Environmental Law Commons^™

Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly

Public Land & Resources Law Review

Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.

An Ecological, Cultural, And Legal Review Of Pacific Lamprey In The Columbia River Basin, Adam Wicks-Arshack, Matthew Dunkle, Sammy Matsaw, Christopher Caudill

Idaho Law Review

Pacific lamprey (Entosphenus tridentatus) is an anadromous species in an ancient lineage of jawless fishes. The species is native to the North Pacific and its marine-accessible freshwater rivers and streams. Pacific lamprey are understudied relative to other anadromous fishes and has severely declined in abundance throughout the Columbia River Basin. Indigenous people of the Snake and Columbia River Basins have long recognized the ecological role and value of lamprey through their spiritual and cultural practices connected to Pacific lamprey. The combined effects of poor passage at dams, historic and continued habitat degradation, and altered marine host conditions have contributed to …

Structuring Better Caps For Sustainability Incentive Programs, Courtney Moran, Casey Ball

Idaho Law Review

Policymakers who are eager to promote the development and adoption of environmentally sustainable technologies too often ignore certain important regulatory principles when crafting incentive programs. Some approaches to limiting and winding down sustainability incentive programs have proven to be inefficient and unjust. Too often, the winding down process only begins when lawmakers face unpredicted budgetary constraints. This article argues that state and federal lawmakers could better promote economic efficiency and equity in sustainability-oriented policy design by more consistently adhering to the principles of gradualism, adequate notice, and respect for investment-backed expectations. Using examples of deficiencies in certain net metering program …

Transboundary Pollution And Cercla Liability: International Manufacturers' Ability To Exploit Aerial Depositions, Connor M. Callahan

Idaho Law Review

The Trail Smelter has a long and extensive history of pollution issues. The most recent claim against the Trail Smelter is the aerial deposition of hazardous waste theory. The Ninth Circuit has rejected attaching Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability to the Trail Smelter under the aerial deposition theory, but this holding cannot be accepted if the goal is to control pollution. Many issues arise with controlling transboundary pollution, including the enforcement of international agreements on the matter. In the absence of establishing an enforceable international treaty between the United States and Canada, CERCLA presents a viable …

An Ecological Theory Of Statutory Interpretation, Nicholas S. Bryner

Idaho Law Review

Canons of construction serve as a set of ground rules that judges rely on in interpreting statutes. Substantive canons of construction, in particular, are principles and presumptions that point judges in a specific policy direction in order to serve underlying public values. Many of these substantive canons share a common justification: judges have developed them to mitigate threats of irreversible harm to vulnerable and underrepresented interests and to incentivize clarity in the legislative process. This Article argues that environmental interests—the interests of present and future generations in maintaining ecological conditions that support life—merit similar protection. Therefore, judges should employ an …

Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith

Maine Law Review

Environmental issues have transformed the areas of law that I have taught for the last thirty-one years. A decade ago environmental law went virtually unmentioned in courses in property, domestic oil and gas law, and international transactions. By 1995 environmental concerns had moved from the periphery to center stage in these legal fields. To someone who teaches and writes about these subjects, the clearest manifestation of this development has been that virtually every first-year property casebook, mining or oil and gas law casebook, and international business transactions casebook, written in the last five years now includes segments on environmental law. …

Paris When It Sizzles: What Agenda 21 Can Tell Us About The Likely Success Of The Paris Agreement, Jennifer Devlin Calkins

Washington International Law Journal

The Paris Agreement seeks to address the problem of climate change, a pressingly urgent issue, and one that is extraordinarily difficult to tackle. A primary mitigation mechanism is the requirement that member countries report their nationally determined contributions (“NDCs”) goals and provide metrics for measuring progress in reducing greenhouse gas emissions. This is a “bottom-up” mechanism that does not bind parties to particular emissions targets, but acts to shift party behavior by making progress transparent. To predict the potential effectiveness of this mechanism, this Comment investigates the effectiveness of a similar mechanism contained in Agenda 21, a plan of action …

Food Localization: Empowering Community Food Systems Through The Farm Bill, Joshua Ulan Galperin, Brian Fink, Alexandra Schluntz

Elisabeth Haub School of Law Faculty Publications

Our intent in this Article is not to delineate foods that are local or not local, nor is it to lionize one agricultural production method over another. Rather, we hope to build on the literature that for many decades has documented how local communities have emerged as influential actors on the American food system through establishing control over local supply chains often alongside national and global supply chains. We begin with Part I, which explores how some food-system scholars have conceptualized these democratic changes occurring. We look to Thomas Lyson’s concept of civic agriculture, which attempts to move corporation-oriented communities …

Foreword: Private, Environmental, Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is the invited foreword to the 2017 J.B & Maurice C. Shapiro Environmental Law Symposium issue of the George Washington Journal of Energy and Environmental Law. The 2017 symposium was dedicated to the issue of private environmental governance. This essay recognizes the incredible growth of private environmental governance as an area of study in the legal academy. In addition to introducing the various contributions to the symposium issue, this essay proposes that rather than merely studying "private environmental governance" as an independent concept, scholars should look closely at the individual components, "private," "environmental," and "governance," to better understand …

The Control Of Methane And Voc Emissions From Oil And Gas Operations In The Western United States, Arnold W. Reitze Jr.

Utah Law Faculty Scholarship

This article discusses the regulation of hydrocarbon emissions, including the emissions of methane, a potent greenhouse gas, from the oil and gas industry in the western United States. It covers the regulations of the Environmental Protection Agency, the Bureau of Land Management, and other Federal agencies. It also discusses the state laws of the major oil and gas producing western states: California, Colorado, New Mexico, Utah, and Wyoming. It covers operations on public, state, and private lands, but it does not cover oil and gas operations on Indian lands that are the subject of the author’s previous article.

Harvest The Wind, Harvest Your Dinner: Using Law To Encourage An Offshore Energy-Food Multiple-Use Nexus, Robin Kundis Craig

Utah Law Faculty Scholarship

Most scholars discuss the food-water-energy-climate nexus as it emerges on land. Less attention has been paid to the food-water-energy-climate nexus as it exists in the ocean, but that nexus exists—and it is beginning to be strained. This Article, a companion piece to the forthcoming “It’s Not Just an Offshore Wind Farm,” explores the international drive to combine offshore wind facilities with marine aquaculture, an emerging example of the water-energy-food nexus in the marine environment. Many nations are becoming increasingly interested in both offshore wind farms and open ocean marine aquaculture, but both enterprises take up considerable space in the marine …

Directors’ Liability And Climate Risk: Canada-Country Paper, Janis P. Sarra, Cynthia Williams

Commissioned Reports, Studies and Public Policy Documents

The Commonwealth Climate and Law Initiative (CCLI) is examining the legal basis for directors and trustees to take account of physical climate change risk and societal responses to climate change, under prevailing statutory and common (judge-made) laws. These are the first comprehensive legal assessments of the discharge of directors’ duties in the climate context for four Commonwealth common law countries: Australia, Canada, South Africa, and the United Kingdom. These have been complemented by conferences in Australia (August 2016), Canada (October 2017), South Africa (January 2018) and the UK (June 2016).

The national legal papers follow a uniform structure and can …

Disclosure Of Information Concerning Climate Change: Liability Risks And Opportunities, Cynthia A. Williams

Commissioned Reports, Studies and Public Policy Documents

The Commonwealth Climate and Law Initiative (CCLI) has published two legal research papers on Canadian fiduciary duties and disclosure obligations in the climate change context. In Obligations in Business and Investment: Implications of Climate Change, legal analysis by Dr Janis Sarra, Presidential Distinguished Professor and Professor of Law University of British Columbia, shows that directors, officers and pension fund trustees must identify and address climate-related financial risk or they may be personally liable for breach of their fiduciary obligation or duty of care. In Disclosure of Information Concerning Climate Change: Liability Risks and Opportunities, Cynthia A. Williams, Osler …

The Fragile Menagerie: Biodiversity Loss, Climate Change, And The Law, James M. Chen

Indiana Law Journal

I. THE HIPPODROME OF THE GODS: RACING AGAINST ECOLOGICAL AND

EVOLUTIONARY APOCALYPSE....................................................................... 304

II. ACROSS THE APOCALYPSE ON HORSEBACK: LEGAL RESPONSES

TO BIODIVERSITY LOSS .................................................................................... 310

A. OVERKILL ........................................................................................... 310

B. ALIEN INVASIVE SPECIES ..................................................................... 316

C. HABITAT DESTRUCTION AND PUBLIC LAND MANAGEMENT .................. 321

1. ISLAND BIOGEOGRAPHY .............................................................. 321

2. PUBLIC LANDS MANAGEMENT..................................................... 325

III. THE ENDANGERED SPECIES ACT: FROM PRIVATE LANDS TO

GLOBAL COMMONS .......................................................................................... 329

A. ENDANGERED SPECIES ACT MECHANICS .............................................. 330

1. LISTING ENDANGERED AND THREATENED SPECIES....................... 330

2. CRITICAL HABITAT ..................................................................... 333

3. INTERAGENCY CONSULTATION .................................................... 333

B. HABITAT CONSERVATION ON PRIVATE LANDS...................................... 335

C. …

A Fixed Rule For A Changing World: The Legacy Of Lucas V. South Carolina Coastal Council, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

In light of the 25th anniversary of the Supreme Court’s Lucas decision, this Article reexamines the actual relevance of the opinion by weighing the framing, reach, and aftermath of Justice Scalia’s majority opinion. This Article argues that Justice Scalia’s opinion consciously framed the regulatory takings doctrine in a more favorable way for private property owners, and by doing so, helped pave the way for subsequent denial that environmental and climate concerns are a valid basis for any government action. Justice Scalia attempted to create a regulatory environment that protects private real estate investments instead of protecting the public environment as …

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Journal Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and land-use implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …

Unwise Integration Of The Foreign Account Tax Compliance Act Into The Common Reporting Standard - Taking Taiwan As An Example, Yi-Hsin Wu

Cardozo International & Comparative Law Review

The note critically examines the challenges of integrating the Foreign Account Tax Compliance Act (FATCA) with the Common Reporting Standard (CRS), using Taiwan as a case study. It argues that integrating FATCA into CRS is unnecessary and could exacerbate compliance burdens for financial institutions, particularly in jurisdictions like Taiwan that have already invested significant resources into FATCA compliance. Instead, the note advocates for revising FATCA to clarify its provisions and reducing withholding tax obligations, while postponing CRS implementation to allow better preparation and avoid unfair competitive disadvantages.

Examining Procedural Justice And Legitimacy In Corporate Offending And Beyond-Compliance Behavior: The Efficacy Of Direct And Indirect Regulatory Interactions, Michael P. Vandenbergh, Melissa Rorie, Sally Simpson, Mark Cohen

Vanderbilt Law School Faculty Publications

The large-scale physical and financial consequences of corporate environmental violations are undeniable. In 2015, for instance, Volkswagen was found to have installed software on some of its diesel models that allo\xed the cars to pass emissions tests while producing up to forty times more emissions than allowed. Aside from the obvious use of deceptive advertising and the financial harm suffered by Volkswagen investors and car owners (Chevs 2015: Greene and Foley 2015: Shah 2015), it has been estimated that these actions will cause sixy premature deaths, thirty-one cases of' chronic bronchitis, and thirty-four other cases of serious cardiac and respiratory …

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes of …