Environmental Policy Commons^™

Environmental Protection, The Military, And Preserving The Balance: “Why It Matters, In War And Peace”, Kurt Smith

Seattle Journal of Technology, Environmental & Innovation Law

International military operations around the world are major actors on the world stage of global pollution. The United States military remains subject to federal, state, and local environmental laws. However, many exemptions exist to assist the military despite its status as a global polluter. Many environmental policies have incrementally developed over the last one-hundred years largely as a reaction to the most extreme circumstances. Scientific knowledge continues to increase our awareness of the lasting impacts of policy decisions relating to the environment, giving rise to the precautionary principle, that notion that we should do no lasting harm, in our care …

The Clean Air Act: How It Can Be Localized To Promote Both Environmental And Social Justice, Tate Kirk

Seattle Journal of Technology, Environmental & Innovation Law

Legislators attempt to achieve intended goals by enacting laws that provide for regulatory enforcement. However, many times laws are unable to achieve their stated goals and in some ways may create new or exacerbate existing issues. Luckily, upon review, many of these issues can be fixed with quick modifications to either their implementation or enforcement mechanisms. In its current form, the Clean Air Act does not effectively account for differences in regional climate patterns, and, moreover, it perpetuates environmental injustice. If local governments were given more autonomy to enforce the Clean Air Act, they could shape its enforcement to more …

The Costs Of Critical Habitat Or Owl’S Well That Ends Well, Jonathan Klick, J.B. Ruhl

All Faculty Scholarship

When the Fish and Wildlife Service designated land in four counties of Arizona as “critical habitat” necessary for the protection of the endangered cactus ferruginous pygmy‐owl, property values dropped considerably. When the owl was later delisted, property values jumped back up. We use difference-in-difference and synthetic control designs to identify this effect with Zillow property value data. The results provide an estimate of the costs of this critical habitat designation, and they are considerable, contrary to the regulators’ position that critical habitat protection imposes no incremental costs beyond the original endangered species listing.

Environmental Soft Law As A Governance Strategy, Cary Coglianese

All Faculty Scholarship

Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 …

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

All Faculty Scholarship

This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement …

Paradox In The Bayou: Development And Displacement In America’S Wetlands, Allison Oliver Haertling

University of New Orleans Theses and Dissertations

The bayou communities situated at the southern ends of Terrebonne Parish, Louisiana possess a rich and uniquely diverse cultural heritage. However, economic factors, combined with environmental issues such as land loss from oil and gas dredging, subsidence, and rising seas, have spurred significant migration “up the bayou” in recent decades, threatening the loss of these cultures and leaving behind a population that is growing increasingly more vulnerable. This study investigates the current and anticipated social, physical and fiscal impacts of persistent land loss and population decline on lower Terrebonne Parish, as well as planning strategies for maintaining existing infrastructure and …

The Third Wave Of Electrification: A Normative Tool Against Climate Change​, Elizabeth L. Adams

Notre Dame Journal on Emerging Technologies

This article posits that the United States is now entering a third wave of electrification, one where we understand electricity not only as a universal service, but also as a mechanism for positive societal outcomes, namely the transition to a lower carbon future.

Part I evaluates the first two waves of electrification, starting with the introduction of electricity as a consumer product and transitioning to electrification as a basic right. Part II discusses the American regulatory framework which provides for government oversight of areas deemed to be “of the public interest.” Electric public utilities have participated in and been shaped …

The New Nuclear? Small Modular Reactors And The Future Of Nuclear, Bruce R. Huber

Notre Dame Journal on Emerging Technologies

This article explores Small Modular Reactors, SMRs. It begins by explaining the regulatory and economic structure of the electricity sector in the United States. It then describes the current state of nuclear power before examining SMRs in particular—how they differ from conventional nuclear reactors, what regulatory issues they will confront, and what factors will most directly shape their long-term potential.

Deploying Machine Learning For A Sustainable Future, Cary Coglianese

All Faculty Scholarship

To meet the environmental challenges of a warming planet and an increasingly complex, high tech economy, government must become smarter about how it makes policies and deploys its limited resources. It specifically needs to build a robust capacity to analyze large volumes of environmental and economic data by using machine-learning algorithms to improve regulatory oversight, monitoring, and decision-making. Three challenges can be expected to drive the need for algorithmic environmental governance: more problems, less funding, and growing public demands. This paper explains why algorithmic governance will prove pivotal in meeting these challenges, but it also presents four likely obstacles that …

Spectacular Imaginations Of The Sinking Island, Emma Schneck

Senior Theses and Projects

As entire island nations slip beneath rising seas, how can we reimagine a political future where the effects of climate change are already in full force? In recent years, it has become increasingly apparent that there is a fundamental lack of legal protections for those fleeing environmental degradation and the effects of global sea level rise. This lack of protection is felt particularly strongly in the Pacific region, where many communities are faced with existential threats to their way of life and self-determination. However, despite this historic lack of support from the international community, the Pacific Islands states have continuously …

Shifting Public Perception: Climate Change Means Living With Fire And Smoke, Robert Froembling

Seattle Journal of Technology, Environmental & Innovation Law

The urgency to prepare for the climate crisis has never been greater. We are currently living in the sixth mass extinction and the effects are only going to accelerate. We will inherit more wildfires, larger wildfires, and more frequent wildfires.

This piece is not meant to stoke fear in its readers or be depressing, but to shift public perception on what our future holds by evaluating the laws and science presented to us. This piece will look at regional and federal regulations and assess the increased rate of forest fires and the grave public health concerns from stagnant smoke specifically …

Protecting Water Quality In Virginia: Recommendations To Combat Sea Level Rise And Increased Storm Events, Madhavi Kulkarni

Virginia Coastal Policy Center

Impairment of Virginia waters is tied to coastal storm hazards and sea level rise because excess floodwaters are contaminated by flood-exposed industrial and residential facilities, and these toxic floodwaters flow into the state’s water bodies. In Virginia, thousands of industrial facilities can potentially be subjected to the effects of stormwater flooding, hurricane storm surge, and sea level rise, in turn affecting water quality. Failing or unmaintained septic systems also pose a major threat to the quality of Virginia waters that increases with recurrent inundation by flood waters. A combination of changes to law and policy and investment in infrastructure are …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Planning For A Managed Retreat: Moving In A New Direction, Caitlin Parry, Michael Heard Snow, Ryan Franklin

Virginia Coastal Policy Center

Climate change is altering the United States’ coastline in both subtle and extreme ways. The threat is especially pressing in the Commonwealth of Virginia, which is experiencing sea levels rising faster than the global average. As global sea level rise continues to increase, coastal communities across the country must make difficult decisions about their futures. Instead of waging an endless war with the tide, one option for them to consider is the process of managed retreat, which provides a long-term solution by relocating communities away from vulnerable areas. Low to moderate income communities face a variety of additional social and …

Building Towards A Resilient Virginia: Using C-Pace Financing To Improve The Resiliency Of Commercial Buildings, Jessica Kraus, Cesare Piermarini

Virginia Coastal Policy Center

When discussing how to combat problems caused by climate change and rising sea levels, the focus is often on developing and using alternative sources of clean energy. However, while slowing climate change is a worthy goal, it is too late to prevent climate change impacts in many areas in Virginia. Vulnerable flood zones all over the state are already being inundated with periodic flooding. This flooding causes extensive damage to commercial structures in the area. For example, it is estimated that Hurricane Florence alone caused between $200 million and $1 billion in flood damage in Virginia. Commercial property owners can …

Trash Talk: An Exploration Of The Problem Of Marine Debris And Some Virginia-Specific Solutions, Elizabeth Pindilli

Virginia Coastal Policy Center

In an effort to address the problem of marine debris, the Virginia Coastal Zone Management Program (Virginia CZMP) undertook a planning process that resulted in the Virginia Marine Debris Reduction Plan (VMDRP) in 2014. In light of the policy issues raised in the VMDRP, this paper will explore the issue of marine debris and some possible solutions that can be pursued in Virginia.

This abstract has been adapted from the author's introduction.

Indigenous Communities Versus Oil Companies: Identifying Trends In Tactics And Success Of Indigenous-Led Anti-Petroleum Movements In The Ecuadorian Amazon, Ella V. H. Carlson

Independent Study Project (ISP) Collection

In roughly the last 50 years, the Ecuadorian Amazon has become the epicenter of petroleum production in Ecuador. As oil companies attempt to exploit more and more of the rainforest, they have encroached on indigenous lands, leading to violations of indigenous rights through environmental destruction. As their territories have been invaded, indigenous groups throughout the Amazon have formed movements large and small in resistance to petroleum activities. Scholars have studied select campaigns in the past, but the literature lacks a comparative review of the characteristics of those movements. This paper compiles histories of seven campaigns against petroleum in the Ecuadorian …

The Lasting Impacts Of Mass Consumerism And The Disposable Culture: A Proposition For The Development Of Plastic Shopping Bag Bans In Texas Law, David Brewster

St. Mary's Law Journal

This Article addresses the developing state of plastic bag bans in Texas municipal and state jurisprudence. The Article recites the history of plastic bag bans and their impacts on the environment, the issues pertinent to municipal powers as regulatory devices, and analyzes the most recent case regarding bag bans in Texas, which is the Texas Supreme Court’s opinion in City of Laredo v. Laredo Merchants Association. The Article makes suggestions about how to move forward in developing municipal plastic bag bans for the benefit of the environment, and addresses the immediate impacts of bag ban litigation and legislation in …

Regulatory Abdication In Practice, Cary Coglianese

All Faculty Scholarship

“Meta-regulation” refers to deliberate efforts to induce private firms to create their own internal regulations—a regulatory strategy sometimes referred to as “management-based regulation” or even “regulation of self-regulation.” Meta-regulation is often presented as a flexible alternative to traditional “command-and-control” regulation. But does meta-regulation actually work? In her recent book, Meta-Regulation in Practice: Beyond Normative Views of Morality and Rationality, Fiona Simon purports to offer a critique of meta-regulation based on an extended case study of the often-feckless process of electricity regulatory reform undertaken in Australia in the early part of this century. Yet neither Simon’s case study nor her book …

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have …

On Environmental Law, Climate Change, And National Security Law, Mark P. Nevitt

Faculty Articles

This Article offers a new way to think about climate change. Two new climate change assessments—the 2018 Fourth National Climate Assessment (“NCA”) and the United Nations Intergovernmental Panel on Climate Change’s Special Report on Climate Change— prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change an environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement within nations …

Management-Based Regulation, Cary Coglianese, Shana M. Starobin

All Faculty Scholarship

Environmental regulators have embraced management-based regulation as a flexible instrument for addressing a range of important problems often poorly addressed by other types of regulations. Under management-based regulation, regulated firms must engage in management-related activities oriented toward addressing targeted problems—such as planning and analysis to mitigate risk and the implementation of internal management systems geared towards continuous improvement. In contrast with more restrictive forms of regulation which can impose one-size-fits-all solutions, management-based regulation offers firms greater operational choice about how to solve regulatory problems, leveraging firms’ internal informational advantage to innovate and search for alternative measures to achieve the intended …

Rights, Water, And Guardians: How Rights Of Nature Movements Are Reshaping Our Current Environmental Ethics And What These Policies Need To Be Successful, Megan Schmiesing

Pitzer Senior Theses

Giving legal rights to nature is no longer a fringe idea in international environmental law. Rights of Nature movements have gained traction in countries around the world, including Ecuador, Australia, India, Aotearoa New Zealand, and the United States. The act of organizing to recognize legal rights and legal personhood for nature represents a philosophical, moral, and political shift from previous anthropocentric values. Through two case studies in Aotearoa New Zealand and the United States, this thesis examines the policy language and the context and history that led to their creation. The Te Awa Tupua (Whanganui River Claims Settlement) Act and …

Texas Landfills: The Need For Administrative Reform Of The Texas Commission On Environmental Quality’S Permitting Process, William Todd Keller Jr.

St. Mary's Law Journal

Abstract forthcoming