Environmental Law Commons^™

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

Publications

Health, safety, and environmental regulation in the United States are saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a relatively short timeframe; roughly, between the mid-1970s and the early 1980s--a time of hard looks and regulatory reform. Prior to this time, formal conceptions of …

Interstate Competition And The Race To The Top, Jonathan H. Adler

Faculty Publications

Federalism is an essential part of the Constitution’s design. The division of sovereign power between the States and the federal government helps foster interjurisdictional competition, which, in turn, checks government power. Provided a right of exit is maintained, the excessive imposition of economic burdens in one jurisdiction will cause taxpayers and businesses to flee to other jurisdictions. For this reason, federalism often is seen as a friend of the free market.

Provided states cannot externalize the costs of their own policy choices, robust interjurisdictional competition facilitates the enactment of better public policy at the state level. Rather than inducing a …

Saving The Puget Sound Wild Salmon Fishery, George Van Cleve

Faculty Articles

This article focuses on the prevention of future habitat losses. Part I explores flaws in how existing law deals with habitat protection and outlines alternative policies to improve it. Part II charts the decline of the Puget Sound salmon fishery and discusses the scientific support for the conclusion that habitat protection and restoration is a central element in restoring it. Part III considers how effective administrative action and related endangered species litigation are likely to be as means of protecting habitat. Since Native American tribes face very severe harm from the fishery's potential destruction, Part III also explores their distinctive …

Climate Justice, Daniel A. Farber

Michigan Law Review

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

Remedying The Misuse Of Nature, Sanne H. Knudsen

Articles

As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer.

In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private …

The Character Of The Governmental Action, Thomas W. Merrill

Faculty Scholarship

Penn Central Transportation Co. v. New York City holds a secure position in the architecture of the regulatory takings doctrine. That doctrine is at bottom a tool for distinguishing between different governmental powers; in particular, between the power of eminent domain and the police power. Because eminent domain requires that compensation be paid, whereas the police power does not, it is necessary to draw a line between these powers. Conceivably we could simply take the legislature at its word as to which power it is exercising. But at least since Pennsylvania Coal Co. v. Mahon, the Supreme Court has insisted …

Disparities In Park Availability, Features, And Characteristics By Social Determinants Of Health Within A U.S.-Mexico Border Urban Area, Amir Kamel

Open Access Theses & Dissertations

Background: Parks have been shown to be a key feature in the built environment that promote physical activity and positively influence health. However, a number of studies have highlighted that park availability, park features (e.g., park facilities, amenities, and aesthetic features), and park characteristics (e.g., quality/safety concerns of the park and surrounding neighborhood) are not equally distributed across neighborhoods in the U.S, specifically areas of low socioeconomic status and diverse racial/ethnic composition. The overall aim of this study was to examine and describe park availability, park features, and park characteristics, and determine their association with two social determinants of health …

Lacking A Connection To A Community Water System: Water Quality And Human Health Impacts In El Paso Colonias, Yolanda Jane Mcdonald

Open Access Theses & Dissertations

Water-borne disease and its symptoms, such as stomach cramps and diarrhea, are a serious concern in areas that are not connected to a public water system. To investigate the impacts of not being connected to a community water system, I surveyed households in El Paso County colonias that were not connected to a community water system (household n = 75, individual n= 293) and households that were connected to a community water system (household n = 75, individual n= 320). I conducted 150 door-to-door surveys and tested water samples from each household for free residual chlorine level, turbidity level, presence …

A Study Of International Wastewater Challenges And Policy In The Tijuana River Watershed, Gloria Ann Villaverde

Open Access Theses & Dissertations

Since the 1930s, untreated and undertreated sewage from Tijuana, Baja California, México has been released into the Tijuana River Watershed causing contamination of the water supply, crops, the Tijuana Estuary and California beaches. Passage of the North American Free Trade Agreement (NAFTA) has exacerbated the problem by causing population and industrial growth explosions for which there have been insufficient services to meet the needs of the people. The waters of the Tijuana River flow (from México) north over the International Border, into the Tijuana Estuary, discharge out to the Pacific Ocean and often flow north, up the California Coast; therefore, …

Dc Circuit Clears Path For Ghg Rules, But Politics Remain, Michael B. Gerrard

Faculty Scholarship

What may have been the most important environmental decision of 2012 dismissed numerous challenges to the rules issued by the U.S. Environmental Protection Agency (EPA) to control emissions of greenhouse gases (GHGs). While further legal battles are looming, the most serious remaining threats to EPA's program are in the political sphere.

This article describes the ruling in Coalition for Responsible Regulation v. EPA, forecasts EPA's next moves, and describes the battles still ahead for EPA.

Court Ruling Gives Green Light To Epa Ghg Regulations – Positive For Natural Gas, Renewables, And Efficient Vehicles, Mark Fulton, Michael B. Gerrard, Jake Baker, Lucy Cotter

Faculty Scholarship

On June 26, 2012, a panel from the US Court of Appeals for the District of Columbia Circuit Court unanimously upheld the US Environmental Protection Agency’s (EPA) landmark greenhouse gas (GHG) regulations, keeping intact the EPA’s authority to regulate carbon emissions from vehicle tailpipes and stationary sources.

The case is of great importance as it effectively clears the way for the EPA to proceed with its proposed rules to regulate CO₂ emissions from both new power plants and from other new stationary sources, in addition to pressing ahead with new vehicle emission standards.

Mexico's General Climate Change Law, Michael B. Gerrard, Anne Siders

Faculty Scholarship

Mexico’s General Climate Change Law (CCL) creates a coherent and ambitious national framework within which Mexico may fulfill its Copenhagen Pledge and establish itself as an international leader in climate change mitigation, but achieving these ends will require significant and on-going support from the Mexican government.

American Natures: The Shape Of Conflict In Environmental Law, Jedediah S. Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues, including, but running well beyond, climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world …

Science Heads List Of Candidate Debate Queries, Michael B. Gerrard

Faculty Scholarship

Policy on the environment, energy, and natural resources has seldom figured prominently in a presidential election, all the less so as time elapses since the first Earth Day. To judge by the more than twenty debates thus far in the current presidential campaign, it isn’t likely to be on top of the agenda this year. Although regulation itself has been featured in the campaign – recall the criticism of the new lightbulb efficiency standards and of the Solyndra bankruptcy, not to mention rejection of climate change science – broader topics in environmental policy have largely taken a back seat to …

Hurricane Katrina Decision Highlights Liability For Decaying Infrastructure, Michael B. Gerrard

Faculty Scholarship

A March 2, 2012, decision from the U.S. Court of Appeals for the Fifth Circuit, little noticed outside of New Orleans, has broad implications for the liability of federal agencies for injuries caused by the decay or obsolescence of infrastructure due to erosion, sea level rise, and other ongoing conditions, whether of natural or human origin. Less directly, the decision also affects the liability of state and municipal governments, and even private entities in charge of built structures.

This article describes the underlying facts, the decision, and its implications. It also considers how governments and private parties can, to a …

The Implications Of Rolling Easements And Transferred Development Rights In Maine, Connecticut, And Massachusetts, Katie Zilgme

Sea Grant Law Fellow Publications

No abstract provided.

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

Reclaiming Global Environmental Leadership: Why The United States Should Ratify Ten Pending Environmental Treaties, Noah M. Sachs

Law Faculty Publications

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.

In the last two decades, however, U.S. environmental leadership has faltered. The best known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only …

Finality In Brownfields Remediation And Reuse, Joel B. Eisen

Law Faculty Publications

The intersection of brownfields redevelopment and these broader concerns presents a host of issues. Does redevelopment of brownfields connect to a larger vision for the city that links with "smart growth" and climate action goals? Retooling the original developer-centered vision of VCPs to promote broader goals is an ongoing challenge. Has the affected community been involved in planning for brownfields remediation, or has the developer controlled the process? The latter narrows the ability to view the project as part of a community-wide plan, and undermines its legitimacy. Finally, if brownfields redevelopment yields benefits, how can we measure success over the …

Can We Regulate Our Way To Energy Efficiency? Product Standards As Climate Policy, Noah M. Sachs

Law Faculty Publications

In this Article, I demonstrate that the regulatory strategy for energy efficiency is working. Although information disclosure, financial incentives, and other softer alternatives to regulation play a vital role in reducing energy demand, these should be viewed as complements to efficiency regulation, rather than replacements. The regulatory approach has led to substantial cost and energy savings in the past, it has enjoyed bipartisan political support, and it targets products and behaviors that are difficult to address through other policy tools. Given the politics of climate change in the United States, which make federal carbon taxes or a cap-and-trade system infeasible, …

American Legal History Survey: Syllabus, Anders Walker

All Faculty Scholarship

This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

Giving Voice To Rachel Carson: Putting Science Into Environmental Law, William H. Rodgers, Jr.

Articles

Certainly, the most pressing issue of modern times is to develop a body of environmental law (that includes climate change) that is highly responsive to science. Without demeaning the many distinctions between the exercise of science and the practice of law, let me cut to the chase and declare that science is mostly about the “pursuit of truth” and law is mostly about “who wins.” Anybody who doubts this proposition should examine the radical differences between the “Supreme Court of Science” in the United States and the Supreme Court of Law.

The Supreme Court of Science, the National Research Council, …

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

Articles

This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

Transnational Conservation Contracts, Natasha Affolder

All Faculty Publications

Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

Contextualizing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Faculty Scholarship

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the wellstudied agency and trade association examples. The newer regimes mix …

The Basics Of Species At Risk Legislation In Alberta, Shaun Fluker, Jocelyn Stacey

All Faculty Publications

This article examines Alberta's Wildlife Act and the federal Species at Risk Act (SARA) to assess the legal protection of endangered species in Alberta. Most of the discussion related to provisions contained in SARA, as there is comparatively less to discuss under the Wildlife Act. The fact that legal protection for endangered species in Alberta consists primarily of federal statutory rules is unfortunate, as wildlife and its habitat are by and large property of the provincial Crown, and it is a general principle of constitutional law that the federal government cannot in substance legislate over provincial property under the guise …