Is A Substantive, Non-Positivist United States Environmental Law Possible?,
2012
Chicago-Kent College of Law
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …
A Functional Approach To Risks And Uncertainties Under Nepa ,
2012
Villanova University School of Law
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
Michigan Journal of Environmental & Administrative Law
The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns …
Greenpeace, Social Media, And The Possibility Of Global Deliberation On The Environment,
2012
Indiana University Maurer School of Law
Greenpeace, Social Media, And The Possibility Of Global Deliberation On The Environment, Michael Roose
Indiana Journal of Global Legal Studies
Greenpeace uses the developmental republican model of democratic
governance for setting organizational policy. This model does an excellent
job of forming members into effective leaders who are committed to the
organization and its mission. However, Greenpeace could more effectively
encourage the global community to become involved in environmental
activism and set more responsive policy by employing an Internet-based
deliberative democracy policy-setting process.
"What The Frack?" Why Hydraulic Fracturing Is Abnormally Dangerous And Whether Courts Should Allow Strict Liability Causes Of Action,
2012
University of Kentucky
"What The Frack?" Why Hydraulic Fracturing Is Abnormally Dangerous And Whether Courts Should Allow Strict Liability Causes Of Action, Neal J. Manor
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Botanical Gardens: Driving Plant Conservation Law,
2012
Clemson University
Botanical Gardens: Driving Plant Conservation Law, Amy Hackney Blackwell
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Preventing Atoms For Peace From Becoming Atoms Of Terror: The National Environmental Policy Act Is Not A Vehicle For Addressing Terrorism,
2012
The Catholic University of America, Columbus School of Law
Preventing Atoms For Peace From Becoming Atoms Of Terror: The National Environmental Policy Act Is Not A Vehicle For Addressing Terrorism, David D. Leege
Catholic University Law Review
No abstract provided.
Cercla In A Global Context,
2012
University of Maryland Francis King Carey School of Law
Cercla In A Global Context, Robert V. Percival, Katherine H. Cooper, Matthew M. Gravens
Faculty Scholarship
The article first reviews the essential features of CERCLA and how they have evolved over time through legislative amendments and judicial interpretation. The article then compares CERCLA's approach to that embodied in the European Union's 2004 Directive on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage ("ELD:). It then reviews the laws adopted by various countries, including EU members, to respond to releases of hazardous substances. The article then discusses several case studies of how different countries handled incidents of environmental contamination. It concludes by summarizing the comparative law of environmental remediation and its implications for …
Home State Regulation Of Environmental Human Rights Harms As Transnational Private Regulatory Governance,
2012
Dalhousie University Schulich School of Law
Home State Regulation Of Environmental Human Rights Harms As Transnational Private Regulatory Governance, Sara Seck
Articles, Book Chapters, & Popular Press
Home state mechanisms designed to address harms arising from overseas resource extraction have recently been considered in Canada. This paper will examine whether such mechanisms could be viewed as an example of transnational private regulatory governance, and the implications of doing so for our understanding of both public international law and transnational private regulatory governance. After first briefly unpacking the idea of transnational private regulatory governance, the paper will compare common understandings of the scope of home state jurisdiction to regulate transnational corporations under international human rights and international environmental law. Recent developments in Canadian law and policy culminating in …
The Character Of The Governmental Action,
2012
Columbia Law School
The Character Of The Governmental Action, Thomas W. Merrill
Faculty Scholarship
Penn Central Transportation Co. v. New York City holds a secure position in the architecture of the regulatory takings doctrine. That doctrine is at bottom a tool for distinguishing between different governmental powers; in particular, between the power of eminent domain and the police power. Because eminent domain requires that compensation be paid, whereas the police power does not, it is necessary to draw a line between these powers. Conceivably we could simply take the legislature at its word as to which power it is exercising. But at least since Pennsylvania Coal Co. v. Mahon, the Supreme Court has insisted …
American Natures: The Shape Of Conflict In Environmental Law,
2012
Columbia Law School
American Natures: The Shape Of Conflict In Environmental Law, Jedediah S. Purdy
Faculty Scholarship
There is a firestorm of political and cultural conflict around environmental issues, including, but running well beyond, climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world …
Human Security And Military Preparedness,
2012
William & Mary Law School
Human Security And Military Preparedness, Linda A. Malone
Faculty Publications
No abstract provided.
Finality In Brownfields Remediation And Reuse,
2012
University of Richmond
Finality In Brownfields Remediation And Reuse, Joel B. Eisen
Law Faculty Publications
The intersection of brownfields redevelopment and these broader concerns presents a host of issues. Does redevelopment of brownfields connect to a larger vision for the city that links with "smart growth" and climate action goals? Retooling the original developer-centered vision of VCPs to promote broader goals is an ongoing challenge. Has the affected community been involved in planning for brownfields remediation, or has the developer controlled the process? The latter narrows the ability to view the project as part of a community-wide plan, and undermines its legitimacy. Finally, if brownfields redevelopment yields benefits, how can we measure success over the …
The Legal Roadmap For Environmental Sustainability In Africa: Expansive Participatory Rights And International Environmental Justice,
2012
Pace University School of Law
The Legal Roadmap For Environmental Sustainability In Africa: Expansive Participatory Rights And International Environmental Justice, Alali Tamuno
Dissertations & Theses
The primary goal of this study is to strengthen the participatory environmental rights model in Principle 10 of the Rio Declaration on Environment and Development and similar regional provisions and to promote International Environmental Justice. The first part of the argument in this dissertation is that the three pillars of participatory environmental rights in Principle 10 of the Rio Declaration on Environment and Development and similar regional provisions need to be strengthened with a fourth environmental rights pillar in the form of a right of access to broad environmental education, which includes anti-corruption education, especially public sector corruption, in order …
The Twilight Of National Land Use Policy, 45 J. Marshall L. Rev. 237 (2012),
2012
UIC School of Law
The Twilight Of National Land Use Policy, 45 J. Marshall L. Rev. 237 (2012), Fred Bosselman
UIC Law Review
No abstract provided.
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law,
2012
University of Michigan Law School
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann
Articles
When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …
Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative.,
2012
St. Mary's University
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,
2012
University of Colorado Law School
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,
2012
American University Washington College of Law
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 …
California's War Over The Bay-Delta: Historic Failures And Current Battles,
2012
Claremont McKenna College
California's War Over The Bay-Delta: Historic Failures And Current Battles, Jessica J. Mao
CMC Senior Theses
California has one highly-coveted possession: the Bay-Delta, which is the second largest estuary in the United States. Today, tensions are higher than ever as Southern California continues to grow and demand water from the Delta, agriculture suffers from drought and less-than-promised water allocations, and aquatic life diminishes due to environmentally damaging processes like pumping and exporting of water elsewhere. This paper will examine the historic policies that have shaped how the Delta has been managed, their successes and failures, and current plans in discussion for continuing improvement of the Delta. The Bay-Delta Conservation Plan and the Sacramento-San Joaquin Valley Water …
Tide,
2012
UC Law SF
