Environmental Law Commons^™

Acknowledgment Of Supporters, Utton Center, University Of New Mexico - School Of Law

Water Matters!

List of supporters.

The Democratization Of Energy, Joseph P. Tomain

Vanderbilt Journal of Transnational Law

The electricity industry is changing in dramatic ways. Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

An Examination Of El Niño's And Agricultural Runoff's Effect On Harmful Algal Blooms And California Sea Lion (Zalophus Californianus) Health In Monterey Bay, Nadine Lafeber

Scripps Senior Theses

An increase in marine mammal stranding and die-off events has been observed along the California coast. The exact cause to explain for these recent events is unknown, but El Niño and harmful algal blooms are established sources for temporary decreases in marine mammal health. To determine whether El Niño could be causing and amplifying harmful algal blooms, particularly in Monterey Bay where they occur frequently, data was analyzed from the Marine Mammal Center in Sausalito, California. Data analysis focused on California sea lions (Zalophus californianus), because they have the largest data set and are directly affected by harmful …

Adapting Conservation Easements To Climate Change, Adena R. Rissman, Jessica Owley, M. Rebecca Shaw, Barton H. Thompson Jr.

Journal Articles

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. Although only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent terms on private lands. CEs often have multiple, potentially conflicting purposes that protect against …

Keeping Track Of Conservation, Jessica Owley

Journal Articles

Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. …

A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon M. Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs

Journal Articles

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

"It Doesn't Seem Very Fair, Because We Were Here First": Resolving The Sioux Nation Black Hills Land Dispute And The Potential For Restorative Justice To Facilitate Government-To-Government Negotiations, Rita Lenane

Cardozo Journal of Conflict Resolution

Part II of this Note outlines the historical background of the Black Hills land claim. Part III describes the legal avenues taken by the Sioux in the past and those currently open to them, examining the different ways that Native Americans can pursue land claims and the potential each branch of government has to resolve the conflict. Part IV discusses President Barack Obama's unique relationship to the Indian community, and explores the ideals and goals of restorative justice, proposing that these ideas can usefully be incorporated into a comprehensive negotiation between the federal government and the Sioux, comparing the positive …

How National Park Law Really Works, John Copeland Nagle

Journal Articles

This article provides the first explanation of the relationship between the 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. Third, 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 NPS has substantial discretion to manage national parks in …

Immigrant Labor In Fish Processing In The Pacific Northwest And British Columbia And Current Undocumented Labor, Adi D. Salinas Ferreira

Pomona Senior Theses

The beginning of industrialized fish processing plants reveals themes of labor exploitation, racial and gender segregation, and antagonistic legislation that have continued well into the present. Today in the Pacific North West, the majority of workers are Latino and many among them are undocumented or DACAmented. Many aspects of the work conditions in salmon canneries back in the late 1800’s to the mid 1900’s and the work conditions in present day fish processing plants have not changed. Many jobs in a fish processing plant remain gendered, and when there is more than one race working in a single plant racial …

Preservation Is A Flawed Mitigation Strategy, Jessica Owley

Journal Articles

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …

Fukushima's Shadow, Lincoln L. Davies, Alexis Jones

Vanderbilt Journal of Transnational Law

The March 11, 2011 tragedy at the Fukushima Daiichi power station in Japan immediately etched its place in history as arguably the most noteworthy of the three nuclear energy disasters to date. This Article surveys the response to Fukushima both in Japan and worldwide. It observes that rather than stopping what many thought was a burgeoning "nuclear renaissance," the global policy reaction post-Fukushima was more varied. Using the examples of Germany, the United States, and China, the Article examines the three general approaches to nuclear energy that nations have followed since Fukushima: abandonment, status quo, and expansion. The Article then …

Who Speaks For The Fish? The Tragedy Of Europe's Common Fisheries Policy, Emily Self

Vanderbilt Journal of Transnational Law

The Common Fisheries Policy, enacted in 1983 as the European Union's primary overfishing regulation scheme, is widely regarded as a failure. Vast over exploitation in Europe's fisheries persists thirty years later, posing grave ecological consequences as well as economic devastation to Europe's fishing industry. In 2013, the EU overhauled the Common Fisheries Policy and enacted measures that oblige the EU and member states to support ecologically sustainable fishing practices, ban the harmful practice of discarding fish at sea, and give the member states more flexibility to tailor implementation to suit local conditions. While the 2013 reforms were momentous, those changes …

The Environmentalist Attack On Environmental Law, John Copeland Nagle

Journal Articles

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law …

Safe And Sound: How Adr Can Protect Aquatic Life And National Security, James Diskint

Cardozo Journal of Conflict Resolution

Part I of this Note examines the background of the LFA conflict, introducing the reader to the parties involved in the litigation, the nature of LFA sonar technology, the applicable statutory laws, and the litigation history. Part II outlines ADR procedures and proposes that ECR mediation would serve as an ideal forum for the LFA dispute. ECR involvement would help protect both aquatic life and national security by empowering the parties to collaboratively find creative solutions to complex problems and reach closure from the unending cycle of litigation.

Time To Upgrade Drinking Water Protections, Noah M. Sachs

Law Faculty Publications

A year ago, residents of Charleston, W.Va., learned that their entire drinking water supply had become contaminated by MCHM, a toxic chemical used to wash coal. Ten thousand gallons of MCHM had spilled from a corroding storage tank by the Elk River, located a mile upstream of the city’s drinking water intake pipes. As a result of the chemical spill, 300,000 citizens lost their water for more than a week, and hundreds sought emergency care.

That accident alone should have been a wake-up call for Virginians about the need to protect our water supply from chemical spills. But a year …

County Demographic Influence On Toxic Chemical Activities Of Chemical-Related Industry In Michigan, Lisa Helen Perricane

Walden Dissertations and Doctoral Studies

There are a large number of chemical facilities that emit toxic chemicals in Michigan, and there is a concern regarding toxic chemical exposure to the residents of Michigan counties. However, it is uncertain whether chemical companies that emit toxic chemicals in Michigan are influenced by county demographic factors in deciding whether to engage in voluntary pollution prevention (P2) activities and whether this decision influences U.S. Environmental Protection Agency's (U.S. EPA) Risk-Screening Environmental Indicators (RSEI) scores. Using Bullard's theory of environmental justice, the purpose of this quantitative study was to determine if there was a correlation between chemical-related industry's voluntary P2 …

The Sydney Tar Ponds Case: Shutting The Door On Environmental Class Action Suits In Nova Scotia?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The case comment provides an assessment of the recent class action case in Nova Scotia regarding the notorious Sydney Tar Ponds contaminated site. The comment considers the implications for class actions and for environmental tort law.

Calibrating Liquefied Natural Gas Export Life Cycle Assessment: Accounting For Legal Boundaries And Post-Export Markets, James W. Coleman, Adebola Kasumu, Jeanne Liendo, Vivian Li, Sarah Marie Jordaan

Faculty Journal Articles and Book Chapters

The climate impact of liquefied natural gas (LNG) export from North America is one of the most pressing questions for Canadian and world energy policy today. This paper performs the first life cycle assessment (LCA) of the greenhouse gas emissions from LNG exports from Canada, assuming that importing countries use the natural gas for electricity generation. It shows that the climate impact of LNG depends on where it is sent. If LNG from Canada displaces electricity in coal-dependent countries, it will likely lower global greenhouse gas emissions. If it displaces electricity from countries that rely on low carbon sources such …

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(1)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. Determination of the appropriate cause of action has consequences for the standard of liability, the statute of limitations, and the protection afforded parties who settle with the government.

The relationship among these causes of action has been the source …

Biosimilar Naming: A Call For Uniformity In A Complex Field, Jacqueline Genovese

Brooklyn Journal of International Law

Recombinant technology has opened a pathway for a means of producing a variety of therapeutic proteins and generating the growth of the biopharmaceutical industry. Further, due the patent expirations of a number of biologics in the coming years, there has been an increased interest in the development of generic biologics, also known as biosimilars, and a widespread push for biosimilar FDA approval in the United States. While the pressure for the expansion of biosimilar approval is warranted, the FDA must be cautious when implementing regulatory guidelines. Since biologics differ greatly from small-molecule drugs, biologics have a distinct approval process. The …

Beyond Gridlock, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock. Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response. Yet Microsoft, Google and many other companies have committed to become carbon neutral. Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and …

The Role Of Hybridization And The United States Fish And Wildlife Service Biologists’ Discretion In The Implementation Of The Endangered Species Act, Jennifer F. Lind-Riehl

Dissertations, Master's Theses and Master's Reports - Open

The Endangered Species Act (ESA) requires that the “best available scientific and commercial data” be used to enable the protection of critically imperiled species from extinction and preserve biodiversity. However, the ESA does not provide specific guidance on how to apply this mandate. In addition, the interpretation of scientific data can be uncertain and controversial, particularly regarding species delineation and hybridization issues. US Fish and Wildlife Service (FWS) field biologists must decide what the best science is and how to interpret and apply it in their recommendations. As a result, FWS field biologists often have considerable discretion when it comes …

Reducing Releases Of Pahs: A Comparative Case Study Of Coal Tar Sealant Bans In The United States, Margaret Morrison

Dissertations, Master's Theses and Master's Reports - Open

Coal tar based sealants are applied to parking lots, driveways, and playgrounds in order to prevent pavements from deteriorating and cracking. Approximately 85 million gallons of coal tar based sealants are applied annually in the United States. In the mid-2000s scientists discovered that these type of sealants release polycyclic aromatic hydrocarbons (PAHs), which can be harmful to human and ecosystem health. After this discovery, dozens of city, county, and state wide bans of the product were put in place. However, some attempts at statewide bans have failed, while others have succeeded. This research examines the factors explaining the difference. These …

The European Union’S Potential Contribution To Protect Marine Biodiversity In The Changing Arctic: A Roadmap, Nengye Liu, Elizabeth Kirk

Research Collection Yong Pung How School Of Law

This article provides a roadmap for possible European Union (eu) action in the protection of marine biodiversity in the changing Arctic. First the eu’s competence in the Arctic is briefly introduced. Then the discussion turns to the eu’s potential external and internal actions in shipping, fisheries and offshore oil and gas operations that could possibly enhance the international legal regime for the protection of marine biodiversity in the Arctic. The eu’s role vis-à-vis the global biodiversity regime and cross-cutting measures under the United Nations Convention on the Law of the Sea are discussed together in the final part.

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

Distributed, Nega-, And Reclaimed: Setting Expectations In The "New" Resource Base, Michael Pappas

Publications

No abstract provided.

Defining Power Property Expectations, Michael Pappas

Publications

No abstract provided.

Environmental Justice, Human Rights, And The Global South, Carmen Gonzalez

Faculty Articles

From the Ogoni people devastated by oil drilling in Nigeria to the Inuit and other indigenous populations threatened by climate change, communities disparately burdened by environmental degradation are increasingly framing their demands for environmental justice in the language of environmental human rights. Domestic and international tribunals have concluded that failure to protect the environment violates a variety of human rights (including the rights to life, health, food, water, property, and privacy; the collective rights of indigenous peoples to their ancestral lands and resources; and the right to a healthy environment). Some scholars have questioned the utility of the human rights …

Bridging The North-South Divide: International Environmental Law In The Anthropocene, Carmen Gonzalez

Faculty Articles

This article calls for a fundamental reorientation of international environmental law to bridge the North-South divide and respond to the ecological crises of the Anthropocene. Such a reconceptualization of international environmental law must be normatively grounded in respect for nature and in the quest for environmental justice within, as well as between, countries. International environmental law must directly challenge the relentless drive toward economic expansion and unbridled exploitation of people and nature rather than merely attempt to mitigate its excesses. An essential step toward such a reconceptualization is to examine the ways in which international law has historically engaged with …