Environmental Law Commons^™

Professional Malpractice In A World Of Amateurs., Thomas D. Morgan

St. Mary's Law Journal

Clients experience the speed at which the world changes, both technologically and socially. They expect lawyers to keep pace. The technology which permits lawyers to deliver legal services faster also chains lawyers to their electronic devices. This technology has also led to a growing market of those who promise to do the same work faster, better, and cheaper. Such developments will ultimately affect how lawyers view professional malpractice or the way the industry understands “competence and diligence normally exercised by lawyers.” The malpractice question becomes: to what standard of care and competence should such “amateur” lawyers be held? The legal …

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …

Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard

St. Mary's Law Journal

The Texas Supreme Court has failed to provide a bright-line test in determining whether reliance disclaimers are enforceable. A reliance disclaimer is a provision in a contract that disclaims all extra-contractual representations and provides that the contracting parties are not relying on any such representations. By including a reliance disclaimer, a contracting party may be attempting to immunize itself from liability for false statements made during negotiations. Even if a contracting party’s misrepresentations or non-disclosures were made with fraudulent intent, Texas law gives contracting parties broad freedom to contract around misrepresentation claims. In Forest Oil Corp. v. McAllen, the Texas …

Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman

St. Mary's Law Journal

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

Prescribing A Balance: The Texas Legislative Responses To Sell V. United States., Brian D. Shannon

St. Mary's Law Journal

In Sell v. United States, decided in 2003, the United States Supreme Court addressed the question of “whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant – in order to render that defendant competent to stand trial for serious, but nonviolent crimes.” The Court concluded that the Constitution does permit doing so “in limited circumstances…upon satisfaction of conditions” that the Court delineated. This Article will first address the Court’s parameters for determining when the administration of antipsychotic medications on an involuntary basis is permissible. The remainder of the Article, however, will discuss …

The Yearning For Zion Raid And Its Impact On Texas Child Welfare Cases: How A Botched Rescue Effort Exposed A Need To Refocus Efforts On Effective Service Plans Comment., Shannon K. Dunn

St. Mary's Law Journal

The raid of the Yearning for Zion ranch exposed fundamental flaws in the operation of the Texas Department of Children and Family Services (the Department). In the raid, the Department took custody of 468 children without a court order and removed them from their homes. This is one of the most glaring examples of the Department’s disregard for the Texas Family Code. Subchapter B of section 263 of the Texas Family Code mandates for the creation and implementation of a comprehensive service plan whenever the Department removes a child from his home. The Department, however, failed to create service plans …

Public Access To Spatial Data On Private-Land Conservation, Jessica Owley, Amy Wilson Morris, Adena R. Rissman

Articles

No abstract provided.

Brownfields Development: From Individual Sites To Smart Growth, Joel B. Eisen

Law Faculty Publications

Remediation and reuse ofbrownfields is a hallmark of sustainable land use because the societal and economic benefits of remediating and rehabilitating an underused urban parcel are often greater than those of comparable development taking place at greenfields locations. These benefits are mentioned frequently in the large (and growing) body of brownfields literature, where brown fields redevelopment is seen as especially desirable because it meshes with the goals of the smart growth movement. However, not all brown fields redevelopment activity is "smart," for development of individual sites continues to be parcel-specific and state brownfields programs do not fully integrate well-known benchmarks …

Comments: Treasuring The Chesapeake: An Analysis Of Climate Change And Its Impact On The Chesapeake Bay And Maryland's Surrounding Coastal Regions, Lauren F. Jones

University of Baltimore Law Review

No abstract provided.

Foreword: Symposium: Leed-Ing The Way: Policy And Legal Issues With Green Building And Design, Steven G. Davison

University of Baltimore Law Review

No abstract provided.

Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster

Vanderbilt Law School Faculty Publications

We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced …

Assuming Personal Responsibility For Improving The Environment: Moving Toward A New Environmental Norm, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

There is general agreement that we are nearing the end of achieving major gains in pollution abatement from traditional sources, that a significant portion of the remaining environmental problems facing this country is caused by individual behavior, and that efforts to control that behavior have either failed or not even been made.

The phenomenon of individuals as irresponsible environmental actors seems counterintuitive when polls show that people consistently rate protecting the environment among their highest priorities, contribute to environmental causes, and are willing to pay more to protect environmental resources.

This article is the author's second effort at understanding why …

Responsible Environmental Behavior, Energy Conservation, And Compact Fluorescent Bulbs: You Can Lead A Horse To Water, But Can You Make It Drink?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Despite professing to care about the environment and supporting environmental causes, individuals behave in environmentally irresponsible ways like driving when they can take public transportation, littering, or disposing of toxic materials in unsound ways. This is the author's fourth exploration of how to encourage individuals to stop behaving irresponsibly about the environment they allege to care deeply about. The prior three articles all explored how the norm of environmental protection could be enlisted in this effort; this article applies those theoretical conclusions to the very practical task of getting people to switch the type of light bulb they use.

To …

Civic Republicanism Provides Theoretical Support For Making Individuals More Environmentally Responsible, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The genesis for this essay is the recognition that individual behavior is contributing in a significant way to the remaining environmental problems we have. For a variety of reasons, ranging from the difficulty of trying to identify and then regulate all of these individual sources to the political backlash that might result if such regulation was tried, efforts to control that behavior have either failed or not been tried. The phenomenon of individuals as irresponsible environmental actors seems counter-intuitive given the durability of the environmental protection norm and polls that consistently show that people contribute to environmental causes, are willing …

The Superfund Cost Allocation Liability Conflicts Among The Federal Courts, Steven Ferrey

Suffolk University Law School Faculty Works

Seldom in judicial history does the Supreme Court decide a case where it can, let alone will, reverse the standing precedent articulated by essentially every federal judicial circuit court across the nation. Eleven federal circuits, one after the other in a compressed period, barred the use of section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cost recovery by most plaintiffs. This, coupled with the practical result of the 2004 Supreme Court decision in Cooper Industries v. Aviall Services, Inc., greatly discouraged voluntary remediation activities at many of the 450,000 contaminated sites in the United States. …

Coal Ash Waste: A History Of Legislative Inaction, Jessica Lienau

Public Interest Law Reporter

No abstract provided.

The Revival Of New Source Review Provisions Under The Clean Air Act: Midwest Generation Litigation, Amber Battin

Public Interest Law Reporter

No abstract provided.

What Evidence Will Justify An Allocation Of Liability Among Responsible Parties Under Superfund?, Robert H. Abrams

Journal Publications

Burlington No. & Santa Fe R. Co. v. United States and Shell Oil Co. v. United States Docket Nos. 07-1601 and 07-1607. Argument date: February 24, 2009, From: The Ninth Circuit

Case at a Glance: Over a 30-year period Shell Oil delivered bulk agricultural chemicals to a now-contaminated reseller's site in California. Part of the site was leased from Burlington Northern Railroad. When the site operator failed, the United States and California incurred costs in cleaning the parcel and successfully sought to impose joint and several liability on Shell and the railroad. Shell contends it is not liable under Superfund …

Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton

St. Mary's Law Journal

Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …

Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald

St. Mary's Law Journal

Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …

Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams

Journal Publications

It is black letter constitutional theory that the several states are the masters of their property law, and hence their water law. For that reason, states have been free to adopt regimes as widely different as reasonable use riparianism and prior appropriation, depending on local conditions and perceived needs. Superimposed on the same physical water resource network, is the United States Army Corps of Engineers (Corps). The presence of Corps' facilities in basins now experiencing short supply opens the door to state and federal water allocation conflict that calls for mediation under the principles of water federalism, a doctrine that …

How Planyc Will Facilitate Brownfield Redevelopment, Mark Mcintyre

NYLS Law Review

No abstract provided.

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The …

Climate Change Litigation: Opening The Door To The International Court Of Justice, Andrew L. Strauss

School of Law Faculty Publications

In March 2003, I wrote an article for the Environmental Law Reporter surveying potential international judicial forums where victims of global warming could bring lawsuits. In the ensuing six years, numerous lawsuits have been brought in the United States and in other countries, and environmentalists can now celebrate their first significant victory. In April 2007, based upon its finding that greenhouse gases are pollutants under Section 202(a)(1) of the U.S. Clean Air Act, the Supreme Court in Massachusetts v. EPA held that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouse gases.

Though we are still in …

First Annual Climate And Energy Law Symposium: Federal Preemption Or State Prerogative: California In The Face Of National Climate Policy: An Introduction, Richard J. Lazarus

San Diego Journal of Climate & Energy Law

The University of San Diego School of Law's decision to create a new scholarly law journal dedicated to climate and energy issues could hardly come at a better time. ...
... The resulting debate and discussion, reflected in the following papers that the speakers produced, should be required reading for those lawmakers both in Washington, DC and in state capitals such as Sacramento, as they craft federal and state laws that seek to address this "most pressing environmental challenge."

Table Of Contents, Colorado Journal Of International Environmental Law And Policy

Colorado Environmental Law Journal

No abstract provided.

Table Of Contents, Colorado Journal Of International Environmental Law And Policy

Colorado Environmental Law Journal

No abstract provided.

Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow

Scholarly Works

This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active …

The Idea Of Pollution, John Copeland Nagle

Journal Articles

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …

Collision Course - Science, Law, And Regulation In The Emerging Science Of Low Dose Toxicity, Jody A. Roberts

Villanova Environmental Law Journal (1991 - )

No abstract provided.