Environmental Law Commons^™

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

South Africa's Electricity Crisis: The Need To Reconcile Environmental Policy Decisions With International Treaties, Brittany D. Botterill

San Diego Journal of Climate & Energy Law

This Comment examines whether South Africa’s treaty obligations conflict with the requirement of the country’s government to provide electricity to a burgeoning home-owning population. Section II introduces Eskom, South Africa’s largest utility company, which produces most of the electricity used in South Africa and surrounding countries. Section III discusses South Africa’s role in the Southern Africa Power Pool and the additional obligations this membership places on the country. Section IV then examines the controversial loan that South Africa received from the World Bank to assist in building the Medupi coal-fired power plant. Section V illustrates South Africa’s climate change obligations …

Plans Are Not Enough, Michael Lewyn

Scholarly Works

Some commentators see comprehensive municipal plans as a remedy for suburban sprawl. But in fact, a plan can be used to promote sprawl as well as to prevent sprawl.

Harmonizing Distributed Energy And The Endangered Species Act, J. B. Ruhl

San Diego Journal of Climate & Energy Law

This Article explores ways of harmonizing distributed energy and the ESA, a goal consistent with the national policy for renewable energy conservation. Several legal practitioners and scholars have identified the ESA as a potentially significant constraint on the siting and operation of wind power facilities. The ESA has also been identified as a potential barrier to renewable energy in general, as solar power, biomass, and ocean tide and wave facilities could have their own sets of impacts triggering ESA regulation. But most of this attention has been devoted to utility-scale renewable energy, with distributed energy largely ignored or perhaps assumed …

Expedited Approval Of Energy Projects: Toward Assessing The Forms Of Procedural Relief, Michael B. Gerrard

San Diego Journal of Climate & Energy Law

This research is heading toward two further sets of questions, which may or may not be reached in the current phase of the work.

First, if certain permits or reviews can be dispensed with for certain projects, and there are few negative collateral consequences, do we need these permits and reviews at all? Every proposed project is important to someone, and arguments can almost always be mounted that a given kind of project warrants special treatment. The present inquiry may help identify some requirements that are obsolete and should not apply to anyone, and it may also help identify others …

Legal, Technical, And Economic Challenges In Integrating Renewable Power Generation Into The Electricity Grid, Timothy P. Duane, Kiran H. Griffith

San Diego Journal of Climate & Energy Law

This Article addresses the legal, technical, and economic challenges of integrating high levels of renewable power generation into electrical grid system operation. Part II shows that the primary integration challenge is reducing the total costs of integration and allocating the costs of integration in a hybrid regulatory structure, which presents different institutional impediments than traditional cost-of-service ratemaking or rate-of-return regulation. We demonstrate that the primary impediment to improved integration is a failure to make the critical policy choice about how such costs will be allocated. Part III describes and analyzes the BPA-wind dispute in order to evaluate the adequacy of …

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Collaborating To Nowhere: The Imperative Of Government Accountability For Restoring The Chesapeake Bay, Rena I. Steinzor, Shana Jones

Faculty Scholarship

This Article opens with an analysis of why the Chesapeake Bay Program will repeat its past failures unless a reliable mechanism for ensuring accountability is created. It then explains how the independent evaluator should be constructed to make possible the overall success of Bay restoration. Finally, it closes with a rebuttal of the arguments in favor of self--auditing and against independent review.

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Faculty Scholarship

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …

Criminal Liability For Vessel-Source Pollution In China: Law And Practice, Nengye Liu

Research Collection Yong Pung How School Of Law

This article addresses criminal liability for vessel-source pollution in China. It describes relevant Chinese legislation regarding criminal liability for vessel-source pollution, analyses why a criminal case pertaining to vessel-source pollution has yet to be brought in Chinese courts and presents suggestions on how to improve the current regime.

Prevention Of Vessel-Source Pollution In The South China Sea: What Role Can China Play, Nengye Liu

Research Collection Yong Pung How School Of Law

This article examines China's role in the prevention of vessel-source pollution in the South China Sea. The article argues that, although the South China Sea is a disputed sea area, China has the potential to play a leading role to improve the prevention of vessel-source pollution in this area. By playing a key role in addressing the issue of vessel-source pollution China also has the opportunity to demonstrate its willingness to co-operate to protect the marine environment of the South China Sea without inflaming the thorny sovereignty disputes in the area. First, the sovereignty disputes in the South China Sea …

Equity And The Global Policy On Climate Change: A Law And Economic Perspective, Andri G. Wibisana

Indonesia Law Review

The opponents of the global commitment to reduce greenhouse gases (GHGs) emissions seem to have shifted their arguments from the one emphasing on the issue of uncertainty to the one focusing on the economic burdens disproportionately placed on the current generation in general, and some developed countries in particular. Inevitably, the issue of equity becomes of highly importance in the recent climate policy debates. This paper attempts to analyze the implementation of equity principles, i.e. intergenerational and intragenerational equity, in the global climate policy. In doing so, it will first briefly outline some prominent economic appraisals on the impacts of …

Selected Bibliography On Adjudications And New Mexico Water Management, Carol Romero-Wirth, Susan Kelly, Ernesto Longa

Publications

No abstract provided.

Agenda: The Future Of Natural Resources Policy, University Of Colorado Boulder. Natural Resources Law Center

The Future of Natural Resources Policy (December 6)

This forum will provide a post-election perspective on some of the challenges and opportunities that natural resources, public lands, and energy policymakers in Washington are likely to face in the next four years. An expert panel will discuss the dynamics in the Department of the Interior, the Department of Agriculture, and Congress, and how their evolving policies are likely to affect Colorado in the coming years.

Moderator: Dean Phil Weiser, University of Colorado Law School

Panelists:

Jay Jensen, Associate Director for Land & Water Ecosystems, White House Council on Environmental Quality

Scott Miller, Visiting Assistant Professor, University of Colorado Law …

Background Reading: Department Of The Interior, 2013 Departmental Overview, United States. Department Of The Interior, Ken Salazar

The Future of Natural Resources Policy (December 6)

18 pages (DO-5 through DO-22).

"Background Reading"

The Future of Natural Resources Policy: This forum will provide a post-election perspective on some of the challenges and opportunities that natural resources, public lands, and energy policymakers in Washington are likely to face in the next four years. An expert panel will discuss the dynamics in the Department of the Interior, the Department of Agriculture, and Congress, and how their evolving policies are likely to affect Colorado in the coming years.

Background Reading: Department Of Agriculture, 2013 Budget Overview, United States. Forest Service, United States. Department Of Agriculture

The Future of Natural Resources Policy (December 6)

57 pages.

"Fiscal Year 2013 Budget Overview"

"February 2012"

"Background Reading"

The Future of Natural Resources Policy: This forum will provide a post-election perspective on some of the challenges and opportunities that natural resources, public lands, and energy policymakers in Washington are likely to face in the next four years. An expert panel will discuss the dynamics in the Department of the Interior, the Department of Agriculture, and Congress, and how their evolving policies are likely to affect Colorado in the coming years.

Systems Of Carbon Trading, Dr. Bruno Zeller

Touro Law Review

No abstract provided.

The Overlooked Role Of The National Environmental Policy Act In Protecting The Western Environment: Nepa In The Ninth Circuit, Michael C. Blumm, Keith Mosman

Washington Journal of Environmental Law & Policy

Critics widely disparage the National Environmental Policy Act (NEPA) for being a mere “paper tiger” or bureaucratic red-tape. The U.S. Supreme Court has surely encouraged this perception by treating the statute with consistent hostility, reducing it to a requirement only to follow prescribed administrative procedures but not produce any environmental results. But in the Ninth Circuit, NEPA lives a more important life, since that court has not forgotten NEPA’s essential environmental purpose. This article examines four lines of cases in the Ninth Circuit that may show that NEPA’s future might reflect its conservation purpose. These cases 1) deny NEPA plaintiffs …

Leopold's Last Talk, Eric T. Freyfogle

Washington Journal of Environmental Law & Policy

During the last decade of his life, Aldo Leopold (1887–1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism—more clear in these talks than in his lyrical, muted classic, A Sand County Almanac—called into question not just …

Oil Development In Anwr: The Precautionary Principle Is Compatible With The Fish And Wildlife Service's Statutory Mandate, Trisna Tanus

Washington Journal of Environmental Law & Policy

The potential for oil production in the Arctic National Wildlife Refuge (ANWR) coastal plain, otherwise known as the 1002 Area, is significant, with a current value of $770 billion. Yet, there are considerable knowledge gaps and disagreements over the environmental impacts of oil development in ANWR. The Fish and Wildlife Service (FWS) manages ANWR and is tasked with advancing the refuge’s mission of ecological conservation. Before it can approve oil development in ANWR, the FWS is statutorily required to ensure that oil development is compatible with ANWR’s mission. This Comment argues that the precautionary principle is embedded within the laws …

Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel

Chicago-Kent Law Review

The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …

The Illusion Of The Blue Flame: Water Law And Unconventional Gas Drilling In New York, Anne Marie Garti

Elisabeth Haub School of Law Student Publications

This article explores the question of whether natural gas can still be considered a clean fuel by probing the relationship of water law and hydraulic fracturing in New York State. The paper begins by explaining the geology of tight shales, the engineering techniques needed to extract gas from solid rock, and the density and location of drilling that would be allowed under New York State law. Relying on information provided by the New York State Department of Environmental Conservation, scientific studies, and press accounts of the unprecedented citizen advocacy on this matter, it goes on to show the sharp distinction …

Water Bankruptcy, Christine A. Klein

UF Law Faculty Publications

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as …

End Of The Line: Tracking The Commodity Chain Of The Electronic Waste Industry, Jacquelynn A. Doyon

Dissertations

This study examines the transfer of electronic waste (e-waste) from core to peripheral nations, specifically coastal nations in Africa. The theoretical perspective marries green criminology with world systems theory in examining the ways in which marginalized populations bear the burden of hazardous waste disposal across the globe. The study is comparative, looking at legislation in the United States as well as international legislation and enforcement, and also employs case study methodology, contrasting e-waste disposal in Nigeria and Ghana. The final intent of this research is to determine whether or not the violation of national and/or international legislation regarding the transfer …

A Palace Full Of Wetlands Enthusiasts, Kim Diana Connolly

Other Scholarship

No abstract provided.

Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles Yablon, Nick Landsman-Roos

Cardozo Law Review

This Article provides the first extended academic consideration of a new practice adopted by an increasing number of courts to resolve e-discovery disputes - the sampling of a small portion of the information sought in backup or other relatively inaccessible files. We provide a comprehensive overview and statistical analysis of contemporary sampling techniques, identifying issues where sampling practice is inconsistent or where additional guidance appears to be required. Our aim is to provide a coherent theoretical approach to the use of sampling, suggesting "best practices" for many unresolved issues, and locating sampling practice within broader contemporary debates about discovery.

Shockwave: Lender Liability Under Cercla After United States V. Fleet Factors Corporation, Nicholas M. Kublicki

Pepperdine Law Review

No abstract provided.

Red, White, And Green: A Federal Sustainability Vision For The National Capital, L. Preston Bryant Jr.

William & Mary Environmental Law and Policy Review

No abstract provided.

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith W. Rizzardi

William & Mary Environmental Law and Policy Review

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

Naturalness And Biodoversity: Why Natural Conditions Should Be Maintained Within Protected Areas, Gordon Steinhoff

William & Mary Environmental Law and Policy Review

No abstract provided.