Environmental Law Commons^™

Expanding Regional Renewable Governance, Hannah J. Wiseman

Scholarly Publications

Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a potential site for a utility-scale development is identified, a new piece of property, which I call a “renewable parcel,” is superimposed …

Transnational Business And Environmental Harm: A Twail Analysis Of Home State Obligations, Sara Seck

Articles, Book Chapters, & Popular Press

Transnational corporate conduct that negatively impacts the environmental human rights of local communities is widespread in the operations of extractive sector companies. Yet, under principles of international environmental law, home states of transnational mining companies are neither obligated nor arguably even permitted to regulate and adjudicate environmental problems in host states. Proposals put forward in developed country home states to address these problems are often met with the claim that such regulations would be an imperialistic violation of host state sovereignty, and would create a competitive disadvantage for home state companies. This article will examine this problem by drawing upon …

The Arctic Council At 15 Years: Edging Forward In A Sea Of Governance Challenges, David Vanderzwaag

Articles, Book Chapters, & Popular Press

With the impacts of climate change on the Arctic, including the thinning and decreasing extent of sea ice and projected dramatic increases in access to and development of regional resources, the adequacy of existing governance arrangements for the Arctic is increasingly being questioned. Through a two-part format, this article reviews how the Arctic Council is faring as the key regional governance institution for the Arctic since being established pursuant to a Declaration adopted by the eight Arctic States in September 1996. How the Council has edged forward the regional cooperation agenda through its six working groups and Ministerial meetings is …

The Precautionary Approach And The International Control Of Toxic Chemicals: Beacon Of Hope, Sea Of Confusion And Dilution, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Toxic chemicals in the environment are a continuing concern. Nearly 80,000 chemicals are on the market in the United States; of those, 200 synthetic chemicals are found in measurable quantities in the bodies of Americans. More than 5 billion kilograms of toxic pollutants are released or transferred each year in North America. Even more alarming, basic toxicological information is lacking for most these chemicals.

Long-range transport of persistent organic pollutants (POPs), chemicals that are persistent and bioaccumulate, is a special concern particularly in the Arctic, which acts as a "sink." Examples of POPs include various pesticides, such as DDT, chlordane, …

Canada’S Species At Risk Act And Atlantic Salmon: Cascade Of Promises, Trickles Of Protection, Sea Of Challenges, David Vanderzwaag, Maria Cecilia Engler Palma, Jeffrey Hutchings

Articles, Book Chapters, & Popular Press

This article reviews through a three-part format the role and efficacy of the Species at Risk Act (SARA) in trying to save SARA-listed inner Bay of Fundy (iBoF) Atlantic salmon and other Atlantic salmon populations at risk from the brink of extinction. The cascade of SARA promises is first discussed, including: the independent assessment of the status of the species based on best available scientific information; the protection of listed species, their residences and critical habitat; and the two-stage recovery planning process. The trickles of protection actually delivered by SARA in relation to Atlantic salmon are next described, including the …

Climate Change Litigation After Supreme Court Ruling In American Electric Power V. Connecticut, Mark Fulton, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut. This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases (GHGs) from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions.

Saving Some Green: Free Resources On Environmental Law, Suzanne B. Corriell

Law Faculty Publications

Environmental legal research often requires examining federal, state, and local laws, in addition to understanding science and technology. While there are many print and subscription-based resources available for a fee, websites also can help you navigate the laws and stay current with environmental news, and legal and scientific developments.

United States Of America, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

The prospect of carbon liability in the United States is a relatively recent phenomenon. It is only in the last decade that US environmental lawyers and policy-makers have begun to turn their attention to climate change, as climate-related litigation has surged, government action on several fronts has begun, and climate change has generally been recognised as a factor to consider in decision-making across the economy. This chapter lays out existing options to establish liability for greenhouse gas (‘GHG’) emissions along legislative, regulatory and judicial channels.

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

'American Electric Power’ Leaves Open Many Questions For Climate Litigation, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut, the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open.

2010 Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. That is the lowest number since this column began its annual survey of SEQRA cases in 1990. The second lowest number was 45 in 2009. This trough is most likely caused by the economic recession, as SEQRA activity primarily relates to real estate development.

As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when there was no EIS. Of the 16 cases with an EIS, defendants won 13 (81 percent); …

What’S Ahead For Power Plants And Industry? Using The Clean Air Act To Reduce Greenhouse Gas Emissions, Building On Existing Regional Programs, Franz T. Litz, Nicholas Bianco, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

In the absence of congressional action on climate change, all eyes are on the states and the United States Environmental Protection Agency (EPA) to see how they will regulate greenhouse gas emissions from existing large power plants and industrial facilities. Indeed, power plants and industrial facilities are the sources of half of all U.S. greenhouse gas emissions, making those plants and facilities central to any effort to reduce the country’s total emissions. This working paper explores a promising pathway for the states and EPA to make these reductions using the standards of performance under section 111 of the Clean Air …

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz

Faculty Scholarship

With the permission of MIT Press, this document includes Chapters 11 and 12 from my 2011 book, The End of Energy: The Unmaking of America’s Environment, Security, and Independence. These two chapters discuss some of the history and merits of taxes, subsidies, and regulation (including cap and trade) as mechanisms to implement policies to curb greenhouse gases. In light of the renewed interest in and discussion of command and control regulations and carbon taxes, these chapters may be useful to readers who do not have the book. The bibliographic material relating to these chapters is contained in the book and …

Siting Offshore Hydrokinetic Energy Projects: A Comparative Look At Wave Energy Regulation In The Pacific Northwest, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

No abstract provided.

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

Solar Rights For Texas Property Owners, Sara Bronin

Faculty Articles and Papers

In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, …

Notional Generosity: Explaining Charitable Donors' High Willingness To Part With Conservation Easements, Josh Eagle

Faculty Publications

No abstract provided.

Legal Implications For The U.S. In Transferring Ccs Technology To China, Amy Ward

Sabin Center for Climate Change Law

This paper addresses the legal and related political and economic implications for U.S. public and private sector investors, and U.S. CCS technological proprietors, in participating in CCS demonstration projects in China through the provision of investment and technology transfers.

Climate Change, Forests, And Federalism: Seeing The Treaty For The Trees, Blake Hudson

University of Colorado Law Review

Despite numerous attempts over the past two decadesincluding, most recently, the Copenhagen climate discussions in late 2009-international forest and climate negotiations have failed to produce a legally binding treaty addressing global forest management activities. This failure is due in large part to a lack of U.S. leadership. Though U.S. participation in ongoing forest and climate negotiations is essential, scholars have not fully explored the potential limiting effects of federalism on the United States' treaty power in the area of forest management. Such an exploration is necessary given the debate among constitutional law scholars regarding the scope of the treaty power, …

Urbanization, Water Quality, And The Regulated Landscape, Dave Owen

University of Colorado Law Review

Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This Article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States. These innovations are potentially applicable across the nation. Specifically, the innovations involve using impervious cover total maximum daily loads, residual designation authority, and collective permitting to expand, intensify, and modify regulatory control of urban stormwater. More generally, the innovations involve …

The Problem Of Environmental Monitoring, Eric Biber

University of Colorado Law Review

Environmental law depends on the regular collection of accurate information about the state of the natural environment ("ambient monitoring") in order to assess the effectiveness of current regulatory and management policies and to develop new reforms. Despite the central role that ambient monitoring plays in environmental law and policy, the scholarly literature has almost ignored the question of whether and how effective ambient monitoring will take place-even though there is ample evidence that our current ambient monitoring data have extensive gaps and significant flaws. Moreover, the importance of ambient monitoring will only increase in the future with the shift to …

A Prediction Market For Climate Outcomes, Shi-Ling Hsu

University of Colorado Law Review

This Article proposes a way of introducing some organization and tractability in climate science, generating more widely credible evaluations of climate science, and imposing some discipline on the processing and interpretation of climate information. I propose a two-part policy instrument consisting of (1) a carbon tax that is indexed to a "basket" of climate outcomes, and (2) a cap-andtrade system of emissions permits that can be redeemed in the future in lieu of paying the carbon tax. The amount of the carbon tax in this proposal (per ton of C0 2) would be set each year on the basis of …

Valley Floor, Veery Maxwell

UC Law Environmental Journal

No abstract provided.

A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …

Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones

St. Mary's Law Journal

The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …

Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …

Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors

St. Mary's Law Journal

The reliability of LIDAR (Light Detection and Ranging) is generally questioned for one of two reasons. First, when the speeding charge is of such great importance to the defendant that he must challenge the technology. Second, when the defendant is charged with a different and more serious crime because of the traffic stop. In this instance the reliability of the equipment provides the opportunity to question the stops’ underlying probable cause. Assuming the particular jurisdiction has not settled the issue of reliability of LIDAR evidence, the court must require the prosecutor to present expert testimony to show reliability. In the …