Environmental Law Commons^™

Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, Alex Ritchie

Faculty Scholarship

Scholars periodically note the impending upsurge in local oil and gas regulation, offering various reasons for increased local action. Papers written only a few years ago attribute greater local action in the West to population growth, increased urbanization, and increased demand for energy. Consider, however, more recent phenomena. First, population migration from more liberal states to more traditionally conservative producing states likely plays a role, as new residents [11-4] bring perspectives opposing drilling activity. Second, while the suburbs continue to expand into the oil patch, the oil patch has expanded into the suburbs and urban areas as well. Hydraulic fracturing …

Energy Versus Property, Michael Pappas

Publications

This Article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing ("fracking'), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The Article then applies this insight to current disputes pitting aggressive renewable energy policies-such as nuisance immunity or mandatory installations on private property-- against fundamental property expectations: the right to exclude and the right to use …

Anti-Waste, Michael Pappas

Publications

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does "waste" even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, this Article finds that the law selects from a catalog of five specific, and sometimes competing, societal values to define waste. These values include: (1) economic efficiency; (2) human flourishing: (3) concern for future generations: (4) stability and consistency; and, (5) ecology. The law recognizes waste in terms of one of or …

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.

Nepa And Indirect Effects Of Foreign Activity: Limiting Principles From The Presumption Against Extraterritoriality And Transnational Lawmaking, David Heywood

BYU Law Review

No abstract provided.

Grazing In Wilderness Areas, Mark Squillace

Publications

Domestic livestock grazing is naturally in tension with wilderness. Wilderness areas are not truly "untrammeled by man" when they host managed livestock grazing. Yet the compromise that allowed livestock grazing in wilderness areas was surely one of the greatest in the history of the conservation movement. Without it, Congress might never have passed a wilderness bill or designated countless wilderness areas throughout the country. The grazing exception--and the Congressional Grazing Guidelines that afford specific protections for grazers--made it possible to secure bipartisan support for wilderness bills in even the most conservative western states.

Notwithstanding this success, the ecology of some …

Strengthening The Vpa General Permit: Managing Animal Feeding Operations In Virginia To Meet State Law And The Bay Tmdl, Rachel Cannon, Jason Kane

Virginia Coastal Policy Center

No abstract provided.

Room For A (Sacred) View? American Indian Tribes Confront Visual Desecration Caused By Wind Energy Projects, Allison M. Dussias

American Indian Law Review

No abstract provided.

Federal V. State Effectiveness: An Analysis Of The Endangered Species Act And Current Potential Attempts At Reform, Nicholas Primo

Pepperdine Policy Review

In November 2013, several Congressional leaders drafted a new bill to reform the Endangered Species Act of 1973 (ESA). While the Endangered Species Management Self-Determination Act (ESMSDA) was the first major attempt at updating the crucial U.S. environmental policy in decades, it also inflamed environmentalist defenders of the original bill. More importantly, it raised several questions as to whether state or federal-oriented approaches to endangered species protection and environmental policy more broadly is ultimately more effective. This article analyzes the original 1973 ESA, followed by an analysis of the ESMSDA currently being considered. It will discuss the various strengths and …

The Precautionary Principle And Its Application In The Intellectual Property Context: Towards A Public Domain Impact Assessment, Graham Reynolds

All Faculty Publications

This chapter considers whether the precautionary principle - a central element of contemporary environmental law and policy - can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied …

Broken At Both Ends: The Need To Reconnect Energy And Environment, Steven Ferrey

Suffolk University Law School Faculty Works

In the post-industrial economy, key national environmental laws and energy regulations can impose contradictory demands, pursuant to which it is impossible to comply with both. Do regulated companies follow orders to generate essential energy supply or adhere to environmental emissions limits or orders not to generate? The United States Congress and federal agencies have each ignored creating a critical joinder of national policy, and there is no judicial precedent to resolve this conflict. The conflict between energy and environmental regulation creates a new constitutional challenge of essential first impression.

The Rocky Mountain Arsenal National Wildlife Refuge: On A Rocky Road To Creating A Community Asset, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

No abstract provided.

Deep In The Heart Of Texas: How Carbon Sequestration Will Affect Valuation Of The Subsurface., Sarah Anne Lishman

St. Mary's Law Journal

Abstract Forthcoming.

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

The Long-Term Tort: In Search Of A New Causation Framework For Natural Resources Damages, Sanne H. Knudsen

Articles

Recent scientific evidence is proving that toxic releases have long-term, unintended, and harmful consequences for the marine environment. Though a new paradigm is emerging in the scientific literature--one demonstrating that long-term impacts from oil spills are more significant than previously thought--legal scholars, regulators, and courts have yet to consider the law's ability to remedy long-term ecological harms.

While scholars have exhaustively debated causation questions related to latent injuries for toxic torts, they have overlooked the equally important and conceptually similar causation problems of long-term damages in the natural resource context. Likewise, only a few courts have considered the standards of …

The Day After Tomorrow: A Survey Of How Gulf Coast State Utility Commissions And Utilities Are Preparing For Future Storms, Katherine Carey

Sabin Center for Climate Change Law

With widespread outages caused by devastating natural disasters such as Superstorm Sandy and Hurricane Ike in the nation’s recent memory, the public wants to know that the electric utility industry is prepared to withstand and respond to the storms of the future. But is the industry prepared? The government’s role in regulating the electric utility industry makes it impossible to properly analyze why industry players are prepared or unprepared without looking at the actions and decisions of the state regulatory officials. The industry’s actions are inherently tied to the regulations it is required to follow and the costs it is …

New York State Leading On Utility Climate Change Adaptation, Ethan Strell, Christine Fazio

Sabin Center for Climate Change Law

In a precedent-setting decision, the New York State Public Service Commission unanimously approved a settlement on Feb. 20, 2014, requiring Con Edison to implement state-of-the-art measures to plan for and protect its electric, gas, and steam systems from the effects of climate change. Although issued in the context of Con Edison’s rate case, the commission’s order issued on Feb. 21, 2014, explicitly broadened the sweep of its order to address resiliency measures for all utilities in New York State.

An Environmental Conversation, William Murray Tabb

Faculty Articles

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit …

Climate Change Triage, Noah M. Sachs

Law Faculty Publications

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.

This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet it has been overlooked by …

Subsidiarity In Principle:Decentralization Of Water Resources Management, Ryan B. Stoa

Faculty Publications

No abstract provided.

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

San Diego Journal of Climate & Energy Law

The potential for shuffling in wholesale power markets thwarts California’s ability to meet its AB 32 GHG emission reduction goals, and may even lead to emissions increases. Yet, as California’s efforts illustrate, resource shuffling is extremely difficult to regulate at the state level. Short of California aggressively reducing its emissions limits to reflect the leakage problem of shuffling, the state is incapable of solving the problem on its own.
As states follow California’s lead in crafting their own approaches to regulating GHG emissions, national solutions will be necessary to address the problem of resource shuffling, given interstate markets in wholesale …

She Sells Seawalls Down By The Seashore, Tricia Lee

San Diego Journal of Climate & Energy Law

This Comment argues that a bill similar to Assembly Bill 2943 should be proposed today because there has been a drastic shift towards a general acceptance of global warming since 2002. In addition, new environmental studies support the idea of curbing seawall construction along the California coast.

Section I will provide data regarding rising sea levels and the current state of seawall construction along the California coast. It will then explain why seawall construction is not a viable adaptation strategy and delve into its negative social, environmental, and economic impacts.

Section II will examine California’s current policies for protecting coastal …

The Lacey Act Amendments Of 2008: The World's First Ban On Illegal Logging Combats Deforestation But Gets Stumped By Foreign Laws, Yijin J. Lee

San Diego Journal of Climate & Energy Law

By exploring the history of the United States’ legislative efforts in dealing with the problems deforestation has caused and the origins of the Lacey Act, it is possible to understand the inspiration behind the 2008 amendments to the act. Further, exploring the minute details of the Lacey Act amendments and understanding how the amendments have changed the power and meaning behind the original Lacey Act highlights the amendments’ strengths and weaknesses. Also, in understanding how the new amendments are being implemented and enforced, it is possible to see which federal agencies are putting force behind the words of the Lacey …

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

Scholarly Works

Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

Scholarly Works

Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn

Scholarly Works

The National Environmental Policy Act (“NEPA”) requires federal officials to draft an environmental impact statement (“EIS”) describing the environmental impact of proposed federal actions that significantly affect the environment, as well as analyze the environmental impacts of alternatives to the proposed action. Almost two dozen states have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments.

This article focuses on one of the strictest little NEPA statutes: New York's State Environmental Quality Review Act (“SEQRA”). While most little NEPA statutes cover only government projects,SEQRA also covers private sector projects requiring municipal permits. Furthermore, SEQRA requires the government …

The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey

All Faculty Publications

Environmental organizations have experienced a string of recent courtroom successes enforcing the federal Species At Risk Act. This case comment examines one of these cases, Minister of Fisheries and Oceans v. David Suzuki Foundation (“Killer Whales”), to expose the rule-of-law underpinnings of the Federal Court of Appeal’s decision. It argues that, while the decision is on its face an ostensible victory for endangered species protection, the conception of the rule of law on which the court relies is incapable of providing meaningful legal constraints for much environmental decision-making.

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 1 Of 2), Sarah J. Adams-Schoen

Scholarly Works

New York City is a city on the waterfront. With 520 miles of coastline, New York City’s coastline is longer than the coastlines of Miami, Boston, Los Angeles and San Francisco combined. Nearly nine million New Yorkers live in areas vulnerable to flooding, storm surges and other natural disaster-related risks that are increasing as a result of climate change.

New York City didn’t wait for a devastating storm to begin comprehensively addressing the effects of climate change. The City’s extensive climate change mitigation and resiliency efforts and communications strategy have put the City in a league of its own. But, …

Land Use Law Update: New York's New Climate Change Resiliency Law, Sarah Adams-Schoen

Scholarly Works

New York State’s lawmakers passed 2,603 bills over the course of the 2013-14 session, 658 of which passed both houses. Although counties and local governments are likely focusing their attention on budget-related items such as the property tax freeze/rebate program, local governments — and zoning and planning officials and practitioners in particular — should also take note of the newly enacted Community Risk and Resiliency Act (CRRA).

Solving The Cso Conundrum: Green Infrastructure And The Unfulfilled Promise Of Federal-Municipal Cooperation, Casswell F. Holloway, Carter H. Strickland Jr., Michael B. Gerrard, Daniel M. Firger

Faculty Scholarship

Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative "green infrastructure" mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional "grey infrastructure" features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial …