Environmental Law Commons^™

Federal V. State Effectiveness: An Analysis Of The Endangered Species Act And Current Potential Attempts At Reform, Nicholas Primo

Pepperdine Policy Review

In November 2013, several Congressional leaders drafted a new bill to reform the Endangered Species Act of 1973 (ESA). While the Endangered Species Management Self-Determination Act (ESMSDA) was the first major attempt at updating the crucial U.S. environmental policy in decades, it also inflamed environmentalist defenders of the original bill. More importantly, it raised several questions as to whether state or federal-oriented approaches to endangered species protection and environmental policy more broadly is ultimately more effective. This article analyzes the original 1973 ESA, followed by an analysis of the ESMSDA currently being considered. It will discuss the various strengths and …

Climate Change And Forced Displacement, Jessica A. Wentz

Sabin Center for Climate Change Law

This note, written at the request of former Maldives president Mohamed Nasheed, calls on policy-makers to initiate a more concerted dialogue on how to prepare for and respond to displacement and migration caused by climate change.

Climate Change Securities Disclosures In Australia, Amanda Liu

Sabin Center for Climate Change Law

This working paper looks at the extent to which current securities filings regulations with the Australian securities authorities require (or alternatively, recommend) listed Australian Securities Exchange (ASX) entities to disclose climate change risks on the performance of a listed entity. The paper also reviews what in practice is being reported for the 2013 reporting year.

Pentagon Preemption: The 5-Sided Loss Of Energy And Power, Steven Ferrey

Suffolk University Law School Faculty Works

States have attempted recently to regulate the unique form of electric energy as to its:

· Place – forcing power generation to locate in the state or leave the state

· Price – Providing a higher price for certain power generated in the state or requiring utilities and their ratepayers to pay above market prices for certain power

· Regulatory credit value -- Providing greater credits for in-state power or fuel

Some federal courts have struck state regulation of energy and climate change-related renewable technologies as constituting a violation preempted under the Supremacy Clause of the Constitution in five dimensions. …

Solving The Cso Conundrum: Green Infrastructure And The Unfulfilled Promise Of Federal-Municipal Cooperation, Casswell F. Holloway, Carter H. Strickland Jr., Michael B. Gerrard, Daniel M. Firger

Faculty Scholarship

Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative "green infrastructure" mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional "grey infrastructure" features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial …

Colombia's Herbidice Spraying In The Crucible Between Indigenous Rights, Environmental Law And State Security, Paola Solano

Intercultural Human Rights Law Review

For many years Colombia has struggled with eradicating illicit narcotic crops. Spraying coca and poppy crops aerially with chemical herbicides has been one of Colombia's strategies. However, this practice has resulted in serious violations of human and environmental rights. Because the herbicides were aerially sprayed at locations near, at and across the border with Ecuador, it has caused transboundary damage not only to people, animals and crops but also to bordering Ecuador's natural environment. It has also caused damage to the Colombian environment, population, and Indigenous groups. In 2008, Ecuador submitted an application instituting proceedings to the International Court of …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Journal Articles

Environmental law is riddled with symbolisms of protecting the air we breathe, the water we drink, and the environment in which we live. Sometimes these symbols are simply inherent characteristics of the legislation or policy as their very creation symbolizes or represents the politico’s stance on an issue. Other times, the legislation or policy is used primarily as a symbol, without ever addressing the issue or effectuating change, sometimes referred to as symbolic politics. In this research, we apply the theory of symbolic politics to New York State’s decade-old policy on environmental justice and postulate that although the policy has …

From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis

Journal Articles

This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to …

Green Siting For Green Energy, Amy Wilson Morris, Jessica Owley, Emily Capello

Journal Articles

No abstract provided.

Mitigating The Impacts Of The Renewable Energy Gold Rush, Amy Wilson Morris, Jessica Owley

Journal Articles

Solar energy developers have turned their sights on California’s deserts. Since 2010, local, state, and federal agencies have approved nearly 9,000 megawatts (MW) of solar energy projects in the California desert, including more than 3,000 MW on public lands. The 9,000 MW of approved projects (if all are developed) would require approximately 63,000 acres of total desert land with 21,000 federal acres. The scale of proposed landscape change is unprecedented. Solar energy facilities can be more land-intensive than other forms of energy generation. Because of concern about the potentially devastating impacts of climate change, most major environmental groups have expressed …

Climate Change Triage, Noah M. Sachs

Law Faculty Publications

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.

This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet it has been overlooked by …

Subsidiarity In Principle:Decentralization Of Water Resources Management, Ryan B. Stoa

Faculty Publications

No abstract provided.

The Social Cost Of Of Inertia: How Cost-Benefit Incoherence Threatens To Derail U.S. Climate Action, Melissa Luttrell

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis

Faculty Scholarship

The WTO does not squarely address the issue of jurisdictional ambit of national policies (affecting trade). And yet, absent some agreement as to what trading nations can and cannot do, the WTO loses much of its effectiveness. In the absence of explicit regulation of the issue in the WTO contract, one would reasonably expect WTO Members to behave in line with the postulates governing allocation of jurisdiction embedded in public international law. WTO practice evidences neither an explicit acceptance nor a refusal of these rules.

The Precautionary Principle And Its Application In The Intellectual Property Context: Towards A Public Domain Impact Assessment, Graham Reynolds

All Faculty Publications

This chapter considers whether the precautionary principle - a central element of contemporary environmental law and policy - can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied …

V.5, 2014 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Carbonite Legal Conflict In California, Steven Ferrey

San Diego Journal of Climate & Energy Law

This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

San Diego Journal of Climate & Energy Law

This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …

Energy Policy, Extraterritoriality, The Dormant Commerce Clause, Alexandra B. Klass, Elizabeth Henley

San Diego Journal of Climate & Energy Law

This Article will focus specifically on potential challenges to state energy policy based on the “extraterritoriality doctrine” of the dormant Commerce Clause. In doing so, it considers two recent lawsuits involving dormant Commerce Clause challenges to state energy policy. The first is the lawsuit against the State of California over its Low Carbon Fuels Standard (LCFS) program on grounds that it discriminates against Midwest ethanol producers in favor of California ethanol producers and regulates extraterritorially in violation of the dormant Commerce Clause. The second is the lawsuit by the State of North Dakota, the North Dakota lignite coal industry, and …