Environmental Law Commons^™

A Bird In The Hand: Shotguns, Deadly Oil Pits, Cute Kittens, And The Migratory Bird Treaty Act, Samuel J. Panarella

Faculty Law Review Articles

This Article is presented in three parts. Part I describes the modern application (and misapplication) of the MBTA and briefly sets out the history of the Act, including the widespread, indiscriminate killing of migratory birds for food and fashion in the 19th century that first spurred Congress to act. Building off this history and the clear Congressional intent behind the MBTA to criminalize industrial activities directed at killing birds, Part II sorts human-caused bird killing activities into three categories and proposes the appropriate MBTA liability treatment for each category based both on the original purpose of the Act and on …

Accumulating Risk: Environmental Justice And The History Of Capitalism In Detroit, 1880-2015, Josiah John Rector

Wayne State University Dissertations

This dissertation is an environmental history of Detroit, Michigan from the 19th century to the present. Recent scholarship on the history of capitalism has largely ignored the problem of environmental inequality, and the negative externalities of economic growth. In contrast, studies of the environmental justice movement have richly documented race, class, and gender inequalities in environmental risk exposure. However, they have neglected the relationship between the development of the environmental justice movement and the restructuring of American capitalism since the 1970s, including deindustrialization and the shift to neoliberalism. Bringing these fields together, this dissertation connects Detroit’s long-term economic transformation to …

Business Responsibilities For Human Rights And Climate Change - A Contribution To The Work Of The Study Group On Business And Human Rights Of The International Law Association, Sara L. Seck

Reports & Public Policy Documents

This contribution to the work of the International Law Association’s Study Group on Business and Human Rights considers the relationship between business responsibilities for human rights and climate change. While it is now widely accepted that the adverse effects of climate change undermine the enjoyment of human rights, and that businesses have a responsibility to respect human rights, the relationship between business responsibilities for human rights and climate change is unclear. This paper first considers state duties to protect human rights from climate change harms, including harms arising from business activities, and second, considers how the business responsibility to respect …

Paris, Panels, And Protectionism: Matching Us Rhetoric With Reality To Save The Planet, Abbey Stemler, Scott Shackelford, Eric Richards

Vanderbilt Journal of Entertainment & Technology Law

US rhetoric has not matched reality in the free trade or sustainability contexts, as may be seen by the ongoing debates surrounding a range of behaviors that violate international trade rules. The US government's failure to adhere to the rules that it was instrumental in crafting sets a particularly troubling precedent. These trade distortions reduce trust and respect among countries and undermine efforts to combat climate change. Simultaneously, we are witnessing a growing preference for "minilateral" agreements, as may be seen in the Obama Administration's push for the Trans-Pacific Partnership and US-EU Trade Pact. This trend is likely to continue …

Legal Challenges For "Leaving It In The Ground": Touchstone Development And Holdings, Steven Ferrey

Suffolk University Law School Faculty Works

Renewable technologies are proven as an alternative mechanism for power production and their costs are rapidly decreasing. This allows the U.S. deliberately to leave climate-changing fossil fuels in the ground. Utilities in several states are now attempting to extend the life of certain fossil-fuel generating assets and pull more fossil resources from the ground, often using federal ISO wholesale markets to try to cross-subsidize these older plants. However, law is not yet structured to accommodate a system where fossil fuel power generation remains in the ground as the nation switches to solar and wind power.

While able to store fossil …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Governmental Tort Liability For Disclosure Of Flood Hazard Information (Legal Fact Sheet Ctsg-17-04), Audrey Elzerman

Sea Grant Law Fellow Publications

Local governments and governmental entities, their employees, and members of their boards and commissions may be subjected to lawsuits in connection with municipal activities.This fact sheet reviews claims that may arise against them under tort law for negligence related to coastal management actions.

The Epa’S Endangerment Finding On Aircraft Greenhouse Gas Emissions: A Preliminary Analysis, Katherine A. Bechina, John C. Nettels, Brett A. Shanks

Journal of Air Law and Commerce

No abstract provided.

Book Review, The Electric Battery: Charging Forward To A Low-Carbon Future, Joel Eisen

Law Faculty Publications

The Electric Battery is the product of a Vermont Law School team led by Kevin Jones, the school’s Director of the Institute for Energy and the Environment. It is an essential resource for scholars, policymakers and others interested in the future for storage technologies in transportation and electricity, the sectors of the economy that produce the most greenhouse gases. Professor Jones brings considerable expertise to the project, having produced well-regarded reports on smart grid issues, and some projects mentioned in the book – such as the partnership between Tesla and Green Mountain Power – are located in the authors’ home …

Demand Response’S Three Generations: Market Pathways And Challenges In The Modern Electric Grid, Joel Eisen

Law Faculty Publications

Through a historical analysis spanning nearly five decades, this Article provides a comprehensive discussion of how demand response (reductions in electricity consumption in response to grid emergencies or price signals) has become both a growing resource on the electric grid and a policy trailblazer in the grid’s ongoing transformation. The discussion centers on three separate generations of efforts to promote demand-side measures in the electric grid, dating to the 1960s and oriented chronologically around important events in the electric power industry.

Demand response has been a test bed of important regulatory principles like frameworks for interactivity with the grid, the …

Regulating Cumulative Risk, Sanne H. Knudsen

Articles

This Article proceeds in four parts. Part I describes how cumulative risk assessments tackle the real-world exposure problems that lie at the heart of public health. It shows how risk science has evolved and why policy, not science, lags behind. Part II then examines why key public health concerns cannot be answered through information disclosure or consumer choice models alone.

Having established that regulatory drivers are needed, Part III begins to examine how to move forward. It does so by looking backward and examining how TSCA and FIFRA have failed historically to provide this critical public health focus despite room …

Water Governance In Haiti: An Assessment Of Laws And Institutional Capacities, Ryan Stoa

Faculty Publications

The Republic of Haiti struggles to sustainably manage its water resources. Public health is compromised by low levels of water supply, sanitation, and hygiene, and water resources are often contaminated and unsustainably allocated. While poor governance is often blamed for these shortcomings, the laws and institutions regulating water resources in Haiti are poorly understood, especially by the international community. This study brings together and analyzes Haitian water laws, assesses institutional capacities, and provides a case study of water management in northern Haiti in order to provide a more complete picture of the sector. Funded by the Inter-American Development Bank as …

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.

Green Home Standards: Information And Incentives, James Smith

Scholarly Works

The “green building” movement began in the United States during the 1990s. In its early stages, reformers focused on minimizing adverse environmental impacts from major public, institutional, and commercial buildings. Private-sector organizations developed voluntary standards to promote green building practices, the most prominent being LEED (Leadership in Energy and Environmental Design). More recently, widespread interest in residential green building has developed. Several organizations having developed voluntary green home standards. A standard promulgated by the federal government, the Energy Star Certified Home, has achieved substantial market success during the past decade. This article describes and assesses the Energy Star Home and …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2016, the United States Court of Appeals for the Eleventh Circuit addressed, for the second time, whether the Army Corps of Engineers (Corps) acted arbitrarily when it issued Nationwide Permit 21 (NWP 21), which authorizes dredge and fill activities by surface mining operations and applies differing standards to grandfathered operations and new operations. The court held that the Corps did not, and it upheld the permit. Also, the Eleventh Circuit held that the National Park Service did not act improperly under the Wilderness Act when it reduced the number of acres it considered to be eligible for designation as …

Survey Of 2016 Cases Under New York State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases in 2016 under the New York State Environ­mental Quality Review Act (SEQRA), which requires the preparation of an environmen­tal impact statement (EIS) for state or local governmental actions that could have a significant impact.

For only the second time since this annual survey began in 1991, no court overturned any agency decision where an EIS had been prepared. Eight challenges involved an EIS – all failed. In circumstances where there was no EIS, challeng­ers won four and lost 20. In sum, 2016 was a bad year for plaintiffs in SEQRA cases.

Predicting Stream Vulnerability To Urbanization Stress With Bayesian Network Mode, Dave Owen, Kristen K. Weil, Christopher S. Cronen, Spencer R. Meyer, Robert J. Lilieholm, Thomas J. Danielson, Leonidas Tsomides

Faculty Scholarship

No abstract provided.

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Scholarship@WashULaw

Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes, comingling of prosecutorial and adjudicatory functions, ex parte communications, and improper political influence. Where bias occurs, it can significantly impact the implementation and enforcement of environmental laws. Biased proceedings can undermine the goals of environmental laws by causing prejudiced decisions not grounded in law or fact, ultimately harming public health and the environment. The …

Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard

Faculty Scholarship

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered …

Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard

Faculty Scholarship

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to …

V. 8, 2017 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Planning For The Sun To Come Up: How Nevada And California Explain The Future Of Net Metering, Mark James, Ashleigh H. Krick, Kelsdy R. Bain

San Diego Journal of Climate & Energy Law

This Article explores the growth of rooftop solar and the future of net metering through the debates and policies of Nevada and California. Part II details the recent, rapid growth and projected future growth of solar power in the United States. Part II also describes how Nevada and Californiaare leading the nation in utilization of solar power and are already addressing issues that are likely to emerge in other areas of the country. Part III begins with a brief introduction to net metering and the national scope of net metering program reviews. Part III concludes with a summary of the …

Quick Fixes Or Real Remedies? The Benefits And Limitation Of Climate And Energy Fast Policy, Melissa Powers, Edward Jewell, Joni Sliger

San Diego Journal of Climate & Energy Law

To avoid these shortcomings, this article recommends that Oregon and other states lacking meaningful climate mitigation and energy decarbonization strategies slow down their policymaking so that they can first develop a long-term plan. These states should also ensure that their governance structures are in order. Specifically, states should ensure they have a governance system capable of designing, from the ground-up, a comprehensivestrategy to decarbonize the energy system and substantially reduce greenhouse gases by the middle of the century.[1] An adequate governance structure would also ensure that regulatory and planning agencies have the expertise, independence, and capacity to evaluate existing laws, …

From Top-Down To Bottom-Up Climate Policy: New Challenges In Carbon Market Design, Jonas Monast

San Diego Journal of Climate & Energy Law

This Article explores the shift from top-down to bottom-up approaches to carbon market design, focusing on three strategies that have emerged since 2009: the California Cap-and-Trade Program, the Clean Power Plan, and the UNFCCC process. The Article then examines the prospects for broad multilateral markets to emerge under a bottom-up approach and identifies three pathways to streamline market design choices: a coordinated approach; a dominant actor approach; and a common elements approach.

Do Mess With Texas ... ? Why Rolling Easements May Provide A Solution To The Loss Of Public Beaches Due To Climate Change-Induced Landward Coastal Migration, Carolyn Ginno

San Diego Journal of Climate & Energy Law

This paper explores the viability of rolling easements in California as well as how they might be implemented. California has the opportunity to use rolling easement doctrine to fill the public policy vacuum created by the Severance decision. By messing with Texas; precedent, California could utilize rolling easements to preserve public access to its beaches in the wake of coastal inundation resulting from climate change.
Determining whether and how rolling easements might be used in California requires an understanding of climate change as a man-made phenomenon and the impacts it has on coastal property. The next sections will outline this …

Discretion Bites: The Current State Of Animal Emergency Planning, Paige Chretien

San Diego Journal of Climate & Energy Law

Natural disasters have historically wreaked havoc on the lives of animals. Hurricane Katrina, which hit the gulf coast of Louisiana in 2005, exposed the tragic vulnerabilities of pets and pet owners in disasters and brought awareness to the significance of the human-animal bond.[1] As climate change will likely breed storms that are more deadly than their predecessors, planning and preparedness are essential to mitigating the impacts of these storms. The current status of animal emergency planning and preparedness in the state of California does not ensure that such vulnerable population will be adequately protected.
Part I begins by discussing the …

The Environmentalist Case For Sprawl- And Why It Fails, Michael Lewyn

Scholarly Works

Environmentalists generally favor compact, walkable development, because development that reduces automobile use may reduce automobile-related pollution. Defenders of suburban sprawl argue, however, that compact development may actually increase pollution in a variety of ways. This article criticizes the latter argument.,

The Colorado River Revisited, Jason Anthony Robison

University of Colorado Law Review

Fifty years ago, former Stanford Law School Dean Charles Meyers published The Colorado River, 19 STAN. L. REV. 1 (1966), arguably the most famous piece of legal scholarship ever written on this vital water source and the complex body of laws governing its flows-colloquially, the "Law of the River." That piece and a companion, The Colorado River: The Treaty with Mexico, 19 STAN. L. REV. 367 (1967), offered seminal accounts of the legal histories, doctrinal features, and unresolved perplexities of the Law of the River's international and interstate allocation framework. Five decades later, between thirty-five and forty million U.S. residents …

Clean Electrification, Shelley Welton

University of Colorado Law Review

To combat climate change, many leading states have adopted the aim of creating a "participatory"g rid. In this new model, electricity is priced based on time of consumption and carbon content, and consumers are encouraged to adjust their behavior and adopt new technologies to maintain affordable electricity. Although a more participatory grid is an important component of lowering greenhouse gas emissions, it also raises a new problem of clean energy justice: utilities and consumer advocates claim that such policies unjustly benefit the rich at the expense of the poor, given the type of consumer best able to participate in the …