Environmental Law Commons^™

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina S. Warren

Faculty Scholarship

It goes by many names: cannabis, marijuana, pot, chronic, grass, reefer, shwag, Mary Jane. Whatever the name, the trend is clear: the weed is legal but the herb ain’t green. Nearly half of all U.S. states have enacted—or have pending— legislation to legalize, decriminalize, or in some way permit the use and cultivation of marijuana. As a result, marijuana has become a significant topic of conversation in the U.S.— especially in the areas of social policy and criminal law. One conversation yet to reach fruition, however, is the industry’s projected impacts on energy demand and the climate. As the industry …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

The Woes Of Roe: The Future Of Women's Reproductive Health In 2015, Victoria Dempsey

Public Interest Law Reporter

No abstract provided.

The Responsible Investor’S Guide To Climate Change, Jeffrey D. Sachs, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Around the world, institutional investors – including pension funds, insurance companies, philanthropic endowments, and universities – are grappling with the question of whether to divest from oil, gas, and coal companies. The reason, of course, is climate change: unless fossil-fuel consumption is cut sharply – and phased out entirely by around 2070, in favor of zero-carbon energy such as solar power – the world will suffer unacceptable risks from human-induced global warming. How should responsible investors behave in the face of these unprecedented risks?

Memo To The Obama Administration On The U.S. National Action Plan On Responsible Business Conduct, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In January 2015, CCSI sent a memo to President Obama to provide input on the U.S. National Action Plan on responsible business conduct. The memo applauded the U.S. Government’s decision to develop a National Action Plan consistent with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, noting that responsible and rights-respecting outward investment can support sustainable development in host countries, and that the U.S. Government has an important role to play in promoting responsible business operations. The memo urged the government to explore in particular how the National Action Plan can address …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …

Environmental Justice As Civil Rights, Wyatt G. Sassman

Richmond Public Interest Law Review

Environmental justice litigation using the Equal Protection Clause and civil rights statutes has largely failed. This article explains that failure as a result of a general shift by federal courts to limit the scope of civil rights law rather than an improper characterization of environmental justice as a civil rights issue. This explanation is important to both encourage and caution environmental justice advocates and scholars as they approach claims under Title VIII. I suggest that Title VIII's ability to bridge property and dignity may still present a powerful and much-needed tool for bringing equality to environmental law, but that, based …

Stigmatized Sites And Urban Brownfield Redevelopment, Joel B. Eisen

Law Faculty Publications

This chapter addresses the "stigmatized sites" located in urban areas in the United States and Europe and the "brownfields" redevelopment programs aimed at removing the stigma and promoting remediation and reuse of these sites. Although the European Union has put regulatory frameworks in place, the United States has led the global effort to address brown fields redevelopment, and the discussion in this chapter will focus on American models for brown fields remediation and reuse.

Fracking, Federalism, And Private Governance, Amanda Leiter

Scholarly Articles in Law Reviews & Journals

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency.

Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and …

America’S Forgotten Nuclear Waste Dump In The Pacific, Michael B. Gerrard

Faculty Scholarship

During the Cold War the United States detonated sixty-seven nuclear weapons over the atolls of Bikini and Enewetak in the Marshall Islands. In the late 1970s the United States addressed the massive amount of residual contamination by abandoning Bikini as permanently uninhabitable and pushing much of the waste at Enewetak into the open lagoon. Much of the plutonium was dumped into the crater that had been left by an atomic bomb explosion, and then covered with a thin shell of cement. The resultant “Runit dome” sits unmarked and unguarded in a small island and one day will be submerged by …

Women Talking About Water: Feminist Subjectivities And Intersectional Understandings, Leila M. Harris, Jyoti Phartiyal, Dayna Nadine Scott, Megan Peloso

Articles & Book Chapters

In this study based on discussions held by women's groups across Canada on water challenges and interests, we recognized that in the current context in Canada, women are truly connected with peoples, humans or any other form of life. They recognize that water is socially embedded, integrating issues of social, ecological and intergenerational justice in relation to complex changes in riparian landscapes. Clearly their talk is from a gender perspective, but we also found movement beyond gender that nuanced cross-sectoral understanding, critical links between gender, class and ethnicity are frequently mentioned.

Regulatory Exit, J.B. Ruhl, James Salzman

Faculty Scholarship

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental …

How Local Discrimination Can Promote Global Public Goods, Timothy Meyer

Faculty Scholarship

International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government …

Eco-Environmental Risk Management, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

A History Of The Law Clinics At St. Mary's University School Of Law., Sue Bentch

St. Mary's Law Journal

Abstract Forthcoming.

Beyond Science And Hysteria: Reality And Perceptions Of Environmental Justice Concerns Surrounding Marcellus And Utica Shale Gas Development, Ann M. Eisenberg

Faculty Publications

The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial …

Restating Environmental Law, Irma S. Russell, Tracey Hester, Robert Percival, Victor Flatt, Joel Mintz

Faculty Law Review Articles

This article explores whether U.S. environmental law needs either a Restatement or other Project that would offer a comprehensive analysis, and it overviews possible reasons why the ALI has not previously undertaken such a Project.

Climate Change And International Peace And Security: Possible Roles For The U.N. Security Council In Addressing Climate Change, Dane Warren

Sabin Center for Climate Change Law

This paper considers what actions the United Nations Security Council has taken with regard to climate change thus far, and what actions the Security Council could legally take going forward. To this point, the U.N. Security Council (“UNSC” or “Council”) has played a very minimal role in addressing climate change. The UNSC has held two debates on the relationship between climate change and security, first in 2007 and then in 2011, the latter producing a formal Presidential Statement on the topic.

The U.N. Charter and the literature suggest that the UNSC could theoretically take two possible actions related to climate …

Heat In Us Prisons And Jails: Corrections And The Challenge Of Climate Change, Daniel W.E. Holt

Sabin Center for Climate Change Law

This paper addresses two important but largely neglected questions: How will increased temperatures and heat waves caused by climate change affect prisons, jails, and their staff and inmate populations? And what can correctional departments do to prepare for greater heat and minimize the dangers it poses?

An Analysis Of Senator Mcconnell's Letter Urging States Not To Comply With Epa's Clean Power Plan, Daniel Selmi

Sabin Center for Climate Change Law

On numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by …

States Should Think Twice Before Refusing Any Response To Epa's Clean Power Rules, Daniel Selmi

Sabin Center for Climate Change Law

The date is approaching for EPA to finalize its rules for controlling carbon dioxide emissions from existing power plants, and states are contemplating their responses to those rules. A number of commentators have recommended that states “just say no” to EPA and refuse to prepare state plans complying with the rules. Some states are considering bills and a few have enacted laws that would make it difficult for their state environmental agencies to prepare responses that EPA could accept. In turn, EPA has announced it will release a “federal implementation plan” (FIP) for states that fail to submit legally adequate …

Sustainability Reporting And New Governance: South Africa Marks The Path To Improved Corporate Disclosure, Ruth Jebe

Cardozo Journal of International and Comparative Law

The past decade has seen a dramatic increase in corporate disclosure of environmental and social information in the form of sustainability reporting. This growth trajectory, coupled with dissatisfaction with current reporting schemes, has fueled debate over the future of sustainability reporting. The discussion consists primarily of criticism of existing reporting systems and is often polarized between proponents of continued voluntary reporting and proponents of increased mandatory reporting. Missing from the debate is a critical recognition: the shortcomings of existing reporting mechanisms reflect the public policy drawbacks of the processes that created them.

This Article addresses the question of how to …

Tribes As Innovative Environmental "Laboratories", Elizabeth Ann Kronk Warner

University of Colorado Law Review

Tribes are not vestiges of the past, but laboratories of the future. - Vine Deloria, Jr1. Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over fifty-six million acres that make up Indian country. This Article-the first scholarly work to address this aspect of tribal environmental law advocates for the idea of tribes as "laboratories" for examining environmental regulation. Tribes enact environmental regulation by two primary means-in their capacity as "tribes as states" (TAS) and in their capacity as inherent sovereigns-both of …

How National Park Law Really Works, John Copeland Nagle

University of Colorado Law Review

This Article provides the first explanation of the relationship between three overlapping sources of national park law. It first explains how the Organic Act affords the National Park Service substantial discretion to manage the national parks, including deciding the proper balance between enjoyment and conservation in particular instances. It next shows how federal environmental statutes push national park management toward preservation rather than enjoyment. Finally, the Article explains that Congress often intervenes to mandate particular management outcomes at individual parks, typically but not always toward enjoyment rather than preservation. The result is that the National Park Service has substantial discretion …

Compromise In Colorado: Solar Net Metering And The Case For "Renewable Avoided Cost", Alexander D. White

University of Colorado Law Review

No abstract provided.

Is The Bay Delta Conservation Plan Adequately Funded?, Vincent Vu

UC Law Environmental Journal

No abstract provided.

Isolated Wetland Commons And The Constitution, Blake Hudson, Michael Hardig

Journal Articles

Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This Article makes a normative argument that, in the absence of state or local programs providing holistic isolated wetland protection, federal action is needed. The …

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Faculty Scholarship

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …