Environmental Law Commons^™

V. 13, 2022 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Natural Transplants, Vanessa Casado-Pérez, Yael R. Lifshitz

Faculty Scholarship

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions …

Lumpy Social Goods In Energy Decarbonization: Why We Need More Than Just Markets For The Clean Energy Transition, Daniel E. Walters

Faculty Scholarship

To avoid the worst consequences of global climate change, the United States must achieve daunting targets for decarbonizing its electric power sector on a very short timescale. Policy experts largely agree that achieving these goals will require massive investment in new infrastructure to facilitate the deep integration of renewable fuels into the electric grid, including a new national high-voltage electric transmission network and grid-scale electricity storage, such as batteries. However, spurring investment in these needed infrastructures has proven to be challenging, despite numerous attempts by regulators and policymakers to clear a path for market-driven investment. Unchecked, this problem threatens to …

Extraction Of Personal Data: A New Form Of Colonialism Or Continuation Of A Colonial Practice? Adult Native American Adoptees Resist Assimilation And Rebuild Erased Identities, Leonard Mukosi

American Indian Law Journal

A new form of colonialism, distinctive of the 21st century is reported to be taking shape: data colonialism. Data colonialism interprets the contemporary capture and processing of personal data by governments or data corporations as an evolution of historical colonialism. Scholars who advance this theory do not juxtapose the contents, form, let alone the physical violence of historical colonialism with the contemporary practices of appropriation of personal data. Instead, they only refer to historic colonialism in the context of its function within the development of economies on a global scale. The main argument made in this paper is that; to …

Crossing The Dark And Fearful River: Monsanto, Pcbs, And Emerging Tort Theories, Keith Dornan, Jamie Hearn

American Indian Law Journal

guide the discussion.

Tribal, state, and city authorities are currently pursuing or have settled product liability, public nuisance, and other common law and statutory tort claims brought against Monsanto[1] for PCB contamination.^[2] “Sovereign-led” litigation melds traditional plaintiff common law tort litigation with sovereign-led environmental suits and is an emerging trend in environmental law.^[3] Tort claims against the manufacturers of contaminants ubiquitous in the environment give sovereigns a new angle for pursuing damages separate from a traditional statutory environmental claim under federal or state regulatory schemes, such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Law In, Law Out: Legalistic Filter Bubbles And The Algorithmic Prevention Of Nonconsensual Pornography, Daniel Maggen

Cardozo Law Review

In 2019, Facebook announced that it had begun using machine-learning algorithms to preemptively screen uploads for nonconsensual pornography. Although the use of screening algorithms has become commonplace, this seemingly minor move from reactive to preemptive legal analysis–based prevention—this Article argues—is part of a groundbreaking shift in the meaning and effect of algorithmic screening, with potentially far-reaching implications for legal discourse and development.

To flush out the meaning of this shift, the Article draws on the filter bubble theory. Thus far, the phenomenon of filter bubbles has been synonymous with personalized filtering and the social polarization and radicalization it is prone …

A Plea For Survival: Can The Return To Eco-Centrism Strengthen The Legal Protection Of Nature In Sri Lanka?, Asanka Edirisinghe, Michelle Mei Ling Lim

Research Collection Yong Pung How School Of Law

The right to life of all living beings and the duty of humans to co-exist with nature have been recognized in Sri Lankan tradition and religious practice for centuries. Yet, environmental destruction, degradation and pollution due to human activities have become a common phenomenon in contemporary Sri Lanka. Anthropocentric thinking pervades Sri Lankan jurisprudence. Laws and judicial decisions have largely failed to recognize the rights of nature to be protected for its relational and intrinsic values. There is also limited acknowledgement that the very survival of human beings depends on the continuous existence of Mother Earth. Significant shifts from human-centred …

Decarceration With Decarbonization: Renewable Rikers And The Transition To Clean Power, Rebecca Bratspies

San Diego Journal of Climate & Energy Law

This Article offers New York City’s Renewable Rikers project as an example of how this might be done, and how communities might combine decarbonization with decarceration in order to build a more just and sustainable society. By putting racial justice and overburdened communities at the center of building a clean energy grid, Renewable Rikers offers a model for genuine and transformative change that confronts root causes of inequality and builds a better, fairer city. It does so by tying electrification and land use decisions to equity concerns, and by facilitating meaningful community involvement in these infrastructure decisions. In this fashion, …

Hydropower's Promise: The Opportunities And Challenges Of Hydropower For Mitigating Climate-Driven Scarcity, Lauren Perkins, Sylwia Dakowicz, Ellen Hill, Peter Kissel, Sean Neal

San Diego Journal of Climate & Energy Law

This Article examines hydroelectric resources’ ability to assist states throughout the West and across the country in meeting their statutory and policy goals of reduced or zero carbon emissions, while maintaining reliability. Extreme weather events, and associated costs, are not isolated to the Western Interconnection, but rather increasingly impact other regions and their end-use customers. In its 2021 U.S. Hydropower Market Report, the Department of Energy (DOE) noted that, in nearly every Balancing Authority Area assessed, hydropower was more extensively used for hourly ramping flexibility than any other resource. Additional services hydroelectric resources provide, including storage capacity and black start …

How Virtual Powers Plants Can Advance Electrification And Mitigate Infrastructure Needs As We Race To Meet Our Climate Challenges, Kevin B. Jones Phd, Mary Franco, Kim Mashke, Sarah A. Pardee

San Diego Journal of Climate & Energy Law

This paper explores three contemporary case studies of how distributed energy resources have been aggregated into Virtual Power Plants (VPPs) to provide resilient, low carbon solutions for our climate challenge in a manner that can mitigate demands on our energy infrastructure. These recent case studies will analyze distributed energy resources and how they can be aggregated to participate in wholesale electric markets to reduce the demand for larger utility scale resources while also providing grid services locally. These case studies build on previous research on distributed energy resources we have performed at our Institute for Energy and the Environment. The …

Fact Or Doctrine? Inconsistencies In The Application Of The Dormant Commerce Clause's Extraterritoriality Principle To Challenges To State Climate Change Prevention Policies, Kelsey Gagnon

San Diego Journal of Climate & Energy Law

The “dormant” Commerce Clause’s prohibition on extraterritorial regulation has tested state efforts to battle greenhouse gas-induced climate change using clean energy policies. This is partly due to the structure of the North American power grid. Simply put, the electricity generated by an in-state power facility might be consumed by any other state connected to that same interconnection during normal operations. This cross-border flow, sale, and consumption of electricity places the grid within the regulatory grasp of the United States Constitution’s Commerce Clause. Congress therefore has authority to regulate the interstate electricity market. The Supreme Court has also interpreted an implicit …

Will The Border Water Quality Restoration And Protection Act Of 2020 Be Enough To Flush The Tijuana River Valley Water Pollution Crisis Down The Drain?, Kyle A. Rudolph

San Diego Journal of Climate & Energy Law

This Article reviews the complex and decades-long wastewater pollution crisis occurring in the Tijuana River Valley, its legislative history, and whether the Water Quality Restoration and Protection Act of 2020 would flush the Tijuana River Valley water pollution crisis down the drain in light of the promulgation of the USMCA.

Nevada's Energy Choice Initiative: A Case Study Of Deregulation, The Dormant Commerce Clause, And Energy Federalism, Joel A. Kaufmann

San Diego Journal of Climate & Energy Law

The fight over “Energy Choice” or “retail electricity market deregulation” in Nevada demonstrated a disagreement about how to structure electricity markets, economic consequences in the billions of dollars, and thorny legal doctrines like the Dormant Commerce Clause and dual sovereignty. The Energy Choice Initiative was the first attempt to deregulate a state’s retail electricity market by ballot initiative and the first include a right to “Energy Choice.” The Energy Choice Initiative is one example of the growing interest in retail customer choice or “Energy Choice” across the country. In the past two years, Virginia and Arizona considered retail customer choice …

Behind The Concrete Curtain: Acknowledging And Curbing Greenhouse Gas Emissions From Hydroelectric Facilities And River Impoundments, Joseph A. Welsh

San Diego Journal of Climate & Energy Law

From its early use as kinetic power to kick start the industrial revolution, a consensus emerged that hydroelectric power is clean, renewable, and reliable. In contemporary parlance it is universally classified as either “carbon free” or “low-carbon.” The history of hydropower in the United States supports this belief, and its use has rarely been scrutinized. However, an emerging consensus indicates scrutiny is necessary (for hydroelectric power and other energy sources avoiding acute assessment) given the challenges foisted upon us by anthropogenic climate change.

This Article will put the standard hydropower consensus to task and analyze whether it holds water as …

A Taking Timebomb: Loss Of Access Takings As A Barrier To Managed Retreat From Sea Level Rise, Isaac Foote

Minnesota Journal of Law, Science & Technology

No abstract provided.

The ‘Burbs And The Bees: Race, Class, And Rpbb Policy In Minnesota, Julia Brokaw, Hudson B. Kingston, Jordan Hughes

Minnesota Journal of Law, Science & Technology

No abstract provided.

Intellectual Property Rights And Competition Law For Transfer Of Environmentally Sound Technologies, Mahatab Uddin

Pace International Law Review

Battling against climate change, “a common concern of humankind,” is the most prominent global challenge of this century, and Environmentally Sound Technologies (“ESTs”) are the main tools to fight this battle. This article examines the juxtaposed role of Intellectual Property Rights (“IPRs”) and competition laws in facilitating wide-scale innovation and transfer of ESTs in developing and least developed countries. This article covers diverse IPRs, including patents and trade secrets. The discussion and analysis of the IPRs are based on the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). And the discussion on competition law mainly focuses on competition related …

Down And Dirty: Remedies And Reparations For Intersected Environmental And Reproductive Justice, Mickaela J. Fouad

Brooklyn Law Review

Pollution is a rampant issue in the United States, ranging from smog-filled air to infertile soil to contaminated water. Yet despite the pervasive nature of pollution, its harms are not equally distributed amongst society. Black, Indigenous, People of Color (BIPOC) communities disproportionately bear the burden of pollution and consequently suffer more harms because of it. Many of the health consequences from pollution are reproductive in nature: proximity to pollution can compromise fertility, cause difficulty in carrying a pregnancy to term and result in birth defects, disabilities, and reproductive cancers. This note focuses on the reproductive consequences of pollution and relies …

From “Trust” To “Trustworthiness”: Retheorizing Dynamics Of Trust, Distrust, And Water Security In North America, Nicole J. Wilson, Teresa Montoya, Yanna Lambrinidou, Leila M. Harris, Benjamin J. Pauli, Deborah Mcgregor, Robert J. Patrick, Silvia Gonzalez, Gregory Pierce, Amber Wutich

Articles & Book Chapters

Assumptions of trust in water systems are widespread in higher-income countries, often linked to expectations of “modern water.” The current literature on water and trust also tends to reinforce a technoscientific approach, emphasizing the importance of aligning water user perceptions with expert assessments. Although such approaches can be useful to document instances of distrust, they often fail to explain why patterns differ over time, and across contexts and populations. Addressing these shortcomings, we offer a relational approach focused on the trustworthiness of hydro-social systems to contextualize water-trust dynamics in relation to broader practices and contexts. In doing so, we investigate …

To Mulch Or Not To Mulch: Problems With Plastic Mulch And How To Address Them, Rebecca Kim

Journal of the National Association of Administrative Law Judiciary

While environmentally conscious consumers may be concerned about single-use plastic packaging their produce comes in, they likely do not think of the excess of plastics farmers use just to grow that produce. The agricultural industry uses an extraordinarily high amount of plastic, notably through agricultural films, which are thin plastic membranes used for mulching. The predominant use of these films has come to be known as “Plasticulture” and, although plastic mulch has many benefits, its ubiquitous use creates substantial waste that, when broken down into micro plastics, eventually enter the human body. This article evaluates the advantages and drawbacks of …