Environmental Law Commons^™

The Twilight Of National Land Use Policy, 45 J. Marshall L. Rev. 237 (2012), Fred Bosselman

UIC Law Review

No abstract provided.

Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman

St. Mary's Law Journal

This Article addresses the copyright concerns in appropriation art today and concludes that copyright law should be amended to address the complex issues found in this area of the law. Part II provides a background on appropriation art and the different facets of copyright law, including the doctrine of fair use. Part III analyzes whether appropriation art can even be considered “fair use” under the current exceptions of copyright infringement. Part IV discusses various legal tests to determine whether appropriation art that utilizes copyrighted material can exercise the doctrine of fair use against alleged copyright infringement. It also proposes a …

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

Reclaiming Global Environmental Leadership: Why The United States Should Ratify Ten Pending Environmental Treaties, Mary Jane Angelo, Rebecca M. Bratspies, David Hunter, John H. Knox, Noah Sachs, Sandra B. Zellmer

Working Papers

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. In the last two decades, however, U.S. environmental leadership has faltered. The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only shortfall. The United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. This white …

The Public Trust Doctrine And The Montana Constitution As Legal Bases For Climate Change Litigation In Montana, Gregory S. Munro

Faculty Law Review Articles

This article examines the need to resort to law and the legal process to address the risk posed by climate change to Montana and its people.

Part II provides a brief overview of global warming. Part III demonstrates how civil litigation can and should provide a meaningful role in addressing climate change. Part IV traces the origin of the public trust doctrine and how the U.S. Supreme Court and Montana Supreme Court have applied the doctrine in the past. Part V argues that principles underlying the public trust doctrine make it appropriate for the Montana courts to expand the doctrine …

Tide, Adam Regele

UC Law Environmental Journal

No abstract provided.

The Global Food System, Environmental Protection, And Human Rights, Carmen G. Gonzalez

Faculty Articles

The global food system is exceeding ecological limits while failing to meet the nutritional needs of a large segment of the world’s population. While law could play an important role in facilitating the transition to a more just and ecologically sustainable food system, the current legal framework fails to regulate food and agriculture in an integrated manner. The international legal framework governing food and agriculture is fragmented into three self-contained regimes that have historically operated in isolation from one another: international human rights law, international environmental law, and international trade law. International trade law has taken precedence over human rights …

A Risky Business: Generation Of Nuclear Power And Deepwater Drilling For Offshore Oil And Gas, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Government regulation and licensing of industrial activities that create the possibility of catastrophic risk reflect “a political value judgment that these activities provide a social benefit that is greater than the social cost of the risks that they cause.” However, when a catastrophic accident occurs, the cost-benefit evaluations underlying the value judgment that authorized the activity may need to be rethought. Social rethinking is especially warranted when the accident could have been prevented had either the industry or the government more seriously assessed the risk of a catastrophic event and implemented precautionary steps to avoid it. This was the conclusion …

Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis

St. Mary's Law Journal

The Texas Legislature should update its legislation pertaining to posthumously conceived children. More than 20,000 children are born from artificial insemination each year, some of whom are conceived following their father’s death. Whether or not these children are entitled to a share in their father’s estate is a question for each state legislature. Many states have adopted a version of the Uniform Parentage Act (UPA). The UPA states that once paternity of a posthumously conceived child is established, the child is entitled to inherit from the deceased’s estate. Texas has adopted the UPA in part and has added stringent requirements …

Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching Essay., Richard Flint

St. Mary's Law Journal

An essay is presented on consumer bankruptcy policy in the U.S. It informs about the significant changes in the consumer bankruptcy introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 including incorporation of an ability-to-pay test as a requirement for getting the benefits of the act. It reviews the Catholic social teaching related to the interrelationship between the dignity of man and his rights and duties to promote justice and the common good.

In-House But Out In The Cold: A Comparison Of The Attorney-Client Privilege In The United States And European Union Comment., Andrew R. Nash

St. Mary's Law Journal

Abstract Forthcoming.

Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts

St. Mary's Law Journal

The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs may often join responsible third parties as additional defendants. Under such situations, all culpable parties are before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” …

Marsh Usa Inc. V. Cook: One Final Step Away From Light., Michael D. Paul

St. Mary's Law Journal

Abstract Forthcoming.

Texas's Spoliation Presumption., Rebecca Simmons, Michael J. Ritter

St. Mary's Law Journal

Abstract Forthcoming.

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid

St. Mary's Law Journal

The National Conference of Commissioners on Uniform State Laws (ULC) approved the Revised Model State Administrative Procedure Act (2010 MSAPA) in 2010. The model state administrative procedure acts (APA) have been one of the most successful endeavors of the ULC. They have played a major role in encouraging states to incorporate concepts of fairness into state agency procedure statutes and to make express provisions for judicial review of administrative action. Those states that adopted the model acts accomplished fairness goals while bringing efficiency and accuracy into the state administrative process. By providing an overview of the Act’s new features, this …

War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky

St. Mary's Law Journal

Abstract Forthcoming.

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Akron Law Faculty Publications

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Protecting The Public From Bpa: An Action Plan For Federal Agencies, Noah M. Sachs

Law Faculty Publications

Bisphenol-A (BPA) is a ubiquitous industrial chemical found in everything from baby bottles to cash register receipts. From its inauspicious creation in the laboratory by a group of scientists trying to synthesize an estrogenic compound for the pharmaceutical industry, it has become a fundamental building block of the multi-billion dollar plastics industry. Unfortunately, ever since anomalous results appeared in two research labs using BPA containing plastic equipment in the 1980s, evidence of the chemical’s toxicological risks has continued to mount. The chemical is an endocrine disruptor, meaning that it interferes with the body’s hormone system, and BPA’s health risks include, …

Virginia's Expanded Nutrient Trading Law: Will It Help Restore The Chesapeake Bay While Allowing For Growth, Margaret L. Sanner

Richmond Public Interest Law Review

On April 18, 2012, Virginia Governor Bob McDonnell boosted the Commonwealth's pollution-reduction toolbox with an expanded nutrient trading program when he signed H.B. 176/S.B. 77 into law.' Sparked by the issuance of the Chesapeake Bay Total Maximum Daily Load (the "Bay TMDL"), which updated pollution limits for the Chesapeake Bay and tributaries, and the Virginia Chesapeake Bay TMDL Phase I Watershed Implementation Plan (the "Phase I WIP"),2 the expanded nutrient trading program allows myriad new market participants to generate and sell certified "nutrient credits"3 to others to meet existing limits or to offset new pollution from expansion.4 If the program …

Can Vermont Put The Nuclear Genie Back In The Bottle: A Test Of Congressional Preemptive Power?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Even before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan re-stoked public anxiety about nuclear energy, Vermont’s Senate, under the auspices of Vermont Act No. 160, voted to block continued operation of Vermont Yankee Nuclear Power Plant after the expiration of its forty-year operating license. This article examines whether a state can legislatively override a permit issued by the Nuclear Regulatory Commission extending the license of a power plant. The author places this question within a broader federalism context, in which states assert their sovereign rights to regulate the environment in the shadow of federal mandates. …