Environmental Law Commons^™

Environmental Justice As Civil Rights, Wyatt G. Sassman

Richmond Public Interest Law Review

Environmental justice litigation using the Equal Protection Clause and civil rights statutes has largely failed. This article explains that failure as a result of a general shift by federal courts to limit the scope of civil rights law rather than an improper characterization of environmental justice as a civil rights issue. This explanation is important to both encourage and caution environmental justice advocates and scholars as they approach claims under Title VIII. I suggest that Title VIII's ability to bridge property and dignity may still present a powerful and much-needed tool for bringing equality to environmental law, but that, based …

Women Talking About Water: Feminist Subjectivities And Intersectional Understandings, Leila M. Harris, Jyoti Phartiyal, Dayna Nadine Scott, Megan Peloso

Articles & Book Chapters

In this study based on discussions held by women's groups across Canada on water challenges and interests, we recognized that in the current context in Canada, women are truly connected with peoples, humans or any other form of life. They recognize that water is socially embedded, integrating issues of social, ecological and intergenerational justice in relation to complex changes in riparian landscapes. Clearly their talk is from a gender perspective, but we also found movement beyond gender that nuanced cross-sectoral understanding, critical links between gender, class and ethnicity are frequently mentioned.

A History Of The Law Clinics At St. Mary's University School Of Law., Sue Bentch

St. Mary's Law Journal

Abstract Forthcoming.

Beyond Science And Hysteria: Reality And Perceptions Of Environmental Justice Concerns Surrounding Marcellus And Utica Shale Gas Development, Ann M. Eisenberg

Faculty Publications

The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial …

Sustainability Reporting And New Governance: South Africa Marks The Path To Improved Corporate Disclosure, Ruth Jebe

Cardozo Journal of International and Comparative Law

The past decade has seen a dramatic increase in corporate disclosure of environmental and social information in the form of sustainability reporting. This growth trajectory, coupled with dissatisfaction with current reporting schemes, has fueled debate over the future of sustainability reporting. The discussion consists primarily of criticism of existing reporting systems and is often polarized between proponents of continued voluntary reporting and proponents of increased mandatory reporting. Missing from the debate is a critical recognition: the shortcomings of existing reporting mechanisms reflect the public policy drawbacks of the processes that created them.

This Article addresses the question of how to …

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

An Environmental Understanding Of The Local Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article is adapted from Chapter Three of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published in 2014 by ELI Press. The book updates and expands on the author’s previous work, describing in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article outlines a comprehensive framework for understanding how traditional local land use authority can be used to preserve natural resources and environmental functions at the community level.

New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …

Regulating Farming: Balancing Food Safety And Environmental Protection In A Cooperative Governance Regime, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

After providing a brief overview of regulation in each area, Part I of this Article identifies three types of discordance between produce safety and environmental protection on farms. First, because of limited resources, farmers will have to choose between implementing food safety practices and implementing environmental practices. Second, indirect trade-offs between the two regulatory goals result in damaging collateral consequences for the environment. Food safety regulation may exacerbate a range of existing environmental harms. Third, there is at least one direct clash that may make compliance with food safety law incompatible with participation in certain environmental programs. Part I also …

A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, designed as a resource for environmental law professors both domestically and abroad, addresses how environmental quality standards are created, implemented, and enforced in the United States. The answers to these questions are useful to those teaching U.S. environmental law and international scholars, especially in the European Union, who are faced with the challenge of creating new environmental quality standards under both national and EU directives. It must be noted that this project is complicated by the federal system within the country, and, thus, attention must be devoted to the federal-state relationship. In fact, the major relevant statutes, the …

Environmental Privacy, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article looks to nuisance doctrine, surveillance under environmental statutes, and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience, to date, balancing the need for environmental information with privacy. Section A analyzes common law nuisance and its relationship to individual privacy concerns and concludes that the law affords little *7 value to or protection of privacy in the context of at least one type of environmental externality -- conduct that gives rise to a common law nuisance. Recognizing that most environmentally significant individual behaviors do not constitute a …

Environmental Privacy, Katrina F. Kuh

Utah Law Review

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial …

Myths Of Environmental Law, Albert C. Lin

Utah Law Review

Environmental law is pervaded by myths—i.e., assumptions that are inaccurate, misleading, or false. These myths arise in various contexts, ranging from wetlands mitigation schemes and pollution credit trading programs to legal regimes premised on the concept of sustainability. This Article explores several myths of environmental law, their origins, and their roles. While political reasons explain in part the creation and prevalence of these myths, more is at work behind these myths than mere politics or failures to implement the law. The myths of environmental law facilitate the management of ecologically complex systems by providing a reductionist account of them. Beyond …

Rethinking The Geography Of Local Climate Action: Multilevel Network Participation In Metropolitan Regions, Hari M. Osofsky

Utah Law Review

As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metroregional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.

This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Point Source” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition.

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Navigable Waters” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its meaning, then examines how the term has been applied in the context of tributaries and wetlands, isolated waters, groundwater, and EPA’s unitary theory of navigable waters. The author then analyzes EPA and the Corps’ 2014 proposed amendments to the definition of “waters of the United States,” and concludes that those amendments may resolve much of the interpretive crisis.

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina S. Warren

Faculty Scholarship

It goes by many names: cannabis, marijuana, pot, chronic, grass, reefer, shwag, Mary Jane. Whatever the name, the trend is clear: the weed is legal but the herb ain’t green. Nearly half of all U.S. states have enacted—or have pending— legislation to legalize, decriminalize, or in some way permit the use and cultivation of marijuana. As a result, marijuana has become a significant topic of conversation in the U.S.— especially in the areas of social policy and criminal law. One conversation yet to reach fruition, however, is the industry’s projected impacts on energy demand and the climate. As the industry …

Is The Bay Delta Conservation Plan Adequately Funded?, Vincent Vu

UC Law Environmental Journal

No abstract provided.

Isolated Wetland Commons And The Constitution, Blake Hudson, Michael Hardig

Journal Articles

Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This Article makes a normative argument that, in the absence of state or local programs providing holistic isolated wetland protection, federal action is needed. The …

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Faculty Scholarship

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …