Environmental Law Commons^™

Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

Polar Opposites: Assessing The State Of Enviromental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival

Faculty Scholarship

No abstract provided.

Trademarks And Private Environmental Governance, David E. Adelman, Graeme W. Austin

Notre Dame Law Review

This Article examines the relationship between private environmental governance and trademark law. Over the past two decades, green trademarks and other forms of private governance have flourished in tandem with the retreat from national and international public law modalities of environmental regulation. The rising political opposition to environmental regulation partly accounts for this change. Also relevant is the rise of globalization, which due to jurisdictional and trade constraints has diminished the effective regulatory control countries have over products sold in their markets.

Private environmental governance is premised on consumers “voting with their wallets” by selecting products that reflect not just …

The Proposed New Federal Impact Assessment Act (Iaa) Under Bill C-69: Assessment & Reform Proposals, Meinhard Doelle

Research Papers, Working Papers, Conference Papers

This working paper starts with an overview of the proposed Canadian Impact Assessment Act (CIAA), introduced in Parliament in February 2018 as part of Bill C-69. The Bill was introduced following a multi-year consultation effort by the federal government on how to improve the federal assessment and decision-making process in Canada to regain public trust in the process and federal project decisions. Following a general overview of the key changes, the paper offers a detailed assessment of three key elements of the proposed reforms, the Review Panel process, public participation, follow-up, and the role of strategic and regional assessments under …

The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen Johnson

Articles

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is the most frequently cited Supreme Court administrative law decision and has generated substantial scholarship over the past thirty-four ears. Almost three decades ago, Robert Glicksman and Christopher Schroeder examined the nature of judicial review of the actions of the Environmental Protection Agency ("EPA") by the federal courts during the agency's first twenty years of existence, focusing, in part, on the changing nature of that review in light of the Chevron decision. Glicksman and Schroeder concluded that the courts aggressively reviewed EPA's actions during the agency's early years, interpreting the …

Regulation Of Radioactive Fracking Waste, Elizabeth Ann Glass Geltman, Nichole Leclair

Publications and Research

Natural gas extracted form shale reached record production totals in 2015 in the United States and the US Energy Information Administration (EIA) forecasts natural gas production will continue to increase. Wastes from shale gas extraction can contain the radioactive isotopes radium-226 (Ra-226) and radium-228 (Ra-228), which decay further into radon (Rn). Exposure to radon, a form of naturally occurring radioactive materials (NORM), is the leading cause of lung cancer in the United States, after smoking. This article explores how states handle the disposal of technologically enhanced naturally occurring radioactive materials (TENORM) and/or NORM waste from oil and gas operations to …

Empowering Consumers And Investors To Choose A Sustainable Future, Olivier Jamin

Seattle Journal of Environmental Law

Compelled commercial disclosures have been an increasingly hot topic over the last few years, as illustrated by the GMO labeling controversy, finally enacted into law in August 2016. Typically, judicial challenges to such disclosure represent a clash between two distinct interests: the consumers’ “right to know” against companies’ freedom of speech under the First Amendment of the United States Constitution. Establishing a clear test to analyze the constitutionality of compelled commercial disclosures has proven difficult because of the Supreme Court’s confusing jurisprudence with regard to this issue.

This article aims at promoting two ideas. First, it seeks to refine the …

The Semicommons And Wisconsin Water Quality, David A. Strifling

Marquette Intellectual Property Law Review

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing …

Unleashing The Power Of The States: Broadening The Preemption Waiver So States Are Empowered To Combat Vehicle Emissions, Eric M. Feldpausch

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Fracking Mess: Just Compensation For Regulatory Takings Of Oil And Gas Property Rights, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

As the Trump administration tries to roll back federal regulations on the oil and gas industry, constituents depend on state and local governments for protection from the worst impacts of industrial-scale fracking. Yet as the debate about proper regulation of the oil and gas industry continues, the specter of potential takings liability looms over the public discourse. Such liability is premised on the idea that government regulation of fracking might constitute a taking of private property that requires payment of just compensation — that is, the amount of money that should be paid to owners if indeed there is a …

Food Federalism: States, Local Governments, And The Fight For Food Sovereignty, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recently, a number of states have sought to withdraw or restrain local power. In this Article, which is part of the “Re-Thinking State Relevance” symposium hosted by the Ohio State Law Journal, I write about a state taking the opposite approach, and attempting to affirmatively endow its local governments with additional powers. The state is Maine, and the context is control over local food production and sales. This Article begins by addressing the emergence of the sustainable local foods movement broadly, and reasons for the growth of this movement. It then focuses more pointedly on the food sovereignty movement, considering …

The Paralysis Paradox And The Untapped Role Of Science In Solving “Big” “Environmental Problems, Jan G. Laitos, Christopher Ainscough

Sturm College of Law: Faculty Scholarship

Part I considers the daunting scope and extent of the environmental problem addressed by the article. The “problem” consists of an enormous number of abandoned mines and AMLs in the West, affecting numerous rivers and watersheds, where the cost of mine cleanup seems astronomical, and the source of the money to pay for the cleanup elusive. In Part I, probability theory is used to assess the true scope of the AML problem, by estimating the impacts and risks to people and their environment. Part II addresses the state of current law as it applies to abandoned hardrock mines. A review …

Distributed Renewable Energy: Summary And Key Recommendations, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Distributed generation (DG) is probably the energy source most impacted by different levels of government and non-governmental actors. This makes DG vulnerable to policy choices, and consequently the recommendations for this chapter are many. However, DG is also most immediate to consumers, especially with new technologies or rate structures that give them feedback about their own individual generation and consumption patterns. This, along with exciting new leaps in DG technologies, suggest there are opportunities for DG to play an increasing role in significantly decarbonizing U.S. energy.

Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins

Faculty Publications

Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. …

Introduction To The Special Feature Practicing Panarchy: Assessing Legal Flexibility, Ecological Resilience, And Adaptive Governance In Regional Water Systems Experiencing Rapid Environmental Change, Barbara Cosens

Articles

This special feature presents articles on the cross-scale interactions among law, ecosystem dynamics, and governance to address the adaptive capacity of six watersheds in the United States as they respond to rapid environmental change. We build on work that assesses resilience and transformation in riverine and wetland social-ecological systems across the United States at a variety of scales, levels of development, and degrees of degradation, focusing specifically on the Anacostia River, Central Platte River, Klamath River, Columbia River, Middle Rio Grand River, and the Everglades wetlands. All of these cases involve complex institutional systems, histories involving ecological and social regime …

Conservation Easements For Green Urban Spaces, Matthew Olhausen

UC Law Environmental Journal

No abstract provided.

Bridging The Safe Drinking Water Gap For California’S Rural Poor, Camille Pannu

UC Law Environmental Journal

No abstract provided.

A Zero-Emissions Future: Whither California?, Paul Cort

UC Law Environmental Journal

No abstract provided.

California’S Cap And Trade Extension: How Senate Bill 775 Envisioned A New Path To Reduce Greenhouse Gas Emissions, Bob Wieckowski

UC Law Environmental Journal

No abstract provided.