is not: it is not quantitative cost-benefit analysis (CBA) or cost-cost analysis of the sort we associate with the Office of Management and Budget in the United States and U.S. policymaking and policy discourse generally. In this definition, the PP is a form of analysis in which the costs of a possible environmental or health risk are not quantified, or if they are, any quantification is likely to be inadequate to capture the full extent of the costs of not taking regulatory measures to mitigate or avoid the …

Canada-United States Cooperative Approaches To Shared Marine Fishery Resources: Territorial Subversion?, Ted L. Mcdorman

Michigan Journal of International Law

This Essay will focus on how Canada and the United States have both succeeded and failed in adopting cooperative approaches to managing ocean fishery resources. A critical factor that has influenced these efforts is the introduction of an international legal construct dictating that States have exclusive sovereign rights respecting all marine living resources within 200 nautical miles of their shores. Cooperative approaches to managing transboundary marine living resources between Canada and the United States are necessary for two reasons. First, in the case of marine living resources, the resource pays scant attention to human-constructed national boundaries. Put another way, marine …

Conserving Marine Wildlife Through World Trade Law, Eric A. Bilsky

Michigan Journal of International Law

Part I of this Essay marshals the evidence that fisheries around the world are in peril from destructive fishing practices. Part II argues that most fisheries management regimes are ineffective at counteracting the political pressures and economic incentives that lead to unsustainable fishing. Part III makes the case that government subsidies are major enablers of overfishing. The fourth and final Part discusses the continuing efforts to use international trade regulation to eliminate overfishing subsidies and halt the collapse of the world's marine fish populations.

Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff

Michigan Journal of International Law

This Essay assesses challenges that arise when marine territorial boundaries do not encompass the appropriate assemblage of resources and relationships necessary for effective authority and management. It reviews the manner in which certain offshore resource uses have been "quasi-territorialized" by the application of other forms of jurisdiction. It also highlights regime-jurisdiction-private interest-oriented responses to territory-oriented challenges in the form of assemblages of authority, interests, space, and time. Given the scalar progression of the links in the discussion, the assessment moves from international principles to exercises of national sovereignty to domestic administration of space and resources to private legal interests.

Scaling "Local": The Implications Of Greenhouse Gas Regulation In San Bernardino County, Hari M. Osofsky

Michigan Journal of International Law

This Essay analyzes local climate regulation in San Bernardino County as a window into the complexities of defining a local scale in an interconnected world. In so doing, it aims to contribute to the Symposium's broader dialogue about "Territory Without Boundaries" and the Panel's more specific discussion of "Urban Territory in a Global World." As a purely territorial matter, U.S. cities and counties differ substantially in their sizes, the quantity and physical characteristics of their land, the size and density of their populations, and the needs of their citizens. Structurally, these localities remain administrative subunits of states, but they also …

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein

UF Law Faculty Publications

In 2007, the nation entered its greatest financial downturn since the Great Depression of the 1930s. What followed was a period of national introspection. Although prescriptions for financial rescue varied widely in the details, a surprisingly broad consensus emerged as to the underlying pathology of the crisis. This Article explores three principal contributing factors and the lessons associated with each that make up this pathology. These factors include: rejecting rules through deregulation, trivializing risk through overly optimistic analyses, and overconsumption supported by reckless borrowing and lending practices.

The powerful lessons from this pathology, considered by a stunned nation in the …

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Faculty Scholarship

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers …

Nepa And The Dynamics Of Public Participation In The Environmental Review Process: An Analysis Of The Northmet (Polymet) Mining Project Near Hoyt Lakes Minnesota, Amber Neumann

Political Science Theses and Capstones

Hypothesis: That comments collected from agency “experts” during the scoping phase of the National Environmental Policy Act (NEPA) process would be disproportionately represented as changes in subsequent drafts of NorthMet’s Environmental Impact Statement (EIS).

Methods: Tabular analysis of data collected from the Minnesota DNR publication of Response to the Public Scoping Projects PolyMet Mining Inc.; NorthMet Project. 2005

Results: There is an excellent cross section of comment sources represented in changes to subsequent drafts of NorthMet’s EIS. A lot of overlap exists between various types of participants and their concerns, resulting in many of the successful comments stemming from …

Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann

Articles

The Rivers and Harbors Act of 1899 often is considered the first environmental criminal statute because it contains strict liability provisions that make it a misdemeanor to discharge refuse into navigable waters of the United States without a permit. When Congress passed the Rivers and Harbors Act, however, it was far more concerned with preventing interference with interstate commerce than environmental protection. For practical purposes, the environmental crimes program in the United States dates to the development of the modem environmental regulatory system during the 1970s, and amendments to the environmental laws during the 1980s, which upgraded criminal violations of …

Green From Above: Climate Change, New Developmental Strategy, And Regulatory Choice In China, Dongsheng Zang

Articles

This essay discusses a developmental strategy formulated in China between 2004 and 2007, with a strong emphasis on energy efficiency in response to growing pressure from global concerns of climate change. It tries to show how a top-down regulatory structure was reinforced in the process.

Slides: The Big Questions, Doug Kenney

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Doug Kenney, Natural Resources Law Center, University of Colorado Law School

7 slides

Slides: Linking Growth, Land Use And Water, Jim Holway

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Jim Holway, Global Institute of Sustainability, Civil and Environmental Engineering, Arizona Water Institute, Arizona State University

29 slides

The Environmental Effects Of Cruelty To Agricultural Animals, Kyle H. Landis-Marinello

Michigan Law Review First Impressions

Laws criminalizing animal abuse should apply to the agricultural industry. When we exempt the agricultural industry from these laws, factory farms increase production to unnaturally high levels. This increased production causes devastating environmental effects, such as climate change, water shortages, and the loss of topsoil. In light of these effects, the law needs to do much more to regulate the agricultural industry, and the first step should be to criminalize cruelty to agricultural animals. This would force the industry to slow down production to more natural levels that are much less harmful to the environment.

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

University of Michigan Journal of Law Reform

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the …

Slides: The Roadless Rules And The Roles Of States And Communities, Sharon Friedman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Sharon Friedman, Director of Planning, USDA Forest Service, Rocky Mountain Region

13 slides

Slides: The Future Of Federal Wetlands Regulation, Mark Squillace

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Agenda: The Future Of Federal Wetlands Regulation After Rapanos, University Of Colorado Boulder. Natural Resources Law Center

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Hot-Topic Discussion held at Brownstein Hyatt Farber Schreck in Denver, Colorado on May 10, 2007 from 12:00 p.m. to 1:15 p.m.

Speaker: Mark Squillace, Director of the Natural Resources Law Center, University of Colorado School of Law.

Commentators: Wayne Forman and Michelle Kales, attorneys, Brownstein Hyatt Farber Schreck

"Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court …

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements …

Beyond Westphalia: Competitive Legalization In Emerging Transnational Regulatory Systems, Errol E. Meidinger

Contributions to Books

Published as Chapter 7 in Law and Legalization in Transnational Relations, Christian Brütsch & Dirk Lehmkuhl, eds.

This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar …

High Seas Fisheries: Troubled Waters, Tangled Governance And Recovery Prospects, David Vanderzwaag, Boris Worm

Articles, Book Chapters, & Popular Press

Global fisheries are in a perceived state of crisis. Despite growing technological effort and an unprecedented global expansion of fisheries, total landings (85-100 million MT per year) have stagnated and probably entered a period of slow decline. This trend may destabilize ocean ecosystems and undermine world seafood supplies, which provide the major source of protein for 2.3bn people, and international cooperation to address this issue has been slow. This is particularly true for highseas fisheries that occur in international waters encompassing some 61% of the world's ocean. These have been plagued by a fragmented and weak legal framework, poor enforcement …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Is Cost-Benefit Analysis Neutral?, David M. Driesen

College of Law - Faculty Scholarship

Cost-benefit analysis (CBA) owes much of its appeal to its image as a neutral principle for deciding upon the appropriate stringency of environmental, health, and safety regulation. This article examines whether CBA is neutral in effect, i.e. whether it sometimes makes regulations more stringent or regularly leads to weaker health, safety and environmental protection. It also addresses the question of whether CBA offers either an objective value-neutral method or procedural neutrality. This Article shows that CBA has almost always proven anti-environmental in practice and that, in many ways, it is anti-environmental in theory. It examines the practice of the Bush …

The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva

Michigan Journal of Race and Law

This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …

Is Cost-Benefit Analysis Neutral, David M. Driesen

University of Colorado Law Review

Cost-benefit analysis (CBA) owes much of its appeal to its image as a neutral principle for deciding upon the appropriate stringency of environmental, health, and safety regulation. This Article examines whether CBA is neutral in effect-i.e. whether it sometimes makes regulations more stringent or regularly leads to weaker environmental, health, and safety protection. Using a representative data set from recent Office of Management and Budget (OMB) reviews, an examination of OMB prompt letters, and a literature review, this Article shows that CBA has almost always proven anti-environmental in practice. It also shows that the most common approaches to CBA are …

Transmission Siting In Deregulated Wholesale Power Markets: Re-Imagining The Role Of Courts In Resolving Federal-State Siting Impasses, Jim A. Rossi

Vanderbilt Law School Faculty Publications

During most of the twentieth century, state and local regulatory bodies coordinated the siting or power plants and transmission lines. These bodies focused on two important issues: 1) the determination of need, so as to avoid unnecessary economic duplication of costly infrastructure; and 2) environmental protection, so as to provide local land use and other environmental concerns input on the placement of necessary generation and transmission facilities. With the rise of a deregulated wholesale power market, the issue of need is increasingly determined by the market, not regulators. Environmental concerns with siting, however, frequently remain contested - especially locally - …