Environmental Law Commons^™

21st-Century Environmental Challenges And Revitalizing Epa Enforcement, David Uhlmann

Articles

This is a profound moment for environmental protection efforts in our country. Over the past half-century, under presidents of both parties, we have made great progress addressing the challenges that led to the enactment of our environmental laws during the 1970s. Our air is cleaner, our rivers and streams are healthier, and we have far fewer hazardous waste sites. We have achieved those successes because of conscientious companies across America who meet their environmental obligations and the vigilance of the U.S. Environmental Protection Agency (EPA) and the Justice Department when companies break the law and put their profits before the …

Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Environmental champions and conservationists will mark the 50th anniversary of the Endangered Species Act later this month. That is the law requiring federal agencies to use all methods necessary to prevent extinctions and ensure that federal actions not jeopardize the continued existence of species on the brink of disappearing from the face of the Earth.

In the leadup to the December 27th anniversary, several publications have begun examining the Act’s history and impact over five decades.

Science, the world’s third-most influential scholarly journal based on Google Scholar citations, invited experts from around the country to look ahead as well …

Putusan Pengadilan Mengenai Biaya Ganti Rugi Lingkungan: Aplikasinya Dalam Pemulihan Lingkungan, Rizqya Nafila Putri, Dadang Epi Sukarsa, Imamulhadi Imamulhadi

Jurnal Hukum & Pembangunan

Abstract

Indonesia through Law Number 32 of 2009 concerning Environmental Protection and Management regulates the government has the right to file claims for compensation and certain actions. Minister of the Environment Regulation Number 7 of 2014 concerning Compensation for Environmental Pollution and/or Damage, as a derivative regulation, regulates that environmental compensation costs that have been paid are entered into the Treasury Fund as Non-Tax State Revenue (PNBP). This research identifies the mechanism for using environmental compensation costs, the implementation of court decisions containing environmental compensation before Supreme Court Regulation Number 1 of 2023 concerning Guidelines for Adjudicating Environmental Cases, and …

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.

A Landmark Environmental Law Looks Ahead, Robert L. Fischman

Articles by Maurer Faculty

In late December 1973, the United States enacted what some would come to call “the pitbull of environmental laws.” In the 50 years since, the formidable regulatory teeth of the Endangered Species Act (ESA) have been credited with considerable successes, obliging agencies to draw upon the best available science to protect species and habitats. Yet human pressures continue to push the planet toward extinctions on a massive scale. With that prospect looming, and with scientific understanding ever changing, Science invited experts to discuss how the ESA has evolved and what its future might hold.

Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg

American Indian Law Journal

“In order for law to have an influence in the lives of ordinary people, it must have something to do with the emotional feelings of justice, it must speak to our basic humanity, and it must give us common sense directions as to what behavior and beliefs are right and wrong"

Seeking Higher Ground: Developing A Tribal Model Code For Disaster And Emergency Management In A Complex Jurisdictional Environment, Brian Candelaria

American Indian Law Journal

“The teepee is much better to live in;

always clean, warm in winter, cool in summer; easy to move. The white man builds his big house, cost much money, like big cage, shut out sun, can never move; always sick. Indians and animals know better how to live than white man; nobody can be in good health if does not have all the time fresh air, sunshine, and good water.”

- Chief Flying Hawk[1]

In 2019, I opened my submission for the Sovereignty Symposium’s Doolin Award with the statement above. The entry was accepted and reprinted in the American …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Should Environmental Protection Be Through Anthropocentric Rights?, Christen Maccone

Pace Environmental Law Review

Environmental constitutional rights are increasingly used as a strategy to protect the environment, with more than seventy countries acknowledging environmental rights in their constitutions. However, constitutions are inherently anthropocentric, making environmental rights created therein of- ten inseparable from human rights. This paper will examine how environ- mental constitutional rights are insufficient due to the anthropocentric nature of constitutions and argue for the need for a more biocentric approach.

The Constitutional Public Trust In A Warming World, Sean Lyness

Pace Environmental Law Review

The public trust doctrine—a state-specific doctrine that entrusts certain natural resources to the state to hold for the public—most often exists as a common law doctrine. But a handful of states have constitutionalized their version of the public trust. A growing body of jurisprudential evidence shows the constitutional public trust in action—or not—against climate change. This Article examines these cases brought by governmental plaintiffs—states and local governments—investigating whether constitutionalizing the public trust has made a difference. Although the results are nascent, early signs suggest that a constitutional public trust can result in more comprehensive and aggressive law- suits when wielded …

Reading Between The Lines Of The Ira + Iija Power Gaps, Steven Ferrey

Pace Environmental Law Review

Two major pieces of legislation enacted during the Biden Administration – the 2021 Infrastructure Investment and Jobs Act (IIJA) and the 2022 Inflation Reduction Act (IRA) – devote hundreds of billions of dollars over the next decade to rapidly increase electrification throughout the United States. While this legislation provides substantial investment in infrastructure, it also demands action from different legal regulators. Renewable energy occupies a much larger land footprint than traditional electric power production. And land-use under the Tenth Amendment is within local and state, rather than federal, jurisdiction. To date, U.S. local land use regulation frustrates such national legislation. …

The Green Amendment: Assessing The Latest Tool In The Environmental Tool Belt, Carolyn Drell, Mia Petrucci

Pace Environmental Law Review

In the new edition of Maya K. van Rossum’s book, The Green Amendment: The People’s Fight for a Clean, Safe, and Healthy Environment, she presents the case for adopting green amendments protecting environmental rights into state constitutions and the Federal Constitution. This book review examines van Rossum’s arguments and raises legal concerns that prevent green amendments from providing a silver bullet solution to environmental harms. Despite these concerns that will likely resonate with practitioners, van Rossum increases the accessibility to the topic of green amendments for a wider audience, which is ultimately a net win for environmental advocacy.

Introduction, Samantha Blend, Haleigh Catalano, Kaitlyn Cameron

Pace Environmental Law Review

Introduction

Green Is The New Black: Exploring How A Philosophical Approach To The Fashion Industry Will Reduce Its Environmental Impact, Darion A. Gibbs

Student Theses and Dissertations

The fashion industry is the third largest contributor to pollution globally, behind only oil and agriculture. It also accounts for one-fifth of the plastic produced annually. Despite its impact, it is hard to trace accountability. For example, mega-retailers often outsource production to developing countries, without strong structures of accountability for their environmental impact. In addition, companies often claim to be environmentally sustainable, but it is easy to inflate the truth, and entities designed to protect consumers have limited enforcement. In this context, who should be held responsible for the fashion industry’s contribution to climate change?

In response, this thesis delves …

“I’Ll Have The Fish, Please” – Why Wild, Sustainable Fisheries In The United States Need Permanent Federal Protection, And Fast, Renee Larson

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Regulation, Radiation, And Rationality: Calculating An Intersection Of Law And Economics To Enable Nuclear Power Innovation In The United States, Sandra Roettgering

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Major Questions (And Answers): A Call To Quiet The Quartet, Michael Reaves

Journal of the National Association of Administrative Law Judiciary

This Comment calls for action to quiet the Quartet—encouraging executive agencies to mitigate the pernicious impact of MQD. In Part I, this Comment discusses the political landscape in the area of climate action. Part II wades through the nearly forty-year doctrinal shift of delegation—from humble beginnings in a law review article from then-Judge Breyer in 1986, to the application of major questions principles at various stages of agency-deference analyses. Part III discusses the Quartet and its role in MQD as a determinative legal canon. Recent scholarship calls into question if there are multiple iterations of MQD, and whether the most …

Tunnels As Temples Of 'New Green India': Dominant Narratives Of Himalayan Dam Building, Manshi Asher, Vivek Negi

National Law School Journal

The dramatic unfolding of the Joshimath crisis in Uttarakhand, India, has brought the world’s attention once again to the Himalaya. The contribution of a 520-megawatt hydropower dam to land subsidence is squarely in the spotlight. River valleys with bumper-to-bumper hydropower dam building, especially in the North Western Himalaya, in the past decade and a half or so, have witnessed frequent slope de-stabilisation, landslides and seepages. Unlike the visible dispossession of rural—often adivasi and dalit— populations in reservoir based dam affected areas, even establishing and ‘scientifically’ correlating cascading hazards with human impacts of the ‘invisible’ activity of run-of-the-river dams in the …

Putting The Brakes On California's Emissions Standards: An Analysis Of The Legal Challenges California's Advanced Clean Cars Ii Standards Will Face, Michael Maloof

Cleveland State Law Review

This Note discusses the legal implications of California’s Advanced Clean Cars II vehicle-emissions standards. These standards, which would affect vehicle model years 2026 through 2035, seek to eliminate the sale of new gasoline-powered vehicles in favor of only selling electric, zero-emission vehicles. In light of the Supreme Court’s recent decision in West Virginia v. EPA, this type of “generation-shifting” plan stands on broken ground due to the applicability of the Major Questions Doctrine. The agency action here—EPA approval of a Clean Air Act §7543 waiver—is exactly the type of “extraordinary case” that the Court must strike down in order …

Disrupting Dominance, Cinnamon P. Carlarne, Keith H. Hirokawa

Connecticut Law Review

Climate change poses one of the greatest threats to human health and well-being. It also poses enormous challenges to the rule of law. As climate change progresses and climate impacts intensify, it becomes increasingly urgent to consider whether and how we are drawing upon the law as a tool to advance human adaptation to climate change. Equally, we must consider whether and how the evolving rule of law around climate change responds to existing patterns of social, political, and economic inequality. These are the questions this article engages.

As a starting point, this Article centers human vulnerability as a necessary …

The Jurisprudence Of Justice Gorsuch And Future Efforts To Address Climate Change, Rachel Rothschild

Michigan Law Review Online

Following the Trump administration’s significant reshaping of the federal judiciary and a number of blockbuster Supreme Court cases during the October 2021 and October 2022 Terms, environmental law is shifting rapidly toward a more restrictive vision of federal regulation. Justice Gorsuch has been clamoring for such a revolution throughout his time on the bench. Since joining the Supreme Court, he has not only provided a crucial vote for limiting the Environmental Protection Agency (EPA)’s regulatory authority, but also advanced a radical vision of the separation of powers that would drastically alter our modern system of administrative governance. In several of …

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

The Role And Relevance Of Investment Treaties In Promoting Renewable Energy Investments, Ladan Mehranvar, Lisa E. Sachs

Columbia Center on Sustainable Investment

Co-authors Ladan Mehranvar and Lisa Sachs discuss the effect of investment treaties as catalysts for critical investments in the energy transition, with a particular focus on the Spanish renewable energy cases. The book chapter, "The Role and Relevance of Investment Treaties in Promoting Renewable Energy Investments," is featured in Investment Arbitration and Climate Change, published by Kluwer Law International B.V.

Journal Of Food Law & Policy - Fall 2023, Journal Editors

Journal of Food Law & Policy

No abstract provided.

Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023.

Debt-For-Climate Swaps And Illicit Financial Flows: A Call For Caution In Designing Climate Finance Infrastructures, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

Ahead of COP28, there have been widespread calls for the adoption of 'debt-for nature' and 'debt-for-climate' swaps as an alternative climate finance system to address funding gaps in developing countries. Typically, these swaps involve a debtor country repurchasing its debt securities at substantial discounts or converting official bilateral debt into environmental assets, which enables more fiscal savings to be redirected toward conservation objectives. Unlike most climate finance instruments, these debt swaps avoid burdening countries in the Global South with additional unsustainable debt, thus allowing for a more effective response to the climate crisis without sacrificing spending on other development projects. …

Climate Change And The Death Of The Administrative State?: West Virginia V. Environmental Protection Agency, Davis P. Rosser

Journal of Law and Policy

In recent decades, climate change events have surged in both frequency and intensity. Paradoxically, the most vulnerable and economically disadvantaged states, despite contributing the least to global emissions, face the gravest consequences. Developed nations, despite their wealth of resources, have consistently failed to act in the face of this crisis. For example, the recent United States Supreme Court Decision, West Virginia v. Environmental Protection Agency, limited the administrative state’s rulemaking authority and thus, its ability to enact necessary climate policy. This decision, based in the infamous “major questions doctrine,” asserts that administrative agencies must have explicit authority from Congress when …