Environmental Law Commons^™

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This essay, written for the Environmental Law Symposium on 21st Century Water Law, presents an alternative view. Specifically, this essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case …

Hydraulic Fracturing Additives: A Solution To The Tension Between Trade Secret Protection And Demands For Public Disclosure, Travis D. Van Ort

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Adverse Effects Of Aquatic Invasive Species On Native Commercial And Recreational Fisheries Of The Great Lakes And The Exacerbation Of The Problem By Judicial Reluctance To Act, Andrew S. Leung

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

Remedying The Misuse Of Nature, Sanne H. Knudsen

Articles

As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer.

In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private …

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, …

Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael B. Gerrard

Faculty Scholarship

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination.1 Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid …

Obama Reelection Clears Path For Numerous New Epa Regulations, Michael B. Gerrard

Faculty Scholarship

The reelection of President Barack Obama means that a long list of new regulations will be issued by the Environmental Protection Agency (EPA) in the coming months. Some had been held up because of their political sensitivity, and others were still in process, but many will soon be ready for further action.

The election results also mean that major new environmental legislation is very unlikely for the next two years. The House of Representatives is still firmly controlled by the Republicans, and their leadership has not signaled any major change from the last Congress’ stance of opposition to many EPA …

State Public Utility Commissions' Powers To Advance Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Improving energy efficiency is widely acknowledged as the most economical way to reduce greenhouse gas emissions and the other adverse environmental impacts of fossil fuel use. Indeed, efficiency measures often yield net cost savings over a fairly short period of time.

The United States lacks a comprehensive regulatory program for energy efficiency. The Environmental Protection Agency and the Department of Transportation set fuel economy standards for motor vehicles (and on Aug. 28, 2012, finalized a major tightening of those standards). The Department of Energy sets many appliance standards and administers certain grant and research programs. The Federal Energy Regulatory Commission …

Recent Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

When a litigant brings a lawsuit under New York’s State Environmental Quality Review Act (SEQRA), the odds of success have never been high. However, the cases decided in 2011 exhibiteda stark exception to this general rule: Project applicants who were frustrated by governmental delays or obstacles won six of the seven cases they brought under SEQRA.

The volume of SEQRA litigation continues to decline. In 2011 the courts decided 35 cases under SEQRA, the lowest number since this column began its annual survey in 1990. The second lowest was 37 in 2010; the third lowest was 45 in 2009. (Previously …

Hurricane Katrina Decision Highlights Liability For Decaying Infrastructure, Michael B. Gerrard

Faculty Scholarship

A March 2, 2012, decision from the U.S. Court of Appeals for the Fifth Circuit, little noticed outside of New Orleans, has broad implications for the liability of federal agencies for injuries caused by the decay or obsolescence of infrastructure due to erosion, sea level rise, and other ongoing conditions, whether of natural or human origin. Less directly, the decision also affects the liability of state and municipal governments, and even private entities in charge of built structures.

This article describes the underlying facts, the decision, and its implications. It also considers how governments and private parties can, to a …

Reverse Environmental Impact Analysis: Effect Of Climate Change On Projects, Michael B. Gerrard

Faculty Scholarship

Environmental impact statements (EISs) examine the effect of the proposed action – typically a construction project, but sometimes a government policy or other activity – on the environment. However, increasing attention is now devoted to looking in the other direction – at how changes in the environment might affect a project.

Reverse environmental impact analysis, as I will call it, has been with us for some time. For example, if a building is planned downwind of a smokestack or downstream of a contaminated groundwater plume, this effect of the outside world has long been considered. However, the emergence of scientific …

Dc Circuit Clears Path For Ghg Rules, But Politics Remain, Michael B. Gerrard

Faculty Scholarship

What may have been the most important environmental decision of 2012 dismissed numerous challenges to the rules issued by the U.S. Environmental Protection Agency (EPA) to control emissions of greenhouse gases (GHGs). While further legal battles are looming, the most serious remaining threats to EPA's program are in the political sphere.

This article describes the ruling in Coalition for Responsible Regulation v. EPA, forecasts EPA's next moves, and describes the battles still ahead for EPA.

Court Ruling Gives Green Light To Epa Ghg Regulations – Positive For Natural Gas, Renewables, And Efficient Vehicles, Mark Fulton, Michael B. Gerrard, Jake Baker, Lucy Cotter

Faculty Scholarship

On June 26, 2012, a panel from the US Court of Appeals for the District of Columbia Circuit Court unanimously upheld the US Environmental Protection Agency’s (EPA) landmark greenhouse gas (GHG) regulations, keeping intact the EPA’s authority to regulate carbon emissions from vehicle tailpipes and stationary sources.

The case is of great importance as it effectively clears the way for the EPA to proceed with its proposed rules to regulate CO₂ emissions from both new power plants and from other new stationary sources, in addition to pressing ahead with new vehicle emission standards.

The Environment In New York State, Michael B. Gerrard, Claire H. Woods

Faculty Scholarship

This article explores the environmental policy in New York State. Science is significant as a driver of environmental policy, but public opinion is even more important. The story of the New York State's water supply is dominated by the historic quest to supply water to New York City. The State Environmental Quality Review Act (SEQRA) has been the most fertile source of environmental litigation in New York State courts. New York's solid waste expenditures have soared as it has had to pay commercial landfills and incinerators to take waste that had previously been cheaply dumped at Fresh Kills. New York …

At Issue: Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Relatively simple measures, such as switching to more efficient lightbulbs and insulating commercial buildings, hold great promise in efforts to combat climate change. So what's the holdup?

Mexico's General Climate Change Law, Michael B. Gerrard, Anne Siders

Faculty Scholarship

Mexico’s General Climate Change Law (CCL) creates a coherent and ambitious national framework within which Mexico may fulfill its Copenhagen Pledge and establish itself as an international leader in climate change mitigation, but achieving these ends will require significant and on-going support from the Mexican government.

Science Heads List Of Candidate Debate Queries, Michael B. Gerrard

Faculty Scholarship

Policy on the environment, energy, and natural resources has seldom figured prominently in a presidential election, all the less so as time elapses since the first Earth Day. To judge by the more than twenty debates thus far in the current presidential campaign, it isn’t likely to be on top of the agenda this year. Although regulation itself has been featured in the campaign – recall the criticism of the new lightbulb efficiency standards and of the Solyndra bankruptcy, not to mention rejection of climate change science – broader topics in environmental policy have largely taken a back seat to …

Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith

University of Michigan Journal of Law Reform Caveat

The Clean Air Act (CAA) is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals and states to develop implementation plans to achieve those goals. The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter. Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act. Because of the substantial costs associated with the CAA standards, there is an incentive for …

Energy And Environmental Justice: How States Can Integrate Environmental Justice Into Energy-Related Proceedings, James M. Van Nostrand

Catholic University Law Review

No abstract provided.