Environmental Law Commons^™

Litigation Against Fracking Bans And Moratoriums In The United States: Exit, Voice And Loyalty, Christopher J. Hilson

William & Mary Environmental Law and Policy Review

A number of U.S. states, counties and municipalities have responded to the public health and environmental concerns surrounding fracking by imposing bans or moratoriums on unconventional oil and gas drilling. These restrictions have, in recent years, given rise to litigation challenges by oil and gas companies and by property owners deprived of potential revenues. The current Article begins by examining precisely who has litigated. Have large companies dominated or is it mostly smaller independents? Is there a difference in litigation rates between private and public companies? The Article then considers how Hirschman’s ideas of exit, voice and loyalty might apply …

Coercing Collaboration: The Chesapeake Bay Experience, Jamison E. Colburn

William & Mary Environmental Law and Policy Review

This Article uses a detailed case study of the Chesapeake to describe an emergent model of intergovernmental administration tailored to address our largest-scale environmental problems. The Obama EPA’s “total maximum daily load” (“TMDL”) in the Chesapeake has yet to be replicated. But it should be. The TMDL and its supporting norms were unique as an operational plan, achieving a level of transparency, accountability, means/ends rationality, and continuous improvement that were unprecedented at its scale. And whether this model can be replicated elsewhere turns out to be as much a question of law as of politics.

A Legacy That No One Can Afford To Inherit: The Gold King Disaster And The Threat Of Abandoned Hardrock Legacy Mines, Kelly Roberts

Journal of the National Association of Administrative Law Judiciary

This article begins with a description of the alarming matter of abandoned mines, mainly due to the issue of acid mine drainage. Then, it provides a detailed account of the Gold King disaster, including the current state of affairs surrounding the question of EPA liability. Next, it provides a simplified overview of some of the federal statutory hurdles that make it difficult to tackle remediation of abandoned hardrock mines. In wake of Gold King, another round of legislation has been proposed that might help, and these proposed bills center on familiar themes of reforming the General Mining Law of 1872 …

Rights Of Publicity: A Practitioner's Enigma, Gil N. Peles Esq.

Journal of Intellectual Property Law

No abstract provided.

Environmental Law - Oil Pollution Control - In The Absence Of Federal Preemption And Any Fatal Conflict Between Statutory Schemes, A State May Constitutionally Exercise Its Police Power To Provide For Cleanup Of Oil Spillage And For Recoupment Of Costs Concurrently With The Federal Government, Mary E. Deal

Georgia Journal of International & Comparative Law

No abstract provided.

Weather Modification: A Modest Proposal, Lawrence A. Weirs

Georgia Journal of International & Comparative Law

No abstract provided.

International Fisheries Regulation, John P. Rivers

Georgia Journal of International & Comparative Law

No abstract provided.

Complexity Analysis: A Preliminary Step Toward A General Systems Theory Of International Law, James L. Hildebrand

Georgia Journal of International & Comparative Law

No abstract provided.

Focusing On Human Responsibility Rather Than Legal Personhood For Nonhuman Animals, Richard L. Cupp Jr.

Pace Environmental Law Review

We should focus on human legal accountability for responsible treatment of nonhuman animals rather than radically restructuring our legal system to make them legal persons. This essay, provided at the kind invitation of the Pace Environmental Law Review (PELR) and Steven Wise, President of the Nonhuman Rights Project, Inc., outlines a number of concerns about animal legal personhood. It does so primarily in the context of the plaintiff’s brief in The Nonhuman Rights Project, Inc. v. Lavery, filed in the New York Supreme Court, New York County. The first Lavery lawsuit (Lavery I) was filed in Fulton County in late …

Understanding The Lloyd Moratorium And The Science That Supports It, Sarah J. Meyland

Pace Environmental Law Review

This article examines the background to the enactment of the Lloyd Moratorium, the role of science, and a discussion of why limits on certain groundwater use are appropriate. Section Two reviews the history of the Lloyd Moratorium and the challenges to it. The role of the State in implementing the moratorium is also considered. Section Three describes the current guidelines for Lloyd well permits. Section Four reviews the vulnerability of the Lloyd aquifer. Section Five discusses the necessity of setting a high bar for Lloyd aquifer access. Section Six concludes with an outline of how the Long Island aquifer system …

Extraterritoriality, Externalities, And Cross-Border Trade: Some Lessons From The United States, The European Union, And The World Trade Organization, Max S. Jansson

Pace Environmental Law Review

In this article, process and production method (PPM) rules are analyzed under three jurisdictions: the United States, the European Union (EU), and the World Trade Organization (WTO. The approach is justified by the fact that their rules on interstate trade reflect very similar basic objectives related to anti-protectionism. Moreover, the regimes, to a large extent, share the same structure of rules on prohibition balanced with rules on justification. All in all, the regimes reveal similar syntax. The comparability of the U.S. Dormant Commerce Clause Doctrine with both WTO law and EU free movement law has been highlighted already in previous …

Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner

Pace Environmental Law Review

This article considers what role, if any, can tribal environmental ethics play in the re-examination and consideration of American environmental ethics? The answer—quite a substantial role. Tribes must straddle two worlds—a traditional one and one dominated by Western culture and values. As a result of this dichotomy, tribes are necessarily experts at adaptation and innovation. To demonstrate the value of looking to tribal environmental ethics when considering alternative ethical paradigms for the United States, this article begins by discussing the link between environmental ethics and policy making. With this understanding in place, the article then examines the importance of environmental …

Learning To Live With The Trickster: Narrating Climate Change And The Value Of Resilience Thinking, Robin Kundis Craig

Pace Environmental Law Review

This article is based on the 2015 Pace Garrison Lecture that occurred on April 1, 2015. Fittingly for a talk given on April Fool’s Day, this article focuses on tricksters. It posits that framing climate change as one incarnation of a mythological trickster can give us a better cultural narrative framework for thinking about environmental, natural resources, and energy law and policy in a climate change era. The trickster narrative can helpfully displace the dominant engineering framework that informs most of American10 environmental, natural resources, and energy law and policy and open the way to a more productive policy context …

Proactive Natural Disaster Recovery And Resilience In The Northeast: Should Governments Exercise Buyout Programs And, If Necessary, Eminent Domain, To Prevent Disaster?, Stellina Napolitano

Pace Environmental Law Review

In light of the devastation left behind by the three most recent natural disasters in the northeast region—Hurricane Irene, Tropical Storm Lee, and Superstorm Sandy—local and state governments are now implementing “buyout programs” in order to protect the future of beachfront and flood-prone communities. These programs may not be a perfect solution, so, while positions differ on whether to pursue taking private properties by use of eminent domain, it may be a favorable option in order to attain the ultimate goal of safety and resilience against future disaster. Section II of this paper will analyze the background and impacts that …

Reevaluating Wilderness Classification And Management In The Face Of Climate Change: A Reconsideration Of Values And Ecology, Katherine Fiedler

Pace Environmental Law Review

In recognizing that the very nature of wilderness is a human construct, the values sought to be preserved can and should be reevaluated, considering the importance of wilderness in light of climate change and global ecosystem resilience, as well as how wilderness is designated and managed. Furthermore, the values that wilderness provides us will dramatically increase as climate change proceeds. Section II of this article describes the basics of wilderness protection, including the evolution of our relationship with wilderness, the history of the Wilderness Act, and what, how, and why wilderness is protected under the Act. Section III explores how …

City Sustainability Reporting: An Emerging & Desirable Legal Necessity, Adam J. Sulkowski

Pace Environmental Law Review

This article will begin with a brief history of sustainability reporting, including recent developments related to its adoption by cities. The author will then review two major trends that, considered together, indicate sustainability reporting should be viewed as an emerging legal necessity for municipalities in the United States. First, the exemption shielding cities from the disclosure requirements of securities laws has eroded. Second, sustainability disclosures now fit the definition of what must—as a matter of materiality, if not specific mandates—be reported to investors. This means that the cities that have collectively issued over $3.67 trillion in securities2 should all be …

Troubled Water: An Examination Of The Npdes Permit Shield, Stephanie Rich

Pace Environmental Law Review

In this comment I argue for a narrow interpretation of the Clean Water Act (CWA) permit shield by analyzing the recent federal cases addressing the shield’s scope. A narrow interpretation calls for a greater level of compliance and disclosure on behalf of the permit holder in order to invoke the shield’s protection. This argument also includes a higher standard of “reasonable contemplation” of pollutants on the part of the regulator. The first section of this comment gives a brief background of the CWA, the National Pollutant Discharge Elimination System (NPDES), and the permit shield provision. The next section presents the …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Pace Environmental Law Review

This article argues that neo-classical economics places an emphasis on short-term gain over precaution, and in doing so, places the lives of a myriad of individual humans—and even the species itself—at risk. Given the foreseeable risks, if humanity wants to survive longer, we need to rethink our economic principles and priorities and the relationship between economics and law.

I begin with a most brief overview of the various sources of risk to the human species and its life support system. Then I will move on to look at how neo-classical economics interacts with significant risk.

Finding Opportunities To Combat The Climate Change Migration Crisis: The Potential Of The “Adaptation Approach”, Mariya Gromilova

Pace Environmental Law Review

The aim of this article is to demonstrate the benefits of applying adaptation approach in conceptualising the issue of climate-induced population movement and its potential to respond to the main priorities to be addressed in the context of population movement induced by climate change. This article proceeds with Section 2, which provides an overview of the main difficulties to conceptualization of the issue of climate induced population movement from empirical and legal perspectives. Section 3, drawing upon the state of play presented above, identifies the main priorities that have to be addressed. Section 4 focuses on the opportunities the Cancun …

Filling Holes In The Air: Why The Ninth Circuit In Pakootas V. Teck Cominco Should Decline To Open Up A New Hole In Coverage That Would Circumvent Cerla Arranger Liability For Sites Contaminated By Aerial Emissions, Frank Cioffi

Washington Journal of Environmental Law & Policy

In order to frame the legal controversy, Part II of this comment provides background information on the relevant provisions of CERCLA, RCRA, and the Clean Air Act, and presents a brief summary of the physical and legal history of the Teck Cominco smelter and the Upper Columbia River site. Part III of this comment analyzes the controversy by examining the statutes themselves, as well as recent developments in the case law regarding arranger liability. While the statutes and the case law establish liability on their own, Part III also looks to the legislative history and finds confirmation that Congress intended …

Contents, Anon

Washington Journal of Environmental Law & Policy

No abstract provided.

Arctic Law & Policy Year In Review: 2015, Arctice Law & Policy Institute, University Of Washington

Washington Journal of Environmental Law & Policy

No abstract provided.

Arctic Law & Policy Year In Review: 2015, Arctice Law & Policy Institute, University Of Washington

Washington Journal of Environmental Law & Policy

No abstract provided.

Filling Holes In The Air: Why The Ninth Circuit In Pakootas V. Teck Cominco Should Decline To Open Up A New Hole In Coverage That Would Circumvent Cerla Arranger Liability For Sites Contaminated By Aerial Emissions, Frank Cioffi

Washington Journal of Environmental Law & Policy

In order to frame the legal controversy, Part II of this comment provides background information on the relevant provisions of CERCLA, RCRA, and the Clean Air Act, and presents a brief summary of the physical and legal history of the Teck Cominco smelter and the Upper Columbia River site. Part III of this comment analyzes the controversy by examining the statutes themselves, as well as recent developments in the case law regarding arranger liability. While the statutes and the case law establish liability on their own, Part III also looks to the legislative history and finds confirmation that Congress intended …

Hickory Dickory Dock, The New Jersey Supreme Court Stops The Clock: Legislature Must Reform The Spill Act Following Morristown Associates V. Grant Oil, Maria Salvemini

Villanova Law Review (1956 - )

No abstract provided.

The Water-Energy-Climate Nexus Under International Law: A Central Asian Perspective, Anatole Boute

Michigan Journal of Environmental & Administrative Law

Water, energy, and climate change are intrinsically related to each other but are nonetheless subject to different international legal regimes. The fragmented nature of water, energy, and climate governance represents a challenge for the sustainable management of resources in the energy and water landscape of the 21st century. Regulatory choices in one field can potentially undermine the policy objectives pursued in the other fields. Promoting conventional and unconventional energy production for energy security purposes increases pressure on the availability of fresh water resources and contributes to climate change. Climate change exacerbates the scarcity of water resources, which leads to increasing …

Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott

Michigan Journal of Environmental & Administrative Law

The electric utility sector is in the midst of paradigmatic change. Market forces include decreased load growth, technological advances in distributed energy resources, pressures for decarbonization, and demands for increased efficiency and new utility services. Meanwhile, as the utility monopoly is undermined and profits slow, financial analysts signal increasing risk to potential utility investors. Suggestions for transforming the existing regulatory structure abound. At the broadest level, such proposals reflect an established divide between energy policy, which traditionally focuses on economics and markets, and environmental law, which is based in the protection of natural resources and ecosystems. To marry the two …

Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren A. Prum

Michigan Journal of Environmental & Administrative Law

A United Nations Environmental Programme report addressing climate change states that the built environment in both emerging and developed countries accounts for more than forty percent of global energy usage and at least one third of the world’s greenhouse gas emissions. The report further asserts that the built environment offers an unsurpassed opportunity to supply cost effective, lasting, and meaningful reductions in greenhouse gas emissions. In response to this call to action, state and local governments in the U.S. have turned to a variety of policies to ensure that real estate developments within their jurisdictions further green building objectives. However, …

Major Questions About The "Major Questions" Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court …

Economic Solutions To Nuclear Energy's Financial Challenges, Zachary Robock

Michigan Journal of Environmental & Administrative Law

This Note presents a legal, economic, and regulatory roadmap to drive long-term innovation in sustainable energy generation. Next-generation nuclear power, which fundamentally mitigates many safety and nuclear waste issues, is the focus of this Note; however, the economic concepts can be applied to encourage solar, wind, advanced battery, and other sustainable technologies with high upfront costs and low long-term variable costs. Advanced nuclear energy generation is economically competitive on a long-term levelized cost basis, but suffers from a timing issue—a large amount of capital is needed upfront, with repayment over several decades, during which time significant capital costs can accrue …