Environmental Law Commons^™

Legal Initiatives Driving Clean Up Of Chesapeake Bay, Roy A. Hoagland, Jon Mueller

Faculty Publications

No abstract provided.

Siting Offshore Hydrokinetic Energy Projects: A Comparative Look At Wave Energy Regulation In The Pacific Northwest, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

No abstract provided.

Sequential Climate Change Policy, Edward A. Parson, Darshan Karwat

Articles

Successfully managing global climate change will require a process of sequential, or iterative, decision‐making, whereby policies and other decisions are revised repeatedly over multiple decades in response to changes in scientific knowledge, technological capabilities, or other conditions. Sequential decisions are required by the combined presence of long lags and uncertainty in climate and energy systems. Climate decision studies have most often examined simple cases of sequential decisions, with two decision points at fixed times and initial uncertainties that are resolved at the second decision point. Studies using this formulation initially suggested that increasing uncertainty favors stronger immediate action, while the …

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

Solar Rights For Texas Property Owners, Sara Bronin

Faculty Articles and Papers

In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, …

Notional Generosity: Explaining Charitable Donors' High Willingness To Part With Conservation Easements, Josh Eagle

Faculty Publications

No abstract provided.

Legal Implications For The U.S. In Transferring Ccs Technology To China, Amy Ward

Sabin Center for Climate Change Law

This paper addresses the legal and related political and economic implications for U.S. public and private sector investors, and U.S. CCS technological proprietors, in participating in CCS demonstration projects in China through the provision of investment and technology transfers.

Climate Change, Forests, And Federalism: Seeing The Treaty For The Trees, Blake Hudson

University of Colorado Law Review

Despite numerous attempts over the past two decadesincluding, most recently, the Copenhagen climate discussions in late 2009-international forest and climate negotiations have failed to produce a legally binding treaty addressing global forest management activities. This failure is due in large part to a lack of U.S. leadership. Though U.S. participation in ongoing forest and climate negotiations is essential, scholars have not fully explored the potential limiting effects of federalism on the United States' treaty power in the area of forest management. Such an exploration is necessary given the debate among constitutional law scholars regarding the scope of the treaty power, …

Valley Floor, Veery Maxwell

UC Law Environmental Journal

No abstract provided.

A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …

Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones

St. Mary's Law Journal

The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …

Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …

Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors

St. Mary's Law Journal

The reliability of LIDAR (Light Detection and Ranging) is generally questioned for one of two reasons. First, when the speeding charge is of such great importance to the defendant that he must challenge the technology. Second, when the defendant is charged with a different and more serious crime because of the traffic stop. In this instance the reliability of the equipment provides the opportunity to question the stops’ underlying probable cause. Assuming the particular jurisdiction has not settled the issue of reliability of LIDAR evidence, the court must require the prosecutor to present expert testimony to show reliability. In the …

Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

Journal Articles

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation …

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Journal Articles

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from …

The Enforceability Of Exacted Conservation Easements, Jessica Owley

Journal Articles

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation …

Rescuing The Strong Precautionary Principle From Its Critics, Noah M. Sachs

Law Faculty Publications

The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme.

In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm …