Environmental Law Commons^™

Constitutional Environmental Law, Or, The Constitutional Consequences Of Insisting That The Environment Is Everybody's Business, Robin Kundis Craig

Utah Law Faculty Scholarship

Constitutional environmental law has become a recognized and institutionalized specialty within environmental law, an acknowledgement of the pervasive interactions between the U.S. Constitution and the federal environmental statutes that go well beyond the normal constitutional underpinnings of federal administrative law. This Article posits that constitutional environmental law is the result of Congress consciously deciding that environmental protection is everybody’s business — specifically, from Congress’s that states should participate in rather than be preempted by federal environmental law, that private citizens and organizations should help to enforce the statutes, and that private land and water rights are necessary components of national …

Trickster Law: Promoting Resilience And Adaptive Governance By Allowing Other Perspectives On Natural Resource Management, Robin Kundis Craig

Utah Law Faculty Scholarship

The Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms "trickster law." Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the "pluralism" component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other …

Adaptive Management For Ecosystem Services At The Wildland-Urban Interface, Robin Kundis Craig, J.B. Ruhl

Utah Law Faculty Scholarship

Managing the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars have fully embraced the dynamism, uncertainty, and complexity of the WUI — that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the factor that rampant wildfire is …

Atomizing The Clean Water Act: Ignoring The Whole Statute And Asking The Wrong Questions, Robert W. Adler, Brian House

Utah Law Faculty Scholarship

When attempting to resolve difficult issues of statutory construction involving complex statutes, courts sometimes focus on individual words and phrases without evaluating how they fit within the text and structure of the whole statute. We call this “atomization” of the statutory text. Judges have fallen into this trap in construing the Clean Water Act (CWA) and other lengthy, complex federal environmental statutes. That tendency contributes to ongoing confusion about the scope and coverage of the CWA. During the 2019-2020 Term, the U.S. Supreme Court will resolve a circuit split in the most recent line of cases exhibiting this tendency. Courts …

Survey Of Greenhouse Gas Considerations In Federal Environmental Impact Statements And Environmental Assessments For Fossil Fuel-Related Projects, 2017-2018, Madeleine Siegel, Alexander Loznak

Sabin Center for Climate Change Law

Climate change is already generating enormous costs to the environment and public health both in the United States and around the world. These costs will only escalate over the time with increasing greenhouse gas (GHG) emissions. Under the National Environmental Policy Act (NEPA), U.S. federal agencies must assess the environmental effects of proposals for major federal projects, plans and programs before deciding if they should proceed. To conduct a meaningful environmental review of proposed projects, federal agencies must carefully consider how these projects contribute to climate change and greenhouse gas emissions – particularly for projects concerning fossil fuel extraction, transport, …

Free-Movement Agreements & Climate-Induced Migration: A Caribbean Case Study, Ama Francis

Sabin Center for Climate Change Law

Climate-induced migration has become a global challenge. Climate change intensifies the frequency and severity of disasters, thereby increasing the number of people displaced by extreme weather events. Adverse climate impacts are already exacerbating patterns of human mobility, and will do so to a greater degree in the future. The Internal Displacement Monitoring Center (IDMC) reports that approximately 265 million people have been displaced by natural hazards since 2008. Over 17 million people were internally displaced by disasters in 2018 alone. While the majority of climate migrants are displaced within their home countries, many people are forced to move abroad.

The …

Beeware Of The Consequences: The Importance Of Urban Apiaries And Environmental Adr, Chelsea Gallay

Cardozo Journal of Conflict Resolution

Part I of this note will discuss urban agriculture and the rise of urban beekeeping; Part II will outline the role urban apiaries are playing in today's society; Part III will explore the disputes that arise between urban community members and beekeepers; and lastly, Part IV will discuss how to use environmental dispute resolution techniques, such. as mediation and negotiation, to solve environmental conflicts between urban apiarists and local community members.

Against The Wind—Sustainability, Migration, Presidential Discretion, Steven Ferrey

Suffolk University Law School Faculty Works

The weekend before Christmas 2018, the United States government began its longest shutdown in history, which extended well into the new year. The crisis was the result of the ongoing legal controversies surrounding migratory rights and U.S. immigration policy, and following the shutdown, President Trump declared a national emergency at the southern border. The executive branch has a constitutional responsibility to enforce all U.S. laws. However, while the Trump administration has focused pointedly on executive branch enforcement of immigration and migratory laws at the southern border, it has made no effort to enforce an international treaty and three long-standing U.S. …

Introduction: Property In Ecology, Jonathan H. Adler

Faculty Publications

Are property rights in ecological resources compatible with environmental protection? Might they be essential?

Working at the local level, conservationists have often rediscovered Aldo Leopold’s counsel that private rights can be more effective than government regulation. Conservation goals have been dramatically enhanced by the growth of land trusts and increasing use of property instruments such as conservation easements. Land ownership in fee simple is one way a conservation organization may protect a particular place, but it is hardly necessary in many contexts. Conservation easements and other partial interests in land are often a highly cost-effective alternative, particularly where conservation is …

Why Central Banks Need To Take Human Rights More Seriously, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society.

This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report …

Insurance Coverage In A Climate Changed Canada: How Can Canada Pay For Loss And Damage From Anthropogenic Climate Change?, Eric Dwyer

Dalhousie Journal of Legal Studies

This article looks at the impact of anthropogenic climate change and its associated costs in the Canadian context. It begins by outlining how climate change is predicted to alter the Canadian climate before evaluating how this will affect the insurance industry. It determines that insurers’ response to the unpredictable risks and high costs associated with climate change will lead to significant gaps in coverage. How litigation of major carbon polluters could help cover some of the costs associated with climate change by holding polluters accountable is considered. State-led climate litigation can overcome some of the litigation obstacles identified and it …

The Power Of Prevention: The Extent Of Environmental Authority In The Context Of Local Government, Colleen Thrasher, Jeremy Power

Dalhousie Journal of Legal Studies

This article attempts to delineate the scope of a municipality’s legal power within the realm of environmental management. Part one of this article looks at the legal position of a municipal government in the Canadian constitutional framework. The authors note that municipalities are creatures of statute and their available powers are tightly prescribed by legislation. Part two of this article is a case study of the City of Toronto's efforts to manage pollution in the Great Lake region, particularly with respect to Lake Ontario. Despite the limits to a municipality’s power, the authors argue that many effective pollution prevention strategies …

Pipelines & Power-Lines: Building The Energy Transport Future, James W. Coleman

Faculty Journal Articles and Book Chapters

The United States is in the middle of three profound energy revolutions — with booming production of renewable power, natural gas, and oil. The country is replacing coal power with renewable and natural gas power, reducing pollution while saving consumers money. And it has dramatically cut its oil imports while becoming, for the first time in half a century, an important oil exporter. The U.S. is on the cusp of an energy transformation that will provide immense economic and environmental benefits.

This new energy economy will require massive investment in energy transport — especially power lines to bring wind and …

Energy Competition: From Commodity To Boutique & Back, James W. Coleman

Faculty Journal Articles and Book Chapters

Energy products such as power, gas, and oil have long been the world’s premier commodities. Consumers demand that power and fuel are available when they want it and they prefer to pay less for it. Few know or care where their fuel or power comes from. So for years energy companies believed that efforts to differentiate their products were mostly ineffective — they were re-signed to compete on price in fierce global commodity markets. But in recent years, a new focus on regulating how energy commodities are produced has begun to splinter previously integrated energy markets, creating markets for boutique …

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Faculty Scholarship

Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …

From Paris To Projects: Clarifying The Implications Of Canada’S Climate Change Mitigation Commitments For The Planning And Assessment Of Projects And Strategic Undertakings (Full Report), Robert B. Gibson, Karine Peloffy, Daniel Horen Greenford, Meinhard Doelle, H Damon Matthews, Christian Holz, Kiri Staples, Bradley Wiseman, Frédérique Grenier

Reports & Public Policy Documents

Canada has signed the Paris Agreement and made other international commitments to doing our fair share of what is needed to keep overall global warming to the Paris Agreement limit of well below 2ºC, and to aim for 1.5ºC, to avoid devastating climate change. However, we have not yet progressed far in translating these commitments into implications for decision making on proposed undertakings with significant implications for meeting those commitments.

Clarifying those implications and determining how best to incorporate them in deliberations and decision making is overdue and now imperative. The federal government’s new Impact Assessment Act, which is now …

U.S. Climate Change Litigation In The Age Of Trump: Year Two, Dena P. Adler

Sabin Center for Climate Change Law

More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge. Nevertheless, climate change is one arena where the Trump Administration’s regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review and other decisionmaking; and hindered adaptation to the impacts of climate …

Determining Climate Responsibility: Government Liability For Hurricane Katrina?, Teresa Chan, Michael Burger, Vincent Colatriano, John Echeverria

Sabin Center for Climate Change Law

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, the Environmental Law Institute hosted an expert panel to explore this ruling and its potential implications for future litigation in a …

New Climate Law Will Reshape Ny’S Key Sectors, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Deep changes in the way electricity is generated, people and goods move around, and buildings are erected and renovated in New York will be required by the Climate Leadership and Community Protection Act (CLCPA), which both houses of the state Legislature have passed and Governor Andrew Cuomo has promised to sign.

Regulating In The Face Of A Changing World: Legal Regulation Of Climate Change, Michael B. Gerrard

Faculty Scholarship

Everyone knows that the temperatures have been going up. While tern, peratures bounce around from year to year, when looking at five,year averages, the trend is unmistakable. A well,known adverse effect of these changes is that the Arctic is warming; the extent of Arctic sea ice declin, ing had dipped to a record low in 2015. A decreased level of sea ice has led to the rise of sea levels, which have increased at an accelerated pace. There are a number of projections about what the future pace of sea level rise will be, but most scientists believe it most …