Environmental Law Commons^™

Win-Win Environmental Regulations For Crypto Mining: Developing A Regulatory Program That Reduces Environmental Harm And Promotes Innovation And Competition, Bradley R. Finney

Scholarly Works

The crypto space is a rapidly growing industry with a rapidly growing carbon footprint. The industry’s expanding energy use has sparked a vigorous debate over whether and how best to regulate crypto mining’s environmental effects. The Biden Administration and many members of Congress have studied the industry’s environmental impact and concluded that there should be environmental regulations for the industry. Regulation, however, faces an obstacle in the form of concern that regulation may unduly stifle innovation and competition within the industry. This is a major reason why Congress has yet to enact environmental regulations for crypto mining.

This Article proposes …

Greening Monetary Policy: To Expand Or Restrain? The Legal And Normative Implications Of The Federal Reserve Combating Climate Change, Jason D. D'Andrea

Buffalo Environmental Law Journal

The U.S. Federal Reserve is increasingly at the center of political and scholarly debates concerning how to address climate change. This new pressure comes as other central banks have recently considered an array of regulatory, supervisory, and monetary policy tools to mitigate climate change. Yet, in contrast to some of its global counterparts, the Federal Reserve has been more tailored in its response.

The desire to proactively combat climate change with central bank tools has generated a spectrum of policy designs and legal wrangling. Focusing on the Federal Reserve’s monetary policy mandate, this Article undertakes a comprehensive analysis of the …

Federal Common Law Stare Decisis And The Doctrine Of Equitable Apportionment, Eric P. Leis

Buffalo Environmental Law Journal

United States Supreme Court Justice Clarence Thomas erred in his concurrence to Gamble v. United States when he derived his “demonstrably erroneous” standard of stare decisis because he overlooked a significant portion of federal law: federal common law. In Gamble, Justice Thomas argued for a weak standard of stare decisis under which the Supreme Court would overrule any “demonstrably erroneous” precedent that is contrary to our written laws, regulations, and Constitution. This standard may be functional when applying positive law, but it simply cannot be maintained when confronted with matters of federal common law. Were Justice Thomas’ “demonstrably erroneous” standard …

Pesticide-Coated Seeds: How The Treated Articles Exemption Circumvents Regulation And Harms The Environment, Scott Hudson

Buffalo Environmental Law Journal

Pesticide-coated seeds dominate the seed market for a wide range of crops, making them the primary means of delivering pesticides to many agricultural plants. Scientific research has revealed increasingly adverse effects from pesticide-coated seeds, including contamination of native plants, surface waters and groundwater, as well as causing the death of non-targeted insects and birds. Evidence also shows that pesticides from the seeds migrates to drinking water supplies and potentially imperils human health. Yet pesticide-coated seeds are not regulated by the United States Environmental Protection Agency due to a little-known exemption called the Treated Articles Exemption. This Article argues that EPA’s …

Sovereign Immunity & Punitive Fines Under The Clean Air Act: Common-Sense Statutory Interpretation & Clean Policy, Emily C. Thompson

Buffalo Environmental Law Journal

No abstract provided.

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Are The Mdbs Accountable? Reflecting On The Independent Accountability Mechanisms Of The Multilateral Development Banks, Susan Park

Perspectives

The International Accountability Mechanisms of the Multilateral Development Banks provide important insights into how to hold intergovernmental organizations to account for their environmental and social impacts. This perspective identifies how the IAMs hold the Banks to account according to the six standard questions of accountability: who is accountable, to whom, for what are they accountable, and what are the standards, processes, and sanctions employed to demonstrate that the MDBs are accountable. This highlights what the IAMs can and cannot hold the MDBs to account for, and how this might shape further international grievance mechanisms for people seeking to defend their …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Deconstructing Concepts About Nature: An Alternative Perspective For Ecofeminism Based On The Rights Of Nature, Leslie Terrones

PEEL Student Scholarship

No abstract provided.

Negotiating Environmental Justice In Ukraine, Paul R. Williams, Sindija Beta

Case Western Reserve Journal of International Law

This Article examines the dynamics of negotiating environmental justice in Ukraine amid pressure from certain international actors for an Amnesty-Based Peace in Ukraine. While it is currently unclear how Russia’s war in Ukraine will end, it is likely that there will be significant discussion around forms of justice, including how to address the grave environmental damage Russia has caused in Ukraine. This Article looks at previous precedents of Amnesty-Based Peace in Angola, Haiti, and Uganda and decisions and commentaries by international actors to argue that appeasement has not fostered durable peace and is generally disfavored by judicial and non-judicial bodies. …

Closing The Renter-Sized Gap In The Inflation Reduction Act: How Housing Policy Can Help Climate Legislation Achieve Environmental Justice, Madison M. Schettler

Connecticut Law Review

The passage of the Inflation Reduction Act (IRA) in August 2022 was an important step forward in American climate policy. The Act is essential to the United States’ goal of effective climate change mitigation efforts, and other countries have even begun to use it as a model for climate mitigation. The Inflation Reduction Act (IRA) provides the framework by which the United States will transition away from fossil fuels and move towards an energy grid powered predominantly by renewable sources. For the first time, the Act addresses head-on the climate and environmental injustices that exist in the United States due …

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Case Western Reserve Journal of International Law

The United Nations General Assembly recently unanimously adopted a resolution recognizing the “right to a clean, healthy and sustainable environment as a human right.” in July, 2022. ... The resolution was heralded by U.N. Environment Programme (UNEP) Executive Director Inger Andersen as a “victory for people and the planet,” and it was described as a catalyst for action by U.N. Special Rapporteur on Human Rights and the Environment David Boyd. ... Boyd went on to say that the resolution could encourage States “to enshrine the right to a healthy environment in . . . constitutions and regional treaties.”... This short …

Deadly Journeys: Climate Change, U.S. Border Enforcement, And Human Rights, Julia Neusner

Case Western Reserve Journal of International Law

Extreme weather events and slow onset disasters, exacerbated by climate change, are increasingly driving global displacement. As displaced people seek cross-border protection in unprecedented numbers, the United States has responded by tightening border controls and restricting asylum access. These policies have exposed migrants and asylum seekers in transit to greater risks of injury and death due to the impacts of climate change and climate-related disasters. Drawing on legal analysis, historical context, and firsthand interviews with people seeking U.S. asylum, this Article examines the implications of U.S. policies that limit freedom of movement and asylum access. The Article raises critical legal …

Climate Rights In Brazil And The United States: A Convergence In Contrasts, James R. May, Marcelo Buzaglo Dantas, Luciana Bauer

Case Western Reserve Journal of International Law

This Article offers three quick takeaways. First is the utility of rights-based approaches to climate change. As evidence of climate change grows, international and domestic law are rushing to keep pace. ...

Second is the value of borrowing. Courts look and listen to other courts. As the political processes at both domestic and international levels have failed to protect against climate change, whether by action or inaction, a growing number of courts—led by those in Brazil, the United States, and elsewhere—have tried to catalyze more robust and effective government responses. ...

Last is implementation. Without a strategy for operationalizing these …

Ecocide In War And Peace, From The Air Pollution Consequences Of The War In Ukraine To Japan's Disposal Of Fukushima Water Into The Ocean, Giovanni Chiarini

Case Western Reserve Journal of International Law

This Article will propose and analyze potentially prosecutable cases of alleged global ecocide and propose targeted amendments to Articles 36(3) and (5) of the ICC Rome Statute. These proposed amendments may serve as a blueprint to procedurally ensure environmental expertise at the international judicial level. Ecocide is unfortunately not currently recognized under the Rome Statute. However, certain scholars have suggested defining it as a fifth international crime. This analysis identifies environmental crises, international criminal law expectations and examines the environmental pollution caused by the Russian invasion of Ukraine and the Japanese government’s decision to dispose of radioactive treated water from …

Crimes Against The Environment, Ecocide, And The International Criminal Court, Milena Sterio

Case Western Reserve Journal of International Law

Ecocide as well as other crimes against the environment have become a feature of warfare, as exemplified in the Russian invasion of Ukraine and the devastating environmental harm caused as a result. As this Paper has described, significant obstacles remain associated with the ICC’s ability to prosecute environmental crimes, either as war crimes or crimes against humanity. (Abstrast excerpted from article's Conclusion.)

U.S. National Security And Climate Change, Alexandra E. Koch, Nicole K. Carle, Gregory P. Noone

Case Western Reserve Journal of International Law

As sea temperatures rise and natural disasters intensify, it is critical that the U.S. national security strategy actively include plans to account for global climate change and address the complex environmental and humanitarian challenges that parallel and are driven by rising temperatures, such as resource scarcity, forced displacement, and regional instability. Climate change acts as a “threat multiplier for instability” in some of the most volatile regions of the world and can contribute to rising tensions even in historically stable regions. Climate change can also lead to increased vulnerability of military infrastructure and logistics, undermine military readiness, and demand a …

Offshore Wind: A Comparative Of The United States And Norway

Fordham Environmental Law Review

No abstract provided.

Assessing The Human Right To Water And Sanitation In International Law And The Conflict In The Nile Basin

Fordham Environmental Law Review

Ethiopia’s construction and operation of the Grand Ethiopian

Renaissance Dam (GERD) on the Blue Nile has intensified the long-

standing water conflict involving Ethiopia, Egypt, and Sudan, and

highlights the urgent need for a new legal framework for the Nile

Basin’s governance. This article traces the history of the international

human right to water and sanitation and previous attempts to govern

water use in the Nile Basin. We argue that outdated colonial-era

treaties, which Egypt and Sudan insist on using as a baseline for

negotiations, are a significant obstacle to resolving the Nile conflict

and managing the region’s water resources …

Debts And Desertion: Bankruptcy Law And The Orphan Well Crisis

Fordham Environmental Law Review

The issue of orphan wells—unplugged and unproductive oil and

gas wells with no responsible operator—poses a significant

environmental and public health threat in the United States. The scale

of this crisis is alarming: there are over 120,000 documented orphan

wells and potentially millions more undocumented. These wells are

often significant sources of methane emissions and other toxins that

exacerbate climate change and endanger the health of surrounding

communities. This paper examines the orphan well crisis, exploring

how wells become orphaned and the environmental and health

impacts associated with them. Furthermore, it delves into how the

situation is likely to worsen …

Governing Private Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court's opinion in Dobbs rejected an individual right to reproductive choice, many private firms chose to govern reproductive healthcare by covering employee access to abortions. As mass shootings continue to plague the country, some firms have decided to govern firearm safety by discontinuing sales of assault weapons. While the climate crisis continues to upend life on Earth, corporate leaders are engaging in private environmental governance by voluntarily reducing their own emissions, demanding reductions within their supply chains, and pressuring peers and competitors to do the same. Each of these endeavors represents a form of private governance in …

Multinational Asset Management Firms & Esg Disclosure Management, Maggie Pahl, Michael Hamersky, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

In recent years, the United States, European Union, and United Kingdom have introduced “Environmental, Social, and Governance” disclosure regulations. Multinational Asset Management Firms must now navigate the evolving and varied disclosure and labeling requirements they are subjected to across multiple jurisdictions. This Article provides a brief history of ESG disclosure regulation and provides a summary of the enacted and proposed regulations and identifies the biggest points of contention between the regulations and provides suggestions for a more comprehensive standardized regulatory framework.

Displacing Climate Precarity, Camila Bustos, Julia Neusner

Elisabeth Haub School of Law Faculty Publications

In this Essay, we explore these questions and present a two-part argument. In Parts II and III, we argue that because climate change is exacerbating other drivers of displacement, it is seldom possible to attribute movement to any single factor or to categorize movement conclusively as voluntary or involuntary. Therefore, expanding pathways to safety for all people on the move is the best approach to protect those displaced, directly or indirectly, by climate change and environmental disasters. In Part IV, we argue that, despite attribution and definitional challenges with regard to climate-related mobility, documenting and assessing the role of climate …

Keynote Speech By John Knox, Former U.N. Special Rapporteur For Human Rights And The Environment, John Knox

Case Western Reserve Journal of International Law

No abstract provided.

The Right To A Healthy Environment: Underlying Policy Formation Challenges In The United States During The Trump Era, Michael J. Kelly

Case Western Reserve Journal of International Law

The right to live in a healthy environment is the right to live in an environment where Donald Trump is not president. As this Article demonstrates, Trump’s negative impact across a wide spectrum of policy areas implicated by the right’s goal of creating and maintaining a healthy environment in the United States ran directly opposite to achieving that goal. (Abstract excerpted from article's introduction.)

Drops In The Ocean: The Hidden Power Of Rights-Based Climate Change Litigation, Craig Martin

Case Western Reserve Journal of International Law

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, …

Taxing Dirty Luxuries, Victoria J. Haneman

Case Western Reserve Journal of International Law

Dirty luxuries are items that are pleasant or nice to have, not necessities, that absolutely bludgeon the environment. From the merely affluent to the ultra-rich, consumers enjoying dirty luxuries, such as luxury clothing, private jets, superyachts, SUVs, and vacation cruises, drive one of the most polluting types of consumption on the planet. This Article explores the climate costs of dirty luxuries, considers the current and proposed international efforts to address the climate impact of these luxuries, and proposes structures by which these luxuries may be taxed to either reduce consumption or compensate for negative externalities.

Climate Change And Cross-Border Displacement: What The Courts, The Administration, And Congress Can Do To Improve Options For The United States, Kate Jastram

Case Western Reserve Journal of International Law

There is no doubt that the United States, even under existing law, could do much more to protect people displaced across international borders in the context of climate change and disasters. All branches of government have a role to play. Federal courts must thoughtfully assess litigants bringing asylum and CAT claims in the context of climate change and disasters. The administration must clarify interpretation of the refugee definition and use all available tools at its disposal to create new legal pathways as outlined in the White House Report. For its part, Congress must modernize the statutory basis for international protection …