Environmental Law Commons^™

Let The Sun Shine: Methods For Expansion Of Small-Scale Solar Electricity To Reduce Fossil Fuel Dependence, Ease Financial Energy Burdens, And Enhance Community Resiliency, Kara Consalo

Journal Publications

With so many benefits to solar electricity generation, it behooves state and local governments across America to explore laws and policies which encourage small-scale solar deployment. To help guide development of such laws and policies, Part I of this Article will explain the mechanics and the financing involved with the installation, operation, and maintenance of an on-site solar system. Part II explores the unique benefits and challenges of small-scale solar usage in low-income and weather vulnerable communities. Part III explains the legal and financial governance of American electric companies and how existing frameworks may lead utilities to erect hurdles to …

Five Considerations For Twenty-First Century Climate Policy, Matthew G. Burgess

FIU Law Review

As the twenty-first century advances, society is entering a new phase regarding climate change. Impacts of climate change are becoming more salient in the present, rather than being only far-off in the future. Progress on flattening—and in many affluent countries, reducing—greenhouse gas emissions is also becoming salient, though the progress underperforms international targets. Slowing economic growth and major technological and geopolitical disruptions are creating new challenges and uncertainties. One of these challenges is a political climate of deep divisions and rising distrust in fact-finding institutions—a climate that is ripe for demagoguery. In the United States and some other countries, the …

"Common But Differentiated Responsibilities” In The Paris Agreement, Henrique Schneider

FIU Law Review

The Paris Agreement, adopted in 2015, epitomizes a political approach to climate action, devoid of scientific oversight at its inception. This political nature underscores its essence, emphasizing action over guaranteed results. With a foundation in "common but differentiated responsibilities" (CBDR), nations set diverse climate goals based on unique circumstances. However, this diversity complicates policy alignment and raises challenging questions, such as the feasibility of carbon border adjustments and intellectual property dilution. Analyzing CBDR within the Paris Agreement framework unveils its evolution, shaped by political negotiations and national actions. This study delves into the intricate interplay between politics, policy, and international …

Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo

FIU Law Review

For decades, the Office of Information and Regulatory Affairs (OIRA) has overseen the development of federal regulatory policies with a strong emphasis on benefit-cost analysis. Despite its conceptual appeal, this analytic tool consistently shortchanges environmental and public health protection, with especially negative consequences for environmental justice communities. In this article, we address some of those shortcomings, focusing in particular on the standard agency practice of arithmetically discounting regulatory costs and benefits that accrue in the future. We propose that the OIRA abandon this practice as it relates to non-market goods, such as human lives saved, and instead work toward a …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

FIU Law Review

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act’s force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA’s success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes …

Volo Foundation Lecture: Science, Free Speech, And Public Choice, Bret Stephens

FIU Law Review

In an era where science, free speech, and public choice clash, the historical unity between these pillars, as envisioned by America's founding fathers, is obscured. Examining Thomas Jefferson's reverence for Bacon, Locke, and Newton, reveals a past where reason and freedom intertwined. However, contemporary challenges, epitomized by the pandemic response, illustrate a divergence. Amidst censorship and expert dominance, the vital role of public scrutiny emerges. Acknowledging the fallibility of experts and embracing free speech as essential for reasoned discourse becomes imperative. To restore the balance, humility from scientific institutions, a renewed appreciation for free speech, and public courage are necessary …

Against Self-Defeating Climate Policy, Michael Buschbacher

FIU Law Review

This paper contends that the narrow Overton window on climate policy is self-defeating to the goals of many climate activists and policymakers. It gives three examples of policies that do little to address carbon emissions and are likely to fail: (1) how decarbonization policies are destroying electric grid reliability; (2) how the attempt to eliminate the internal combustion engine is leading to the “Cuba-fication” of the automotive fleet; and (3) how the focus on reducing domestic carbon emissions leads to regulatory arbitrage. The paper provides three corresponding recommendations, contending (1) that states should eliminate RTOs and ISOs in favor of …

Keeping The Perpetual In Florida's Conservation Easements, Nancy A. Mclaughlin

FIU Law Review

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the …

Inadequate Demonstration: Epa’S Latest Effort To Force A Clean Energy Transition On The Power Sector Rests On Technologies That Have Not Been Adequately Demonstrated, Mario Loyola

FIU Law Review

The Environmental Protection Agency's (EPA) proposed regulations of power plant carbon emissions under Section 111 of the Clean Air Act, which were proposed in May of 2023, raise a number of concerns. The proposed regulations target a transition in the U.S. power sector towards clean energy, relying heavily on Carbon Capture & Storage (CCS) and green hydrogen technologies to achieve nearly net zero carbon emissions from existing fossil fuel power plants. These technologies, however, do not seem to satisfy the Section 111 requirement that the Best System of Emissions Reduction (BSER) be adequately demonstrated at the scale and for the …

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment— which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Carbon Free Tbd, Hudson B. Kingston

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Cost Prohibitive Bonds As Denial Of Justice: Grassroots And Community Organizations’ Due Process Rights, Elizabeth Royal, Aletta Brady

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Migration And Survival: The Birds Do It, The Bees Do It, Why Can’T We Do It?, Meredith Bensen

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa, Kacey Cook, Hanna Weil

Articles by Maurer Faculty

This Article offers proposals for better engagements, relationships, and deals with local communities contemplating wind farms. Because the rapid expansion of wind energy to date has exhausted the first-mover rural communities, the promise of wind energy depends on reluctant rural communities that may require the legal, relational, and policy innovations proposed herein if they are to grant their consent to future wind farms and participate in the renewable energy transformation. The proposals herein are the result of empirical research exploring how occupants of rural spaces have reacted to wind developer’s strategies in their communities and how local communities have employed …

Fire And Federal Power: Defining The “Furthest Reaches” Of The Property Clause, Brett Lingle

Emory Law Journal

Wildfires pose an immense and escalating threat to national forests. In addition to rising temperatures and accumulating fuels, rapid development of the wildland-urban interface (WUI) has exacerbated wildfire risk by putting more people and property in harm’s way and increasing the likelihood of human-caused fires. While restrictions on WUI development would reduce wildfire risk, varying political and economic pressures have caused substantial variation in how local governments regulate the WUI. Some governments have implemented stringent regulations, while others have permitted unbridled expansion. Such disjointed regulation acutely impacts national forests because WUI homes and communities are often clustered around them. Thus, …

No Monsanto: Exploring The Prosecution Of Companies For Environmental Crimes Under The Federal Insecticide, Fungicide, And Rodenticide Act, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy

University of San Francisco Law Review

No abstract provided.

“The Times They Are A Changin’”: Generational Comparisons Of The Civil Rights Movement With The Current-Day Climate Movement, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

Bob Dylan’s famous song lyric, capturing the spirit of the 1960s, is just as apropos today: “The times they are a changin’” (1964). The civil rights movement changed history by securing legislation and court decisions advancing the constitutional rights of black people (Dalton 2008, 7). The movement took flight at a time when the Baby Boomer generation was politically active and seeking social change. As outlined in the introduction to this book, the generations and their birth years are as follows: Silents (1925–45); Baby Boomers (1946–64); Gen X (1965–80); Millennials (1981–95); and Gen Z (1996–2013). Baby Boomers “experienced the …

The Private Litigation Impact Of New York's Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Faculty Publications

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial …

Front Matter, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Table Of Contents, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Last Call: The Limitations Of New Mexico's Existing Water Management Framework In The Face Of Reduced Colorado River Water Deliveries, Katherine H. Tara, John Fleck

Colorado Environmental Law Journal

No abstract provided.

Federalism In Flux: Addressing State Oversight Of National Security Facilities, John White

Colorado Environmental Law Journal

No abstract provided.

Incorporating A Framework For Compostable Materials Into Extended Producer Responsibility: Plastic Packaging Models In The Legal Fight Against The Plastic Problem, Brittney Beetcher

Colorado Environmental Law Journal

No abstract provided.

Climate Change And Voter Outreach: The Irs's Prohibition On Political Campaign Activity And Climate Nonprofits, Natalie C. Negrelli

Colorado Environmental Law Journal

No abstract provided.

The Rise Of The Nondelegation Doctrine And The Decline Of Our Oceans, Stephanie Reifenberg

Colorado Environmental Law Journal

No abstract provided.

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

“Green” Is The New Black: Enforcing Consumer Protection Laws Against Greenwashing In The Fashion Industry, Emma Sammons

Emory International Law Review

As climate change continues to relentlessly change landscapes, threaten harvests, and increase the frequency of natural disasters, legislators and regulators globally must expand upon their efforts to protect the environment and citizens from the harmful practices of corporations, some of the greatest contributors to climate change. One of the greatest perpetrators of harm to the environment is the fashion industry. The harm is further compounded by the rise of fast fashion companies. These companies utilize methods of rapid production and encourage overconsumption, resulting in a rampant storefront to landfill cycle. However, legal activists, politicians, the public, and some industry leaders …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.