Environmental Law Commons^™

Closing The Regulatory Gap In Michigan's Public Trust Doctrine: Saving Michigan Millions With Statutory Reform, Kelsey Breck

University of Michigan Journal of Law Reform

The Great Lakes are some of Michigan's most valuable and important environmental resources. The public trust doctrine requires Michigan to protect and preserve the lands along the shores of the Great Lakes for the use of future generations. Unfortunately, the public trust doctrine in Michigan is in disarray and as a result, public and private rights to the lands along the Great Lakes are poorly delineated. This Note presents an economic argument for why the public trust doctrine should be reformed to better define public and private rights to the land along Michigan's Great Lakes. It also suggests a statutory …

Environmental Aesthetics And Free Speech: Toward A Consistent Content Neutrality Standard For Outdoor Sign Regulation , Brian J. Connolly

Michigan Journal of Environmental & Administrative Law

First Amendment challenges by billboard companies and other sign owners to local sign regulations have become a frequent occurrence in the past thirty years. The stakes are high for both commercial sign owners and local governments. Sign control has emerged as an important front in the environmental protection movement, as it focuses on the visual or scenic quality of the environment. Courts have begun to recognize and accept local governments’ interest in controlling the proliferation of signage as part of their efforts to improve environmental quality, but courts have applied First Amendment doctrine in an inconsistent manner. The courts’ inconsistent …

Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton

Michigan Journal of Environmental & Administrative Law

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of …

Leveraging The Mining Industry’S Energy Demand To Improve Host Countries’ Power Infrastructure, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for power infrastructure.

Roles For State Energy Regulators In Climate Change Mitigation , Brandon Hofmeister

Michigan Journal of Environmental & Administrative Law

The construction of new power plants in the United States carries the risk of significantly contributing to global climate change. After concluding that the current federal regulatory response to climate change risks from power plants is inadequate, this Article examines three potential roles for state energy regulators to play as a bridge climate mitigation strategy until a cohesive federal policy is enacted. State energy regulators have received relatively little attention as potential climate change regulators, but they are well positioned to analyze and mitigate climate change risks from new power plants. The Article considers the advantages and drawbacks of state …

The Potential Role Of Carbon Labeling In A Green Economy, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

Over the past several years, labeling schemes that focus on a wide range of environmental and social metrics have proliferated. Although little empirical evidence has been generated yet with respect to carbon footprint labels, much can be learned from our experience with similar product labels. We first review the theory and evidence on the role of product labeling in affecting consumer and firm behavior. Next, we consider the role of governments and nongovernmental organizations, concluding that international, multistakeholder organizations have a critical part to play in setting protocols and standards. We argue that it is important to consider the entire …

Panarchy And The Law, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Panarchy theory focuses on improving theories of change in natural and social systems to improve the design of policy responses. Its central thesis is that successfully working with the dynamic forces of complex adaptive natural and social systems demands an active adaptive management regime that eschews optimization approaches that seek stability. This is a new approach to resources management, and yet no new theory of how to do things in environmental and natural resources management, particularly one challenging entrenched ways of doing things and the interests aligned around them, is likely to gain traction in practice if it cannot gain …

Setting The Bar For "Injury" In Environmental Exposure Cases: How Low Can It Go?, John C. Cruden, Carla Burke, John Guttmann, Robert V. Percival

Faculty Scholarship

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of "injury" in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included …

Agricultural Secrecy: Going Dark Down On The Farm: How Legalized Secrecy Gives Agribusiness A Federally Funded Free Ride, Rena I. Steinzor, Yee Huang

Faculty Scholarship

This briefing paper examines the agricultural secrecy granted by section 1619 of the 2008 Farm Bill, its implications for transparency and oversight, and its impact on other federal agencies such as the U.S. Environmental Protection Agency (EPA). In an era of fiscal responsibility, tight budgets, and increasing pressure on the environment, the public has a right to know whether the U.S. Department of Agriculture (USDA) is making the best decisions about how to allocate public funds.

Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, …

Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann

Faculty Scholarship

This article introduces an investor-oriented framework for the evaluation of renewable energy policy, applies these newly developed criteria to a qualitative comparison of the primary policy instruments, and offers recommendations to enhance the investor appeal of renewable energy in the United States.

The multi-trillion dollar task of scaling renewable energy technologies to mitigate climate change, ensure energy security, and create green jobs is one of the most daunting challenges of the twenty-first century. It is, in fact, too great a challenge for either the public or private sector to shoulder alone. Rather, public policy must catalyze private investment in renewable …

Protecting Our Natural Environment, Denise D. Fort

Faculty Scholarship

We don’t have a framework for protecting the ecological aspects of rivers and streams and that’s what I want to talk about today. We have failed to protect these natural values in our rivers, and my concern as we look toward the future is what sorts of steps Congress should take to stem further damage and to help us restore our rivers and streams.

My first point is that New Mexico should manage water demand rather than investing in large-scale water projects. My second recommendation and that is restoration. Restoration of the state’s rivers is something we had begun to …

Making The Case For Wilderness: The Bureau Of Land Management’S Wild Lands Policy And Its Role In The Storied History Of Wilderness Protection, Maureen O’Dea Brill

Legislation and Policy Brief

On December 23, 2010, the Secretary of the Department of the Interior, Ken Salazar, issued Secretarial Order No. 3310, commonly referred to as the Wild Lands Policy. The Wild Lands Policy established a two-step process through which the Bureau of Land Management (BLM), an agency within the Department of the Interior, was to inventory and to manage its lands with wilderness characteristics (LWCs). The policy continued the requirement that the BLM maintain a current inventory of LWCs and evaluate these LWCs during the previously established land use planning process. The Wild Lands Policy further required that the BLM protect LWCs …

Avoidable “Fraccident”: An Argument Against Strict Liability For Hydraulic Fracturing, Joseph A. Schremmer

Faculty Scholarship

Whether fracking is an abnormally dangerous activity for purposes of strict liability appears to be an issue of first impression. That larger issue primarily turns on a smaller one: whether fracking accidents—or “fraccidents”—are avoidable or unavoidable. To that end, this Comment argues that when practiced with reasonable care and in the vicinity of other petroleum production, fraccidents are avoidable, and thus, fracking is not abnormally dangerous. Instead of strict liability, courts should combine a negligence standard with res ipsa loquitur to determine liability of fracking companies that contaminate water sources. First, this Comment will present background on the process and …

Fairness In The Bay: Environmental Justice And Nutrient Trading, Rena I. Steinzor, Robert R.M. Verchick, Nicholas W. Vidargas, Yee Huang

Faculty Scholarship

Maryland, Virginia, Pennsylvania and other states in the Chesapeake Bay region, with support from the Environmental Protection Agency, are working toward developing water quality trading programs intended to help meet federal pollution limits for the Bay. This white paper from the Center for Progressive Reform warns that even if a trading system succeeds in reducing overall pollution in the Bay, it might still have a dire effect on low-income and minority communities in the Bay region.

If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a …

Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy Ed.

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

24 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado." Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 331 (2013).

Development And Dissemination Of Clean Cookstoves: A Model Law For Developed Countries, Scott Miller

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

21 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 355 (2013).

"Scott Miller ed."

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Sustainable Regional Legal Experiences In Biotechnology In The European Union, Claudia Colmenarez Ortiz

Global Environmental Law at a Crossroads

Genetic modification in plant cells in the early 80´s allowed Biotechnology to introduce characteristics in plants creating stronger crops (compared to the ones created by conventional breeding) to be used in different sectors: Agriculture, Fisheries, Food Production and Industry. A new technology was developed to face the upcoming global challenges: climate change, overpopulation, erosion, and a new socio-economic environment.

This new technology is subject to international regulations to ensure environmental sustainability of crop production on the basis of which genetically modified organisms have to be assessed for safety before being released in to the environment or on the market. Although …

Risk Governance Of Genetically Modified Organisms In Europe And China, Wen Xiang

Global Environmental Law at a Crossroads

Biotechnology may provide a variety of societal benefits but may also threaten established interests and values, and human and environmental well-being. The safety of GM crops and foods is an issue that causes great public concern and stringent regulation in European countries and several developing countries. Risk governance of GMOs is required to facilitate the commercialization of the biotechnology and also to act as a mechanism of controlling potential risk.

It is generally recognized that the governance shall be done on the basis of a risk analysis framework. Risk analysis can be broadly defined as an integrated process consisting of …

The Use Of Delphi For The Listing Of Species And Ecological Communities, Angela Dwyer

Global Environmental Law at a Crossroads

This paper considers the limitations of the current methodologies and the potential for the use of the Delphi method as part of the regulatory response to biodiversity loss through the listing of species and ecological communities.

Decision-making in relation to threatened species and ecological communities, especially when the ubiquitous ‘listing’ may be the required outcome to attract a conservation response, is particularly susceptible to challenges over methodology.

Many decisions are made under circumstances where the available scientific evidence is uncertain, inadequate, or inexact; the decisions are generally science-based and the link between science and policy is clouded; and there is …

Counting Nature And The Nature Of Counting, Natasha Affolder

Global Environmental Law at a Crossroads

Biodiversity protection is becoming increasingly reliant on metrics, lists, and indicators. Check the box approaches to taking biodiversity into account attempt to reduce complex concepts, and contested science, into simple standards, often translated into numerical representation. The acronyms alone associated with such attempts to numerically account for and prioritize nature are mind boggling even for the initiated: are habitats IBAs (Important Bird Areas), IPAs (Indigenous Protected Areas), AZE (Alliance for Zero Extinction) sites, KBAs (Key Biodiversity Areas)? List-based approaches dominate both international treaties (the World Heritage Convention, the Ramsar Convention, CITES) and leading international instruments such as the IUCN Red …

Is The Time Ripe For Binding Norms For Corporate Accountability?, Stephen Stec, Alexios Antypas, Magdalena Pakiewicz

Global Environmental Law at a Crossroads

International voluntary corporate social responsibility initiatives such as international codes of conduct, non-financial reporting standards and governance principles have displayed an exponential growth trend in recent decades, in response to growing recognition of the need for a policy response to the harmful social and environmental effects of globalization. Corporate accountability was a major topic in 2002 at the World Summit on Sustainable Development in Johannesburg, resulting in the strengthening of voluntary frameworks and the launching of several new voluntary initiatives. The expansion of the realm of corporate social responsibility, sustainability reporting and accountability through voluntary means has not, however, blunted …

Building Bridges Across Jurisdictional And Disciplinary Boundries: The Need For New Environmental Law Research Methods, Michelle Lim

Global Environmental Law at a Crossroads

In the past forty years the global population has doubled and global CO2 emissions have increased by 70%. Human induced change to ecosystems is more rapid and extensive than any comparable period in history. Current biodiversity loss exceeds that of the historical past by several orders of magnitude and shows no indication of slowing. Anthropogenic changes to ecosystems have contributed to improvements to human well-being and economic development. This has been achieved at growing costs in the form of the degradation of many ecosystem services. Population growth and economic development have intensified competition over natural resources worldwide.

Rapid increases in …

An Appraisal Of The International Governance Of Transboundary Movements Of Gmo's Twenty Years After Rio, Odile Lim Tung

Global Environmental Law at a Crossroads

Biotechnology or the engineering of the genetic material of species can give way to avenues of possibilities for the benefit of people, fauna and flora but also has the potential of untold and undiscovered threats to humanity and living organisms. One of the first attempts to legislate on international rules on biotechnology can be traced back to Article 19 of the Convention on Biological Diversity (CBD) in 1992. The CBD is indeed the first international legal instrument apart from the then European Community’s relevant directives to suggest that biotechnology is a matter of concern for the international community while providing …

Teaching Comparative Environmental Law From A Global Resources Perspective: Are National Environmental Laws Doing Their Job?, Lin Harmon

Global Environmental Law at a Crossroads

Many environmental law courses provide instruction in national environmental laws and their application. Some environmental law courses compare one system of environmental law with another system to see what each system can learn from the other. Most recently, there has been a move towards a more global approach to comparative environmental law, looking at the global development of legal institutions and procedures in the enforcement of environmental statutes and regulations.

As the world faces increasingly difficult conditions with advancing climate change and ocean acidification, continuing loss of biological diversity, the growth of megacities, massive public health problems from pollution, and …

Critical Analysis Of The Contractual Commitment To Serve The Protection Of Ecological Services: Payments For Environmental Services, Alexandra Langlais

Global Environmental Law at a Crossroads

The contractual commitment is a tool now widely used in the environmental field. As part of payments for environmental services, this contractual obligation, however, raises many questions. These cover not only the legitimacy but also contractors and so intimately linked to the object of the contract, environmental services. Indeed, the provision of environmental services justifies financial rewards in return. Insofar as this concept of environmental services is uncertain because of a missing definition, it coexists with that of ecosystem services, environmental public goods, the subject of the contract and therefore its payment may appear questionable. Including the assumption that this …

Transnational Voluntary Climate Change Initiatives For Local Governments: Key Variables, Drivers, And Likely Effects, Stepan Wood, Kevin Thompson

Global Environmental Law at a Crossroads

Local governments were among the first levels of government to develop and implement policies and measures to combat climate change. They remain in many respects at the forefront of climate policy. Since the early 1990s they have acted collectively to create transnational voluntary climate change initiatives, from the Europe-based Climate Alliance and EU Mayors’ Covenant to the global Cities for Climate Protection campaign and carbonn Cities Climate Registry. After more than two decades of experience with the oldest of these initiatives, it is somewhat surprising that these transnational local government climate initiatives have not received more attention in the scholarly …

Payment For Ecosystem Services In Brazil: Between Efficiency And Equity, Ana Maria Nusdeo, Ana Luiza Campos

Global Environmental Law at a Crossroads

Brazil is characterized by a great richness of its biodiversity, the extension of its continental lands, a variety of economic and cultural condition on its different regions and a sociocultural diversity. All aspects contribute to the complexity of the environmental issue. Although such complexity deserves a special attention, the history of socio-environmental and economic public policies prove that such policies have not always accomplished good results, be it either because models of intense exploitation of natural resources have been adopted, disregarding biodiversity; or due to a poor view of regions as areas either to be occupied or preserved, disregarding its …

The Climate Change Cop 17 Debacle: Is This The Beginning Of The Failure Of International Environmental Diplomacy?, Tumai Murombo

Global Environmental Law at a Crossroads

Increasingly it is becoming apparent that addressing global environmental problems through international diplomacy is not working optimally. Through the lenses of the recent Conference of the Parties to the UN Framework Convention on Climate Change (COPs 15-17) this paper will analyse international environmental diplomacy and assess the extent to which it has been useful in promoting the objectives of sustainable development. In particular it appears that progressively geopolitics is supplanting the underlying aim of international environmental law i.e. to deal with global environmental challenges. I conclude that there is a need for a rethink of how do we address global …