Environmental Law Commons^™

Law, Labour And Landscape In A Just Transition, Adrian A. Smith, Dayna Nadine Scott

Articles & Book Chapters

Taking conflicts over new solar energy projects on the agricultural landscape in the global North as its backdrop, the chapter demonstrates how work and labour (including that performed in the North by workers from the global South) are erased both by the opponents and the proponents of such projects. The erasure is consistent with prevailing ways of knowing the human-environment nexus, shaped by an underlying political economy derivative of how international law has constructed and maintained the foundational liberal mythology that separates labour from land. Grounded in our commitment to pursuing a ‘just transition’ to decarbonisation – that is to …

The Carbon Market And Its Regulation In Brazil, Gabriel Wedy, Weber Amaral, Cacia Pimentel

Sabin Center for Climate Change Law

At present, the global geopolitical scenario is based on an economy undergoing a post-pandemic recovery, with inflation unleashed in various developed countries and a war conflict in Europe, which entails an overall increase in energy prices, food insecurity and a breakdown of supply chains. Under such circumstances, the outlook is one of enormous pressure on the mitigation and adaptation plans of the United Nations, which seeks to revert climate warming caused by human actions in the post-industrial revolution era. The watchword is decarbonizing the global economy by reducing greenhouse gas (GHG) emissions and changing carbon-intensive production regimes. Indeed, countries, companies, …

The Polar Silk Road And The Future Governance Of Northern Sea Route, Nengye Liu, Jan Jakub Solski

Research Collection Yong Pung How School Of Law

This article examines China’s Polar Silk Road (PSR) and its legal implications for the future governance of the Northern Sea Route (NSR). It first discusses China’s economic and geopolitical interests in the so-called Polar Silk Road. The article then focuses on comparing Russian regulation of the NSR and Chinese regulation of foreign vessels as a coastal state. Both China and Russia are contracting parties to the United Nations Convention on the Law of the Sea (UNCLOS). The comparison of domestic legislations aims to provide a detailed analysis on convergence and divergence of their implementation and enforcement of the UNCLOS on …

Flint, Michigan Drinking Water Crisis, J. David Aiken

Cornhusker Economics

Briefly covers the Flint, Michigan drinking water crisis including providing some background, a timeline of events, and key takeaways from the perspective of public policy.

This article was originally prepared for distribution to students in Aiken's AECN 357 environmental and natural resources law course.

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez

Northwestern University Law Review

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …

Challenging Equality: Property Loss, Government Fault, And The Global Warming Catastrophe, Laura S. Underkuffler

Northwestern University Law Review

One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law.

This Essay challenges that bedrock idea. …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Flint's Fight For Environmental Rights, Noah D. Hall

Northwestern University Law Review

This Essay reviews the recent development of environmental rights within U.S. constitutional law, advanced through a series of federal court decisions in the wake of the Flint water crisis. The residents of Flint were poisoned and lied to by their government for nearly two years. They experienced how American environmental governance has failed at the state and federal levels and how our environmental laws leave individuals and communities unprotected. And then Flint fought back, in the courts, for five years. Flint residents have been overwhelmingly successful, achieving some justice for themselves and advancing substantive rights and remedies within our constitutional …

A Science-Based Policy For Managing Free-Roaming Cats, David Hunter, Christopher A. Lepczyk, David C. Duffy, David M. Bird, Michael Calver, Dmitry Cherkassky, Linda Cherkassky, Christopher R. Dickman, David Jessup, Travis Longcore, Scott R. Loss, Kerrie Anne T. Loyd, Peter P. Marra, John M. Marzluff, Reed F. Noss, Daniel Simberloff, Grant C. Sizemore, Stanley A. Temple, Yolanda Van Heezik

Scholarly Articles in Law Reviews & Journals

Free-roaming domestic cats (i.e., cats that are owned or unowned and are considered ‘at large’) are globally distributed non-native species that have marked impacts on biodiversity and human health. Despite clear scientific evidence of these impacts, free-roaming cats are either unmanaged or managed using scientifically unsupported and ineffective approaches (e.g., trap-neuter-release [TNR]) in many jurisdictions around the world. A critical first initiative for effective, science-driven management of cats must be broader political and legislative recognition of free-roaming cats as a non-native, invasive species. Designating cats as invasive is important for developing and implementing science-based management plans, which should include efforts …

Scotus Invalidates Obama Clean Power Plan, J. David Aiken

Cornhusker Economics

On June 30, 2022, the Supreme Court of the United States (SCOTUS) ruled in the case of West Virginia v. EPA that the US Environmental Protection Agency (EPA) could not implement the 2016 Obama administration Clean Power Plan (CPP). This article briefly discusses the CPP, the CPP litigation, the Court's opinion in West Virginia v. EPA, and what the decision means for Biden administration climate policy.

Zaagtoonaa Nibi (We Love The Water): Anishinaabe Community-Led Research On Water Governance And Protection, Nicole Latulippe, Deborah Mcgregor

Articles & Book Chapters

This paper presents Indigenous community-led, collaborative, and community-engaged water governance research with a First Nations community in the Georgian Bay and Lake Huron region in northeastern Ontario, Canada. The methodology draws on Indigenous approaches to understanding and developing knowledge and is designed to build community capacity in research and in water protection and governance. This approach recognizes existing community strengths, including traditional knowledge, experiences, perspectives, and associated cultural perspectives and values, laws, responsibilities and lived experience in relation to water. Results identify and contextualize community-held responsibilities and legal principles pertaining to water that support culturally relevant water governance and strategic …

Science-Intensive Dispute Mechanism For Protection Of Atmosphere: Icj, Wto And Pca, Chhaya Bhardwaj, Anmol Agarwal

Indiana Journal of Global Legal Studies

The authors argue that protection of atmosphere related science intensive disputes should be submitted to the Permanent Court of Arbitration (PCA) because it has a better approach in comparison to the International Court of Justice (ICJ), and World Trade Organization (WTO). This comparative analysis highlights different approaches by the three dispute settlement institutions. The approach by the ICJ and WTO are discretionary and follow a case-by-case method to evaluate scientific evidence. The PCA has standardized its dispute settlement process under its codified protocols for science-intensive disputes. There is an increase in science-intensity of legal issues in the twenty-first century and …

International Investment Governance And Achieving A Just Zero-Carbon Future, Ella Merrill, Martin Dietrich Brauch, Lisa E. Sachs

Columbia Center on Sustainable Investment

As developing countries continue to be the most negatively affected by climate change and the energy transition, it is increasingly critical that they receive foreign direct investment and financial support to build climate resilience, adapt to climate impacts, avoid carbon lock-in and fossil fuel dependence, and leverage their rich endowments of renewable and extractive resources to prepare for the zero-carbon future.

There is a disconnect and fundamental misalignment between international investment law and the international climate change regime, comprising the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. Existing investment treaties—including their centerpiece, investor–state dispute settlement …

Climate Science In Adaptation Litigation In The U.S., Jacob Elkin

Sabin Center for Climate Change Law

The most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—but as climate impacts become more frequent, extreme, and intense, adaptation litigation will increase. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change. This research oftentimes consists of one of two types of climate research: attribution studies of climate change to date, and future projections of climate change and its impacts.

Climate change attribution links human activity to climate change, especially changes in the statistics of extreme weather events. Increasingly, it is also beginning to be applied to impacts …

Current Challenges In The Rio Grande/Río Bravo Basin: Old Disputes In A New Century, Regina M. Buono, Gabriel Eckstein

Faculty Scholarship

The Rio Grande River traverses 2000 kilometres of the international border between Mexico and the United States. The river and its tributaries are governed by a series of border treaties and institutions, as well as under the domestic laws of each nation. Often lauded for enabling innovative and collaborative governance, in recent years the complicated regime has come under pressure as domestic and international water governance institutions struggle under the strain of climate change, population growth, and other stressors on water supply and demand in the region. This chapter considers three of the major challenges currently facing the Rio Grande …

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado-Pérez

Faculty Scholarship

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …

Indonesia’S Extraterritorial Obligation To Protect The Human Rights Of Individuals From Transboundary Haze Pollution, Yogi Bratajaya, Diajeng Wulan Christianti, Ahmad Gusman Catur Siswandi

Indonesian Journal of International Law

Ever since the late 1980s, forest fires located in Indonesia have resulted in haze pollution which engulfs the Southeast Asian region almost annually. This paper argues that Indonesia is extraterritorially obligated to ensure the human rights of individuals outside its territory as a result of its failure to prevent the haze pollution. It analyzes the extraterritorial application of Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), arguing that an individual whose human rights have been adversely affected by transboundary environmental harm is deemed ‘subject to the jurisdiction’ of the originating state. Applying this interpretation, individuals located …

Impact Assessment And Responsible Business Conduct Tools In The Extractive Sector: An Environmental Human Rights Toolbox For Government, Business, Civil Society, And Indigenous Groups, Sara L. Seck, Charlotte Connolly, Penelope Simons, Audrey Axten

Responsible Business Conduct and Impact Assessment Law

This toolbox provides guidance on how governments, businesses, civil society, and Indigenous groups may encourage and adopt a human rights approach to impact assessment (IA). It forms part of a broader research project aimed at highlighting the interrelationship between IA laws and Responsible Business Conduct (RBC) tools, funded by the Social Sciences & Humanities Research Council (SSHRC) Knowledge Synthesis Grant: Informing Best Practices in Environmental & Impact Assessments (the “KSG”).

The Role Of Esg Rating Agencies And Market Efficiency In Europe’S Climate Policy, Ebbe Rogge, Lara Ohnesorge

UC Law Environmental Journal

The European Union (“EU”) set out an ambitious policy agenda to reduce its impact on climate change. Although the popular image is that economic growth and sustainability are practically incompatible, this policy agenda includes measures enabling reallocation of investment towards sustainable projects and companies. This paper posits that, by adopting measures requiring the disclosure of non-financial and in particular Environmental, Social, and Governance (“ESG”) information, EU policy relies on market efficiency to ensure the desired reallocation of investment.

In order for this market efficiency approach to work properly, non-financial information must be accessible, comparable, and verified. This creates a new …

Green Bonds: Reforming Esg Regulation In The United States To Meet The Requisite Funding Demand For A Decarbonized Economy, Bryant Rivera

UC Law Environmental Journal

At the 2021 United Nations Climate Change Conference (“COP26”) in Glasgow, nations around the world reaffirmed their international commitment to limit average global temperature increases by the end of the century to 1.5 degrees Celsius. This international effort will require a significant amount of funding, one that will demand a substantial restructuring of the U.S. financial market towards a carbon neutral economy. In recent years, green bonds have emerged as the leading financial instrument to finance environmental projects and initiatives. Although the market has seen unprecedented growth, it is nevertheless inhibited by its lack of regulatory structure, with all disclosures …

Radical Legal Change: Moving Toward Earth Law, Tara Pierce

UC Law Environmental Journal

This paper will examine the required paradigm shift in socio-legal philosophical thinking and the shared values between the Public Trust Doctrine and Earth Law. These legal frameworks were born from different social narratives, which greatly impacted their ability to serve the public and the Earth Community. Exploring each legal framework’s origins and current practice will illuminate how the Public Trust Doctrine can bridge the gap between Western legal systems toward Earth Law—a holistic approach to justice in the context of history, society, ecology, and humanity’s relationship with our planet. Earth Law focuses on the roles of beings within their ecosystem, …

Using Federal Power To Compel Fire Prevention And Address Growing Property Insurance Issues In Wildland-Urban Interface, Brandon A. Prince

UC Law Environmental Journal

The Western United States continues to experience devastating wildfire seasons. These severe disasters worsen as climate change lengthens periods of aridity and hotter temperatures. Despite this longstanding and well-documented forecast, wildland-urban interface (“WUI”) development has continued without much restriction over the past thirty years. Insurers who once issued policies in these western WUI regions now experience substantial losses on an annual basis and are reconsidering their approach to market participation in fire-prone areas. In areas with acute fire destruction like California, insurers’ resulting rate increases and non-renewals have forced state government intervention to protect property owners. This tension is emblematic …

Violations Of The Eighth Amendment: How Climate Change Is Creating Cruel And Unusual Punishment, Robert Pistone

UC Law Environmental Journal

As climate change continues to threaten human life on Earth, greenhouse gas emissions are causing more frequent record-setting temperatures and natural disasters. If the current United States prison system does not take steps to address how climate change is affecting the quality of life of its inmates, then imprisonment will be considered cruel and unusual punishment in the near future. In fact, in light of climate change, there is a strong argument that the current treatment of prisoners is already cruel and unusual punishment when other factors are taken into account. This paper focuses on the standards of what conditions …

And Then There Were Two: Splitting South Carolina's Department Of Health And Environmental Control, Arslan S. Valimohamed

South Carolina Law Review

No abstract provided.

How Environmental Litigation Has Turned Pipelines Into Pipe Dreams, Madison Hinkle, Jesse J. Richardson

Law Faculty Scholarship

Proposed oil and gas pipelines have faced a myriad of legal challenges in the past several years. Even where pipeline proponents have prevailed, the cost and delay of protracted litigation has often caused cancellation of pipeline projects. In addition, presidential transitions have led to abrupt reversals of pipeline policies, which courts have often reviewed skeptically. This Article explores the regulatory framework for pipeline construction and analyzes recent lawsuits, describing the legal requirements that agencies must follow to change policies and discussing policies of the Obama and Trump Administrations in context of the legal challenges. It concludes by analyzing the approaches …

An Assessment Of Requirements In Investments, New Technologies, And Infrastructures To Achieve The Sdgs, Peter Yang

Faculty Scholarship

Background: The implementation of the Sustainable Development Goals (SDGs) requires much planning and the provision of resources, especially regarding the necessary investments, technologies and infrastructures needed. Yet, it is presently unclear how available these elements are, what gaps exist, what changes have taken place in terms of their availability since the adoption of the SDGs and what their requirements will be in the future. The knowledge gap has become even more concerning because of the impact of the COVID-19 pandemic. Using a bibliometric analysis, an assessment of the global progress of SDG implementation and requirements, identifying challenges through the development …

Making Me Ill: Environmental Racism And Justice As Disability, Britney Wilson

Articles & Chapters

Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both …

Developing Solar Energy In Rural Virginia: An Analysis Of Legal, Environmental, And Policy Issues, Reza Kameli, Sun Shen

Virginia Coastal Policy Center

This paper focuses on the legal, environmental, land use, and policy issues associated with developing solar energy projects in Virginia, with a particular focus on large-scale installations in rural areas. Part II discusses state laws, regulations, and recent legislative actions that relate to solar development, including the Virginia Stormwater Management Act and Erosion and Sediment Control Law. Part III reviews local strategies for managing solar development, including comprehensive plans, ordinances, siting agreements, and conditional use permits. Part IV addresses the challenges localities may face when balancing land preservation and Virginia’s ambitious clean energy goals. Finally, Part V provides recommendations for …

Governing For Transformative Change Across The Biodiversity-Climate-Society Nexus, Unai Pascual, Pamela D. Mcelwee, Sarah E. Diamond, Hien T. Ngo, Xuemei Bai, William W. L. Cheung, Michelle Mei Ling Lim, Nadja Steiner, John Agard, Camila I. Donatti, Carlos M. Duarte, Rik Leemans, Shunsuke Managi, Aliny P. F. Pires, Victoria Reyes-Garcia, Christopher Trisos, Robert J. Scholes, Hans-Otto Portner

Research Collection Yong Pung How School Of Law

Transformative governance is key to addressing the global environmental crisis. We explore how transformative governance of complex biodiversity–climate–society interactions can be achieved, drawing on the first joint report between the Intergovernmental Panel on Climate Change and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services to reflect on the current opportunities, barriers, and challenges for transformative governance. We identify principles for transformative governance under a biodiversity–climate– society nexus frame using four case studies: forest ecosystems, marine ecosystems, urban environments, and the Arctic. The principles are focused on creating conditions to build multifunctional interventions, integration, and innovation across scales; coalitions of …

Measuring The Benefits Of Power Plant Effluent Regulation, David A. Keiser, Bethany A. Daviss Noll, Catherine L. Kling, Rachel Rothschild

Other Publications

This report reviews the Economic Analysis (EA) that supported the 2020 Revisions of the Effluent Limitation Guidelines (ELGs) and Standards for the Steam Electric Power Generating Point Source Category (“2020 Rule” or “Rule”). We review the economic framework, literature, and analyses performed to support these revisions. Our report builds on Davis Noll and Rothschild (2021). In that report, Davis Noll and Rothschild detailed numerous impacts of the 2020 Rule that EPA neglected to examine in the EA, such as the health impacts from bromide, lead, and mercury emissions, harms to threatened and endangered species, and forgone climate benefits related to …