Environmental Law Commons^™

The Lower Churchill Panel Review: Sustainability Assessment Under Legislative Constraints, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper reviews the experience of applying a sustainability framework in the assessment of the Lower Churchill Hydroelectric project in Labrador, Canada. In it's 2011 report, the Joint Review Panel proposed a decision-making framework for determining whether and how the project would make a net contribution to sustainability. In its framework, the panel considered the distribution of environmental, social, and economic impacts, benefits, risks and uncertainties.

Ea Expert Panel Report: Reflections On Canada's Proposed Next Generation Assessment Process, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

In this paper, we share our preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017. The report is the result of an open and thorough public engagement process that heard from a large number of Canadians with a keen interest in EA. The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment. Some elements will require further thought, and much of the critical detail …

Looking Up, Down, And Sideways: Reconceiving Cumulative Effects Assessment As A Mindset, A. John Sinclair, Meinhard Doelle, Peter Duinker

Articles, Book Chapters, & Popular Press

Despite all the effort that has gone into defining, researching and establishing best practices for cumulative effects assessment (CEA), understanding remains weak and practice wanting. At one extreme of implementation, CEA can be described as merely an irritant to the completion of a project-specific environmental assessment (EA). At the other extreme, the conceptual view is that all effects in EA should be deemed cumulative unless demonstrated otherwise. Our purpose here is to consider how we might reconceive CEA as a mindset that is at the heart of absolutely every assessment of valued ecosystem component (VEC) to ensure that we understand …

From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle

Articles, Book Chapters, & Popular Press

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …

Revisiting Transnational Corporations And Extractive Industries: Climate Justice, Feminism, And State Sovereignty, Sara Seck

Articles, Book Chapters, & Popular Press

This Article explicitly examines the relationship between climate justice, gender, and transnational fossil fuel extractive industries by drawing upon feminist theoretical insights. First, I provide an overview of the differential impacts of climate change on women and briefly review insights from select international legal scholars who have considered gender and climate change. Second, I describe the Philippines climate petition, a novel attempt to seek an investigation into the accountability of transnational fossil fuel companies for climate harms. Third, I examine three sets of issues arising in the Philippines climate petition and draw explicitly upon Karen Knop’s Re/Statements: Feminism and State …

Takings, Torts, And Background Principles, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

How Existing Environmental Laws Respond To Climate Change And Its Mitigation, Justin Gundlach

Sabin Center for Climate Change Law

Existing environmental laws interact with public health priorities and with aspects of the changing climate in numerous and varied ways. This chapter does not attempt to catalogue those interactions, but instead focuses on two that are especially important and illustrative of the operation and limitations of existing environmental laws vis-à-vis climate change-driven challenges. The first interaction is between pollution levels boosted by climate change and pollution control laws that employ health-based standards to determine pollution limits. The second is between a wider array of existing laws and the effects of climate change mitigation measures on public health. Examining these interactions …

The Legal Climate On Climate Change: The Fate Of The Epa's Clean Power Plan After Michigan And Uarg, Israel Katz

Brooklyn Journal of Corporate, Financial & Commercial Law

One of the centerpieces of the United States’ effort to combat climate change is the Environmental Protection Agency’s (EPA) controversial Clean Power Plan, which consists of the first-ever federal regulations requiring states to achieve massive carbon dioxide emissions reductions from existing fossil fuel-fired power plants. The regulations operate by setting interim and final emissions target dates for states to ultimately reach an aggregate 32% reduction in carbon emissions by the year 2030. This Note argues that the current regulations will not survive judicial scrutiny, because the U.S. Supreme Court has moved away from traditional administrative deference in instances where an …

Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond

Vanderbilt Law School Faculty Publications

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …

Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass

Vanderbilt Law School Faculty Publications

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that …

The Role Of Law In Adaptive Governance, J.B. Ruhl, Barbara A. Cosens, Robin K. Craig, Shana L. Hirsch

Vanderbilt Law School Faculty Publications

The term “governance” encompasses both governmental and nongovernmental participation in collective choice and action. Law dictates the structure, boundaries, rules, and processes within which governmental action takes place, and in doing so becomes one of the focal points for analysis of barriers to adaptation as the effects of climate change are felt. Adaptive governance must therefore contemplate a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments of many democracies. Nevertheless, over time, law itself has proven highly adaptive in western systems of government, evolving to address and even facilitate the emergence …

A Bird In The Hand: Shotguns, Deadly Oil Pits, Cute Kittens, And The Migratory Bird Treaty Act, Samuel J. Panarella

Faculty Law Review Articles

This Article is presented in three parts. Part I describes the modern application (and misapplication) of the MBTA and briefly sets out the history of the Act, including the widespread, indiscriminate killing of migratory birds for food and fashion in the 19th century that first spurred Congress to act. Building off this history and the clear Congressional intent behind the MBTA to criminalize industrial activities directed at killing birds, Part II sorts human-caused bird killing activities into three categories and proposes the appropriate MBTA liability treatment for each category based both on the original purpose of the Act and on …

Accumulating Risk: Environmental Justice And The History Of Capitalism In Detroit, 1880-2015, Josiah John Rector

Wayne State University Dissertations

This dissertation is an environmental history of Detroit, Michigan from the 19th century to the present. Recent scholarship on the history of capitalism has largely ignored the problem of environmental inequality, and the negative externalities of economic growth. In contrast, studies of the environmental justice movement have richly documented race, class, and gender inequalities in environmental risk exposure. However, they have neglected the relationship between the development of the environmental justice movement and the restructuring of American capitalism since the 1970s, including deindustrialization and the shift to neoliberalism. Bringing these fields together, this dissertation connects Detroit’s long-term economic transformation to …

Business Responsibilities For Human Rights And Climate Change - A Contribution To The Work Of The Study Group On Business And Human Rights Of The International Law Association, Sara L. Seck

Reports & Public Policy Documents

This contribution to the work of the International Law Association’s Study Group on Business and Human Rights considers the relationship between business responsibilities for human rights and climate change. While it is now widely accepted that the adverse effects of climate change undermine the enjoyment of human rights, and that businesses have a responsibility to respect human rights, the relationship between business responsibilities for human rights and climate change is unclear. This paper first considers state duties to protect human rights from climate change harms, including harms arising from business activities, and second, considers how the business responsibility to respect …

Paris, Panels, And Protectionism: Matching Us Rhetoric With Reality To Save The Planet, Abbey Stemler, Scott Shackelford, Eric Richards

Vanderbilt Journal of Entertainment & Technology Law

US rhetoric has not matched reality in the free trade or sustainability contexts, as may be seen by the ongoing debates surrounding a range of behaviors that violate international trade rules. The US government's failure to adhere to the rules that it was instrumental in crafting sets a particularly troubling precedent. These trade distortions reduce trust and respect among countries and undermine efforts to combat climate change. Simultaneously, we are witnessing a growing preference for "minilateral" agreements, as may be seen in the Obama Administration's push for the Trans-Pacific Partnership and US-EU Trade Pact. This trend is likely to continue …

Legal Challenges For "Leaving It In The Ground": Touchstone Development And Holdings, Steven Ferrey

Suffolk University Law School Faculty Works

Renewable technologies are proven as an alternative mechanism for power production and their costs are rapidly decreasing. This allows the U.S. deliberately to leave climate-changing fossil fuels in the ground. Utilities in several states are now attempting to extend the life of certain fossil-fuel generating assets and pull more fossil resources from the ground, often using federal ISO wholesale markets to try to cross-subsidize these older plants. However, law is not yet structured to accommodate a system where fossil fuel power generation remains in the ground as the nation switches to solar and wind power.

While able to store fossil …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Governmental Tort Liability For Disclosure Of Flood Hazard Information (Legal Fact Sheet Ctsg-17-04), Audrey Elzerman

Sea Grant Law Fellow Publications

Local governments and governmental entities, their employees, and members of their boards and commissions may be subjected to lawsuits in connection with municipal activities.This fact sheet reviews claims that may arise against them under tort law for negligence related to coastal management actions.

The Epa’S Endangerment Finding On Aircraft Greenhouse Gas Emissions: A Preliminary Analysis, Katherine A. Bechina, John C. Nettels, Brett A. Shanks

Journal of Air Law and Commerce

No abstract provided.