Environmental Law Commons^™

Remade In China: What Does Recycling Tell Us About The Chinese Patent System?, 82 Umkc L. Rev. 887 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

What can we expect of China's patent law during the tenure of President Xi Jinping? This article proffers a partial answer to this broad question through the close reading of patent allegations against Chinese refurbishers and recyclers. Although the doctrinal issues presented are specific, these disputes occupy a policy space where competing goals of development tear a slit in the glossy exterior of the “Chinese Dream” meme that comes to represent Xi's administration, a slit through which we may gain some insight into the direction of IP development in China.

In the process of domesticating a legal regime originated from …

Flag State Regulation Of Greenhouse Gas Emissions: Regulatory Authority Of Flags Of Convenience And Franchised Registries, Alyssa Kutner, Meredith Wilensky

Sabin Center for Climate Change Law

International shipping accounts for approximately 2-3% percent of global anthropogenic greenhouse gas emissions (GHG). Under business as usual conditions, emissions from the sector are expected to double by 2050. The quantity of GHG emissions from shipping combined with the potential for reductions using existing technologies make the sector a strategic target for mitigation measures.

In February of 2014, the Sabin Center for Climate Change Law published a white paper that concluded that sovereign states have broad authority under international law to regulate GHG emissions from vessels within their registry. However, many registries are structured such that the flag state has …

Reverse Environmental Assessment Analysis For The Adaptation Of Projects, Plans, And Programs To The Effects Of Climate Change In The Eu Evaluation Of The Proposal For An Eia Directive, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

It is clear that mitigation measures are not enough to tackle climate change effects and, therefore, some adaptation measures will be needed to improve resiliency. The new Reverse Environmental Impact Assessment (REIA) analysis, so named by Professor Michael B. Gerrard1, evaluates the impacts that the “transformed environment” – a result of the adverse effects of climate change – may cause to a project, plan, or program, in order to allow those undertaking these activities to act proactively.

There are many countries that have taken action accordingly. The EU has elaborated “Guidances” on integrating climate and biodiversity into either the Environmental …

Moving At A Glacial Pace: What Can State Attorneys General Do About Sec Inattention To Nondisclosure Of Financially Material Risks Arising From Climate Change?, Nina Hart

Sabin Center for Climate Change Law

In recent years, two certainties have created a mass of uncertainty for public companies. First, companies must disclose material financial information in their annual statements, known as 10-Ks, to the SEC. Second, climate change poses financial risks to the way businesses operate. Together, these principles have generated significant uncertainty within the regulatory and law enforcement arenas. Specifically, companies and law enforcement officials are uncertain about what risks stemming from climate change must be disclosed in 10-Ks, and how that information should be presented.

The actor primarily responsible for clarifying disclosure requirements is the Securities & Exchange Commission (SEC). This Note …

Pleading Patterns And The Role Of Litigation As A Driver Of Federal Climate Change Legislation, Juscelino F. Colares, Kosta Ristovski

Faculty Publications

Based on a variant of the Elliott-Ackerman-Millian theory that variable, potentially inconsistent and costly litigation outcomes induce industry to seek federal preemptive legislation to reign in such costs, we collect data on climate change-related litigation to determine whether litigation might motivate major greenhouse gas emitters to accept a preemptive, though possibly carbon-restricting, legislative compromise. We conduct a spectral cluster analysis on 178 initial federal and state judicial filings to reveal the most relevant groupings among climate change-related suits and their underlying pleading patterns. Besides exposing the general content and structure of climate change-related filings, this study identifies major specific pleading …

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald

Faculty Articles and Papers

No abstract provided.

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

Mitigating The Impacts Of The Renewable Energy Gold Rush, Amy Wilson Morris, Jessica Owley

Articles

No abstract provided.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Articles

No abstract provided.

The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold

Indiana Journal of Global Legal Studies

This paper explores representative environmental action in international, European Union, and German environmental law as an example of '7egal translation." The Aarhus Convention, dating from 1998, requests signatory parties to provide environmental NGOs with wide access to justice so that the protection of the environment can be controlled by the judiciary. Both the European Union and Germany have implemented the provisions of the Aarhus Convention into their respective legal orders. This process of implementation can be considered as "legal translations." The argument of this paper is that a perspective of '7egal translation" provides new vistas on the various intertwined layers …

Weathering Nepa Review: Superstorms And Super Slow Urban Recovery, John Travis Marshall

Faculty Publications By Year

Delays in implementing long-term neighborhood housing recovery measures following urban disasters profoundly disrupt a city's revitalization and resurgence. Following recent large-scale urban disasters, some blame the National Environmental Policy Act environmental and historical review requirement for greatly slowing the long-term recovery process. They claim that the National Environmental Policy Act review is ill suited for the exigencies of disasters. Finding effective ways to advance urban disaster recovery as quickly as possible, while not compromising key environmental quality objectives, is a central challenge to implementing effective post-disaster recovery plans. This Article addresses how best to balance necessary regulation with critical disaster …

Presidential Power To Address Climate Change In An Era Of Legislative Gridlock, Robert V. Percival

Faculty Scholarship

No abstract provided.

Recovery Planning For Pacific Marine Species At Risk In The Wake Of Climate Change And Ocean Acidification: Canadian Practice, Future Courses, Wesley Hartmann, David Vanderzwaag, Katja Fennel

Articles, Book Chapters, & Popular Press

This article evaluates how Canadian recovery planning for Pacific marine species at risk incorporates two pressing 21st century concerns: global climate change and ocean acidification (OA). While many recovery strategies for Pacific species at risk show some understanding of climate change or OA, they generally fail to incorporate key climate and OA information or to consider how these two issues will actually affect the species in question. Two strategies for progress are suggested. First is an administrative strategy that includes the development of a national climate change adaptation strategy, which clarifies how projected climate and ocean acidification impacts should be …

An Analysis Of The Substantive Effectiveness Of The National Environmental Policy Act: Lessons From Ivanpah, Stephanie C. Oehler

CMC Senior Theses

Nearly 45 years ago, the National Environmental Policy Act (NEPA) was signed into law to become the first national policy for the environment of the United States. As it has evolved over time through implementation and litigation, numerous countries and states around the world have emulated NEPA with similar environmental impact assessment requirements. Many scholars have evaluated the success of the legislation in accomplishing its lofty goals. Most commonly, however, these studies address the procedural performance of agencies through the creation of environmental impact statements. This thesis examines the effectiveness of NEPA in accomplishing its substantive, rather than procedural, goals …

The Environmental, Social, And Economic Impacts Of Hydraulic Fracturing, Horizontal Drilling, And Acidization In California, Christina Whalen

CMC Senior Theses

The oil extraction mechanisms of hydraulic fracturing, horizontal drilling, and acidization have recently spread throughout the state of California. This thesis explores and assesses whether federal and state legislation should approve of fracking operations in California after studying its effects on human health, the environment, and the economy. This thesis assesses the impacts of fracking; analyzes the role of current legislation and regulation; compares California fracking to fracking in other states and countries; and provides recommendations for future action.

Arctic Climate Governance: Can The Canary In The Coal Mine Lift Canada’S Head Out Of The Sand(S)?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper considers Canada’s climate policy at the federal and territorial levels of government in light of the accelerated impacts and vulnerability of Canada’s Arctic region. The paper considers the level of awareness of current and expected future climate impacts in the Arctic, and the effect of this awareness on climate policy. Climate policy is considered in three broad areas, climate adaptation, climate mitigation and the effect on each jurisdiction’s development path. The paper concludes that there is good awareness of the current and predicted future impacts of climate change in all jurisdictions studied. For reasons explored in the paper, …

Opt-Out Process For Developing Countries, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The Carbon Majors Funding Loss and Damage report by the Heinrich Böll Foundation and Climate Justice Programme proposes an international funding mechanism for loss and damage that would be funded by private and state actors that contribute significantly to GHG emissions. This paper explores special rules for state owned companies from developing countries that would be required to contribute to the proposed funding mechanism.

The Birth Of The Warsaw Loss & Damage Mechanism: Planting A Seed To Grow Ambition?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This article starts with an update on the UN climate negotiations with respect to loss & damage. It then explores two approaches to loss & damage that are substantially different form the current path of the negotiations. Both approaches seek to utilize the concern over loss & damage to improve motivation for an adequate and fair global effort to mitigation and adapt to climate change. The approaches differ mainly in the extent they can be integrated into the current UN climate regime. The first approach would create a loss & damage liability fund that seeks to ensure adequate resources to …

The Role Of The Unfccc Regime In Ensuring Effective Adaptation In Developing Countries: Lessons From Bangladesh, Meinhard Doelle, Steven Evans, Tony George Puthucherril

Articles, Book Chapters, & Popular Press

This paper provides a general overview of the UNFCCCs approach to adaptation, and then conducts a case study of adaptation efforts in Bangladesh. Based on the results of the case study and drawing on existing literature, the paper considers to what extent the current approach under the UNFCCC is likely to be effective, and how UNFCCC adaptation efforts might be strengthened.

Illusion Of School Choice Leaves Chicago Pupils With No Choice, Elise Robie

Public Interest Law Reporter

School choice ostensibly empowers parents and students to have control over their education. However, despite the facade of school choice in Illinois, in reality parents and students effectively have little to no school choice, especially in the City of Chicago. The presence of charter schools overpowers traditional public schools, and without a solid voucher system parents do not have valid control over their children's education. Parental involvement in a child's education plays a crucial role in a child's success, and lack of genuine school choice stymies parental involvement and control.

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Faculty Articles

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

Health Law As Social Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and …

The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman

Faculty Scholarship

A major shift is transforming the trade and environment field, triggered by governments’ rising use of industrial policies to spark nascent renewable energy industries and to restrict exports of certain minerals in the face of political economy constraints. While economically distorting, these policies do produce significant economic and environmental benefits. At the same time, they often violate World Trade Organization (WTO) rules, leading to increasingly harsh conflicts between trading partners.

This Article presents a comprehensive analysis of these emerging conflicts, arguing that they represent a sharp break from past trade and environment disputes. It examines the causes of the shift …

Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair

Faculty Scholarship

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Holistic Climate Change Governance: Towards Mitigation And Adaptation Synthesis, Katherine Trisolini

University of Colorado Law Review

Climate change already has begun destabilizing natural systems, prompting unprecedented heat waves, droughts, floods, and severe storms. While scientists admonish us that greenhouse gases must be cut deeply and quickly to avoid the worst impacts, past emissions have committed the planet to some further warming. Resulting physical changes will require a legal system that functions amidst extreme weather, rising seas, and scientific uncertainty about the stability of natural systems upon which we relied in designing institutions and infrastructure. An effective response requires both substantial reductions in greenhouse gas emissions to limit the harm ("mitigation') and significant adaptation. Scholars and policymakers …

Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown

University of Colorado Law Review

This Article proposes a novel approach to addressing global climate change's impacts on agricultural production and food security. The climate change crisis is the most significant environmental issue facing our planet. The changes predicted to occur as the earth's climate warms include significant impacts to agriculture. At the same time that the planet is undergoing dramatic climatic changes, the global population is increasing, and economic development in many parts of the world is exerting increased demand for a greater and more diverse supply of food. The relationship between climate change and agriculture is a close and complex one, as the …