Environmental Law Commons^™

The Extraordinary Drought Provision And The Future Of The Rio Grande Water Deliveries Under The 1944 Us–Mexico Water Treaty: An Exploratory Policy Analysis, Rosario Sanchez, Stephen P. Mumme, Gabriel Eckstein

Faculty Scholarship

The ‘extraordinary drought’ provision contained in the legal framework governing water allocation between Mexico and the United States has been applied differently on the Colorado River, Upper Rio Grande, and Lower Rio Grande. While the provision has been interpreted to require proportional water allocation reductions during droughts for both parties on the Colorado and Upper Rio Grande, it has been applied very differently on the Lower Rio Grande where it binds Mexico to make up delivery shortfalls in subsequent cycles. Given climatic, economic, and population pressures in the Lower Rio Grande basin, application of the ‘extraordinary drought’ provision requires reconsideration.

Liability Considerations For Marine Carbon Dioxide Removal Projects In U.S. Waters, Korey Silverman-Roati, Martin Lockman, Romany M. Webb

Sabin Center for Climate Change Law

Scientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Ocean-based approaches, also known as marine CDR, hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has …

Climate Change Litigation In New York, Michael B. Gerrard

Faculty Scholarship

Numerous lawsuits have been brought in the federal and state courts in New York concerning climate change. Some were under two important state statutes on the subject – the Climate Leadership and Community Protection Act of 2019 (CLCPA)and New York Climate Superfund Act of 2024. Others are brought under various common law, consumer protection, securities, and other theories. This column describes the most important of these cases.

The Dormant Power Of State Agencies To Fight Environmental Racism, David Handelman-Holmes

Michigan Law Review

Despite repeated promises by Democratic presidents to address environmental justice (EJ), meaningful federal action on the issue remains elusive. The EJ obligations that have been imposed on federal agencies are all purely procedural, not substantive. Such procedural obligations—like filing environmental impact statements and providing forums for community feedback—may facilitate greater transparency and accountability from industry and government agencies. But in the absence of more substantive obligations—like stricter emissions caps in highly burdened communities of color—these procedural requirements are often satisfied through mere box-checking. Meanwhile, litigants pursuing relief through the U.S. Constitution’s Equal Protection Clause face closed courthouse doors unless they …

Conference Report: Attribution Science And Climate Law, Jessica A. Wentz

Sabin Center for Climate Change Law

This report provides a summary of proceedings from the Attribution Science and Climate Law conference hosted at Columbia University on January 9-10, 2025. The conference brought together a diverse group of researchers and practitioners to share insights on the status of climate change attribution research and its relevance to climate law and policy. Participants included physical scientists, public health researchers, economists, social scientists, legal scholars, and legal practitioners. The core goals of the event were to facilitate interdisciplinary discussion, advance substantive knowledge in this field, and promote ongoing collaboration between the scientific, legal, and policy-making communities.

Exploring Managed Retreat Pathways To Community-Led Resilience 1-31-2025, Roger Williams University School Of Law, Marine Affairs Institute

School of Law Conferences, Lectures & Events

No abstract provided.

Standing To Enforce The Future: Citizen Suits And Climate Change, Jordan Budd, Margaret Sova Mccabe

Law Faculty Scholarship

This Article takes as its starting point the premise that Congress, facing an existential climate catastrophe, might choose to impose direct and significant restrictions on greenhouse gas (GHG) emissions. Were it to do so, federal policy would require powerful enforcement mechanisms to reach the myriad emission sources fueling the nation’s vast contribution to global warming.

Among the most potent and far-reaching enforcement tools available to Congress are citizen suits—actions brought by private litigants to enforce federal regulations and to hold agencies accountable for related inaction. Private enforcement in the context of climate change, however, faces a nearly insurmountable barrier—Article III …

The United States' Recycling Model Is In Desperate Need Of A Makeover, Lindsay A. Williamson

Widener Commonwealth Law Review

Most Americans do not hesitate to throw something away, but a lack of recycling is causing landfills to overflow with products that could be reused and repurposed. In 2017, it was estimated that the average American creates 4.51 pounds of garbage per day, nearly double the amount of the 2.68 pounds Americans produced on average in 1960. Recycling in the United States has become problematic as recycling companies turn away recyclables that have been contaminated with food and other nonrecyclables. The effect is that not nearly enough recyclable products are being repurposed, with many of them ending up in landfills. …

Rising Tides And Shifting Sands: Inadequacies In American Climate Responses And An Urgent Call For A Federal Climate Adaptation Policy, Armand J. Avila

Texas A&M Journal of Property Law

Climate change is an increasingly prevalent issue in policy discussions across the United States. Its effects can be observed and measured across ecosystems, industries, and legal jurisdictions, and it is felt in the homes of the people who live and work at the forefront of its impacts. Yet, the federal government’s current policies incentivize states, localities, and private citizens to make poor climate decisions and to put themselves at risk, leading to population growth and property development in some of the most at-risk areas of the country. At the same time, the federal government operates on an outdated disaster response …

The Economic Rhetoric Of Carbon Pricing, Jeff Todd

Brooklyn Law Review

Economists overwhelmingly prefer the carbon pricing instruments of carbon taxes and cap-and-trade programs as the most cost-effective way to reduce greenhouse gases and combat climate change. By contrast, US lawmakers have largely eschewed carbon pricing, and legal scholars have mixed views about implementing it. In order for legal scholars to better understand economic studies on carbon pricing and incorporate those studies into their own climate change scholarship, this Article turns to the rhetoric of economics. Economists view problems like climate change through the metaphor of the market, so they embrace carbon pricing because it is a market-based approach that corrects …

The Formula For “Sustainable” Tuna, Brianna M. Grimes

Pace Environmental Law Review

Tuna is one of the most popular types of seafood. But in today’s market, consumers want more than just good taste; they want to know that the food they eat is sustainably sourced. A major obstacle plaguing the tuna industry and hindering sustainability is bycatch—the incidental catch of non-target species. To begin, this paper will provide an overview of the history and inherent problems of tuna fishing, and the existing public laws and regulations, both at the national and international level, that govern fisheries. Next, this paper will identify private environmental governance initiatives undertaken by the industry to fill the …

Arbitrators Of Environmental Disputes: The Guardians Of Natural Resources, Isabella Mazzei

Pace Environmental Law Review

According to the International Energy Agency, to achieve net zero emissions by 2050, global investment in clean energy must more than triple, reaching $4 trillion. More investments in technology for clean energy and infrastructure means more transactions across major industries. This inevitably translates to the potential for more disputes, including environmental concerns. Most energy related disputes are predicted to arise in the oil and gas sector, the power generation sector, and the offshore renewable sector. Arbitration presents an appealing option to efficiently resolve these emerging conflicts. This paper highlights the growing importance of arbitration in resolving environmental disputes. To explore …

Tfpa, Wildfire Mitigation, And The Dissemination Of Indigenous Knowledge, Lauren Palmer

Pace Environmental Law Review

The United States is experiencing a multitude of environmental issues across the country, including increasingly frequent and disastrous wildfires. Simultaneously, Indigenous persons are demanding their right to self-sovereignty and working to preserve intergenerational Indigenous Knowledge including cultural burning practices. Cultural burning is a practice of many Indigenous tribes that help environments and the species that comprise them, foster and grow. To further help tribes with their mission in keeping Indigenous Knowledge alive and to reduce the frequency and severity of destructive wildfires, this article argues the federal government should amend federal acts to provide Indigenous tribes with a greater opportunity …

The Role Of Private Liability In The Fight Against Climate Change, Matthew Salavitch

Pace Environmental Law Review

Parties have increasingly turned to courts both to seek redress for current climate-related harms and to compel states and private actors to reduce their future GHG emissions. As a result, courts around the world have been faced with the task of defining the proper role of the judiciary in fighting climate change. In the United States, however, many courts have had difficulty defining the judiciary’s proper role in providing redress for climate-related harms, especially in relation to comprehensive federal regulation of air pollution under the Clean Air Act (CAA). Considering the uncertainty surrounding the preemptive effect of the CAA on …

Ngo Partnerships Providing Legitimacy To Private Environmental Governance, Isabelle Hayes

Pace Environmental Law Review

The climate crisis is one of the most pressing issues our world faces today. Traditionally, the government has been the actor to facilitate change in the environmental governance realm. However, an absence in comprehensive environmental action and legislation has led to the emergence of another framework—private environmental governance. Private environmental governance allows actors from the private sector to fill the gaps of government inaction on environmental issues and lead the sustainability movement. A concern of private action is the absence of legitimacy, which can come with government action. Thus, private companies can choose to engage in partnerships with nongovernmental organizations …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

St. John's Law Review

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force …

Town Hall On The Sustainable Development Goals And Racial Justice In Miami–Dade County, Tamar Ezer, Denisse Córdova Montes, Abigail L. Fleming, Lily Arslanian, Kristina Bergman, Jordan Brooks, Alexis Burns, Cassandra Hacker, Zoe Henderson, Estefania Hernandez, Alyssa Huffman, Photini Kamvisseli Suarez, Brianna Sanchez, Lakshmi Sanmuganathan, Gabrielle Thomas, Abigail Wettstein

University of Miami Race & Social Justice Law Review

No abstract provided.

Climate Proof Electricity, Kristen Van De Biezenbos

Utah Law Review

The devastating impacts of climate change make themselves known in the form of fires, floods, droughts, storms, extreme heat and cold, and worsening socioeconomic conditions around the globe. At the same time, the U.S. electricity system has never been more vulnerable to severe weather. Even as we embark on a national project to decarbonize the electricity system by 2035, the U.S. leads the developed world in power outages. These outages are in large part due to aging infrastructure, improperly weatherized systems, vegetation crashing down on transmission and distribution lines and—perhaps most devastating of all—wildfires caused by fallen power lines in …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Utah Law Review

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Faculty Scholarship

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Managing The Trade-Climate Policy Interface Through Open Plurilateral Agreements: Learning From The Eu Deforestation Regulation Experience, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

Trade policies motivated by security or commercial interests are increasingly complemented by trade measures that seek to induce foreign producers to green their production processes. A prominent example is the EU Deforestation Regulation (EUDR). Such unilateral measures are unlikely to be efficient, and at the limit may simply be ineffective. In this paper we use the EUDR experience to make the case for countries seeking to use trade policies to negotiate jointly defined approaches to achieve nontrade goals. We consider the scope for doing so in the framework of trade agreements and through stand-alone, issue-specific open plurilateral agreements (OPAs). We …

Cleaning The Plastic Spring, Trip Johnson

Vanderbilt Law Review

Everyday plastic items typically display the chasing arrows symbol with a resin identification code. When seen on a plastic product, this seemingly insignificant trade combination causes the average consumer’s mind to confer unwarranted environmental benefits to the item. Plastic, unlike aluminum, glass, or paper, poses barriers to recycling that diminish a region’s recycling capabilities. Despite knowing most Americans lack the knowledge necessary to properly discard plastic waste, plastic-producing companies continue to plaster chasing arrows symbols and resin identification codes onto their products. Worse yet, these companies do so without explaining the available recycling opportunities or challenges associated with recycling most …

The Role Of Marine Co2 Removal In Combating Climate Change, Sarah Vican, Meghan Gavin, Wil Burns, Douglas Edwards, Romany M. Webb

Sabin Center for Climate Change Law

Combating climate change requires not only rapid reduction of greenhouse gas emissions, but also removal of significant amounts of carbon dioxide (CO2) from the atmosphere. CO2 removal (CDR) comes in many different forms, but climate scientists and policymakers are focusing on the potentially important role of large-scale use of emerging ocean-based techniques, often referred to as marine CDR (mCDR). In the United States, mCDR in domestic waters is governed by a patchwork of laws and regulations. There are also major uncertainties concerning regulation of mCDR in the open ocean, where international treaty regimes have struggled to develop coherent rules. On …

State Trust Land Revenue Diversification Through Conservation, Temple Stoellinger, Bryan Leonard, Travis Brammer, Shawn Regan, Jonathan Wood

Utah Law Review

Western states oversee tens of millions of acres of state trust lands granted to them by the federal government more than a century ago to fund public education and other public services. Traditionally, these lands have been leased for energy development, timber harvesting, livestock grazing, and other consumptive uses to generate income for the trust’s beneficiaries. However, evolving markets and societal values present both novel opportunities and challenges for state trust land managers. This Article finds that states are not only permitted but obligated to consider revenue generation through conservation or other nonconsumptive uses to meet their enduring trust responsibilities. …

Litigating Predator Management, John A. Erwin

Utah Law Review

Despite significant gains over the last half-century, predators such as mountain lions, wolves, and bears are in the crosshairs once again. Scientific management, democratic principles, and the holding of wildlife resources in trust for the public are all foundational pillars of the North American Model for Wildlife Conservation, yet state wildlife agencies and legislatures routinely fail to uphold these values where predators are concerned. Many of these tensions were thrust into the public consciousness in 2020 when gray wolves were temporarily delisted under the Endangered Species Act (ESA), resulting in a disastrous wolf hunting season in Wisconsin. States that have …

The Puzzling Persistence Of Nature’S Rights, Sam Bookman

Utah Law Review

The American experience of rights of Nature—the legal recognition of the rights and personhood of natural phenomena—presents a puzzle. On the one hand, no court has ever recognized such rights. Rights of Nature laws are routinely struck down and have proven impossible to enforce. On the other hand, dozens of communities, including municipalities and Native American tribes, continue to enforce them while scholars debate them endlessly. Why do rights of Nature persist?

Through analysis of 119 laws and 32 interviews with rights of Nature activists, I offer the first empirically-grounded answer to this question. Rights of Nature persist because of …

Regulating Light Trucks And Suvs: Making America’S Roads Safer And Air Cleaner, Daniel Delap

Utah Law Review

The increase of trucks and SUVs on the roads in the United States has made streets less safe while contributing to poorer air quality. Compared to other vehicles, trucks and SUVs have a higher center of gravity, a ridged vehicle frame with a larger engine block, a heavier weight requiring more gas to move, and emitting more greenhouse gases. These vehicle features make accidents more common, decrease driver visibility, increase the potential for pedestrian fatalities, and make car accidents more deadly for non-truck or SUV vehicles. This Note explores solutions to these issues and discusses regulatory actions that the Environmental …

Taking Back Control: Using The Takings Clause To Hold Animal Agriculture Responsible For Its Waste Problem, Rowan Aragon

Northwestern University Law Review

Between the mid-twentieth century and modern day, the animal-agriculture model has shifted from small farms to industrial operations. During that evolution, the negative externalities of animal-farming practices have intensified. One of those externalities—animal waste—has become particularly problematic. Because of the sheer number of animals raised in the United States for slaughter and dairy production, the magnitude of animal waste produced is overwhelming. To deal with this problem, animal farmers often liquefy the animal waste and then spray it onto open fields. In that spraying process, liquefied animal waste carries through the air and reaches nearby homes, coating those properties with …

First In Time Since Time Immemorial: Tribal Instream Rights Undercut Water Taking Claims, Paul Stanton Kibel, L. Victoria Wang

American Indian Law Journal

Courts have held that American Indian tribal fishery rights can give rise to tribal instream flow rights. They have also held that the curtailment of rights of diversion to protect fisheries under the Federal Endangered Species Act may give rise to potential takings claims under the Fifth Amendment of the United States Constitution. In its 2019 decision in Baley v. United States the federal circuit court of appeals held that minimum instream flows under the ESA were needed to fulfill American Indian tribal fishery rights, and these rights carried a priority date of “time immemorial” that was senior to any …

The Navajo Nation And The Colorado River: Their Current Statuses And The Tribe's Path Forward, Colton Gregg

American Indian Law Journal

No abstract provided.