Environmental Lawyers Research Articles

Locating Nature: Making and Unmaking International Law

AbstractThis article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. Through tracing the co-evolution of these assumptions about nature alongside seminal disciplinary concepts, it becomes evident that such understandings are central to shaping international law and that the discipline helps universalize and normalize them. By comprehending more broadly the relationship between nature and international law, it is possible to see beyond law's potential to correct environmental harm and identify the disciplinary role in driving ecological degradation. Venturing beyond the purview of international environmental lawyers, this article considers the role of all international lawyers in augmenting and mitigating ecological crises. It concludes that disciplinary solutions to environmental problems require radical departures from existing disciplinary tenets, necessitating new formulations that encapsulate rich and diverse understandings of nature.

Rethinking Global Environmental Law and Governance in the Anthropocene

The word Anthropocene describes a new geological epoch that follows the Holocene epoch. It is the signifier of the period in which people have a devastating and overwhelming impact on the earth and its systems. The Anthropocene also describes the new context in which we are going to have to consider how we should deal with the effects of global anthropogenic ecological change, including how we think about natural resources and energy security. This will require new perspectives on and reimagining orthodox social institutional constructs such as global environmental law and governance, among others, and their ability to successfully mediate the human-environment interface. This article reflects on how we will have to rethink global environmental law and governance as a result of the Anthropocene. It specifically attempts to identify a host of considerations that environmental lawyers, including those who focus on natural resources and energy law, will have to contemplate if global environmental law and governance were to respond better to the many challenges and complexities in the Anthropocene epoch. At a more general level, the article endeavours to introduce the Anthropocene into the environmental law and governance domain as a new discursive context that could hopefully assist in the appropriate future development of global environmental law and governance.

A Lawyer's Hidden Persuader: Genre Bias and How It Shapes Legal Texts by Constraining Writers' Choices and Influencing Readers' Perceptions

Bret Rappaport suggests that genre be considered a kind of cognitive bias, a term he coins "genre bias." Like other cognitive biases, genre in the legal context may skew rational thought in two ways. It constrains the texts that lawyers and judges use in specific circumstances (criminal lawyers, patent lawyers, environmental lawyers, divorce judges), and it influences readers. Indeed, Rappaport reasons that the work of both lawyers and judges is limited by a highly structured set of conventions.Applying these theories, Rappaport turns first to two transactional document genres, patent applications and wills, to show how these highly structured genres function in the real legal world. For transactional documents, he recommends against never altering genre conventions, since these documents must be timeless, multi-purpose, and infinite. However, with persuasive documents, and in particular the appellate brief -- a litigation sub-genre -- he somewhat modifies his advice. Although he recognizes the importance of reader expectations -- here, the court -- he acknowledges that a compelling reason may at times justify the risk of confounding reader expectations by breaking with convention. He concludes by stating that lawyers who view law and legal writing through the lens of genre bias will better understand how legal texts are "conceived, received, and perceived."

The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context

This article argues that environmental regimes entailing considerable administrative discretion are now serving to contextualise and partly to constitute property rights in English law. In particular, rights to use land are ‘democratised’ to varying degrees through the administration of environmental regulation, and are adapted to land‐use problems on an evolving basis. In return, property rights affect environmental regulation, through legal protections for property interests, although the nature of the discretion exercised within environmental regimes seems to determine the kind and extent of this symbiotic influence. As a result, environmental law challenges property scholars to reflect on the impact of administrative decision‐making on property rights, conceptually, doctrinally and in terms of its legitimacy. At the same time, environmental lawyers need to take seriously the nature and legal treatment of property rights in the application and analysis of modern environmental law.

Economic Thought and Climate Disruption: Neoclassical and Economic Dynamic Approaches in the USA and the EU

In this article we consider the economic ideas that have influenced climate disruption law both in the USA and the EU. Although economic thought has led to the adoption of ‘market-based’ mechanisms in both places, its impact has been different: it created regulatory inertia in the USA, and green leadership in the EU — at least with respect to responding to climate disruption. We argue that different culture-specific economic conceptions about appropriate policy and policy analysis may help explain this divergence, thereby illustrating both various economic ideas and their distinct impact on climate law, as well as the need for environmental lawyers to engage with a discipline outside their own.

Significant UK Environmental Cases: 2012-2013

This year’s review considers material developments in domestic case law from April 2012 to April 2013. The volume of case law emerging from the courts has reached a point where an annual review of manageable size cannot hope to cover all the cases handed down. Instead, the increasing challenge for environmental lawyers is to understand the significance of a case and its implications for a particular practice area. Accordingly, this review attempts to highlight the most significant cases for the year and to analyse their implications. The most significant nuisance case of 2012, the Court of Appeal’s decision in Barr v Biffa [2012] EWCA Civ 312 was discussed in last year’s review. It may have clarified the legal principles of nuisance but there are still practical problems associated with resolving group litigation cost effectively. Technical modelling appears to be assuming a greater importance in this respect. Anslow v Norton [2012] EWHC 2610 was the first case post Barr v Biffa. The judgment marks a new chapter in the story on quantum of damage awards in nuisance by providing for a range of awards assessed according to odour modelling which had been done to establish the likely odour impact on a range of claimants.

Observations on Mergers and Acquisitions in the Marcellus/Utica Shale Patch

The discovery of how to efficiently access the gas in the Marcellus and Utica shale formations by horizontal drilling and advanced hydrofracturing techniques has led to a boom in oil and gas merger and acquisition (“M&A”) activity in the New York, Pennsylvania, Ohio and West Virginia regions. Environmental and energy lawyers are increasingly in the middle of such transactions as their clients become buyers of, or sellers to, other oil and gas companies. As development of the Marcellus/Utica shale formations matures, the M&A activity now seen in the Eagle Ford shale formation in Texas may be duplicated. With Henry Hub natural gas spot prices approaching $4.50 per million BTUs (natural gas prices since 2000 have ranged from $2.66 to $13.42 per million BTUs) the M&A activity should further increase. The value of oil and gas transactions in 2012 was $321 billion, up 7% from 2011’s $300.6 billion. Due in large part to low interest rates, which lessen the cost of borrowing the purchase price and provide low returns on invested cash, 76% of mergers and acquisitions in 2012 were for cash, up from 73% in 2011. When gas prices were lower in recent years the finance activity was somewhat diverted to midstream investments in gas processing facilities, gas gathering systems, and pipelines to handle natural gas liquids (“NGLs”), which activities had a higher margin than natural gas sales. This article discusses a few of the legal techniques used for oil and gas mergers and acquisitions, reviews some of the legal issues that should be considered, and discusses a few transaction techniques that use interests in real estate and operational contracts as the vehicle for the transaction.

Environmental Law at the Crossroads: Looking Back 25, Looking Forward 25

Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly the same. And yet, it is that static quality that ironically underscores how much has changed. A generation ago, environmental law scholars would routinely comment on how the only constant in environmental law was change: its dynamic nature. Congress was regularly passing significant statutory amendments in what was largely a constructive iterative lawmaking process, involving federal and state legislatures, agencies, and courts. Some might have worried that the change was too great—making it too difficult for the regulated community to adjust and invest. Whether any such concern then was justified, the concern now is quite different: too little change rather than too much. And the static nature of environmental lawmaking here in the United States stands in sharp contrast to the dynamic nature of environmental lawmaking globally. The United States, once a lauded pioneer, now very much risks being left behind. This essay is written in celebration of the 25th Annual Meeting of the National Association of Environmental Law Societies at the University of Michigan Law School and in recognition of Michigan Law’s hosting of the Association’s inaugural meeting in 1988. The essay focuses on three topics in reflecting on the changes in environmental law and environmental lawmaking since the Association’s first meeting. The first is Congress and the politics of environmental law. The second topic concerns the courts and the changing relationship of constitutional law to environmental law. And, finally, the essay considers the contrasting nature of the challenges that environmental lawyers and environmental law face today as compared to twenty-five years ago.

Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste by Richard Burleson Stewart and Jane Bloom Stewart (review)

Reviewed by: Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste by Richard Burleson Stewart and Jane Bloom Stewart Jason Krupar (bio) Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste. By Richard Burleson Stewart and Jane Bloom Stewart. Nashville: Vanderbilt University Press, 2011. Pp. xiv+427. $65. Since the Manhattan Project and the early days of the U.S. Atomic Energy Commission's reactor development program, the issues surrounding radioactive waste disposal have remained unresolved. Richard and Jane Stewart, environmental lawyers and authors of Fuel Cycle to Nowhere, set out to present a comprehensive analysis of American policy decisions concerning nuclear wastes, from classification to transportation and finally to the actual locating of waste repositories. Rather than focusing attention on specific policy choices or a particular episode in the nation's decades-long struggle to solve the nuclear waste conundrum, the authors ambitiously try to analyze all major policy decisions over the entirety of the problem's lifetime. The authors served as members of the Consortium for Risk Evaluation with Stakeholder Participation, a multi-university group led by Vanderbilt University and sponsored by the U.S. Department of Energy. Fuel Cycle to Nowhere is an effort to influence the recommendations made by [End Page 216] the presidentially appointed Blue Ribbon Committee on America's Nuclear Future. The Stewarts perhaps overstretched themselves in trying to present a comprehensive history of nuclear waste legislation and regulation. The book's first chapter on the development of the nuclear waste regulatory framework is informative, but at times it dissolves into a morass of jargon and redundancy. The next chapter focuses on waste classification and regulation. The authors make an admirable effort to explain the amalgamation of statutes and regulations that, institutionalized over decades, formed the core of the current U.S. waste classification system. However, the chapter suffers from many of the same problems associated with the previous one. The Stewarts shift attention to the policies regulating the transportation of nuclear wastes in the book's third chapter. Absent here was any discussion of the technologies engineered to meet the demands of safely moving nuclear waste across the country, whether by rail or road. A brief comparative analysis between rail and truck modes of transportation surfaced mid-chapter, but the comparison focused primarily on risk calculations. Chapters 5 and 6 contained the most valuable portions of the book. The Stewarts set up a very useful comparison between the Waste Isolation Pilot Plant (WIPP) located near Carlsbad, New Mexico, and the now-closed Yucca Mountain repository in Nevada. The authors demonstrate that, through a largely improvised and flexible process of negotiation, local residents, state officials, and federal agencies achieved compromises that eventually permitted WIPP to open. This piecemeal approach to policymaking encouraged local and state input while requiring the federal government to consider issues that otherwise would have been ignored. The Stewarts contrast the success of WIPP with the Yucca Mountain experience. Although other histories have been written about Yucca Mountain, such as J. Samuel Walker's The Road to Yucca Mountain (2009), Fuel Cycle to Nowhere underscores the stark differences between the two waste repositories. If flexibility and compromise highlight WIPP's success, rigidity and a predetermined site policy characterized the failure of Yucca Mountain to win local and state support. Congressional decisions that designated Yucca Mountain as the sole location the Energy Department could investigate undercut input from residents and state officials while creating adversarial relationships. Unsurprisingly, the state of Nevada refused to accept being sacrificed as the nation's nuclear waste dump. The Stewarts conclude their book with a plan to revise the country's nuclear fuel cycle. The authors admit the necessity of at least one more geologic waste repository. They argue that in locating such a facility, the federal government needs to follow the WIPP model of success. The Stewarts also recommend the creation of a federal corporation to operate such a facility and a reconsideration of how nuclear waste disposal is funded. Environmental and nuclear energy historians will find Fuel Cycle to Nowhere [End Page 217] a useful reference. However, the book suffers from repetition and an overuse of jargon. The comparative...

1. Nature Conservation: Natural Lands and Biological Diversity

In 2013, two inter-sessional meetings were held under the Convention on Biological Diversity (CBD): the Working Group on Article 8(j) (Traditional Knowledge) and Related Provisions (on 7–11 October in Montreal, Canada) and the seventeenth Meeting of the CBD Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) (on 14–18 October in Montreal, Canada). The latter did not address issues of particular interest for international environmental lawyers, as it was mainly aimed at identifying the scientific and technical needs related to the implementation of the Strategic Plan for Biodiversity 2011–20. Among these, the SBSTTA highlighted for the first time the need to draw on social sciences in order to better understand behavioural change, production, and consumption patterns and the use of non-market tools. The SBSTTA also identified the need to better include traditional knowledge in supporting the effective implementation of the plan, with the approval and involvement of knowledge holders as...

“My Goal is to Attract Young Minds to the Pursuit of Environmental Justice.”

Asian Politics & PolicyVolume 5, Issue 1 p. 125-133 PRAXIS “My Goal is to Attract Young Minds to the Pursuit of Environmental Justice.” An Interview with Syeda Rizwana Hasan, Chief Executive, Bangladesh Environmental Lawyers Association First published: 29 January 2013 https://doi.org/10.1111/aspp.12000Citations: 2Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume5, Issue1January 2013Pages 125-133 RelatedInformation

Effectiveness of Environmental Law: What Does the Evidence Tell Us?

A lot of literature has paid attention to ways in which the performance of environmental law could theoretically be improved. Less attention is, however, paid to the question which environmental policy instruments have actually led to a reduction of environmental harm. The problem is not that this material is not available. Since the early use of environmental policy instruments in the 1960s and 1970s various environmental and social scientists have analyzed the effects of particular environmental policy instruments. However, since these results are often published in environmental economics journals, they have to a large extent not led to a large influence in the environmental legal community. Moreover, to the extent the empirical literature is known, it often focuses on one particular aspect, e.g. the effects of an emission trading programme. The enclosed paper tries to fill that gap by looking at the empirical literature with respect to environmental policy instruments in an integrated manner. A large amount of these empirical studies are discussed in a critical manner whereby the various environmental policy instruments (liability rules, regulation, but also market-based instruments such as taxation and emission trading) are discussed in an integrated way. This overview does shed some light on the circumstances under which particular policy instruments (or a combination of instruments) may be effective in reducing environmental pollution. Attention is also specifically paid to the crucial issue of the enforcement of environmental law, thus discussing sanctioning policy and various enforcement strategies. The paper on the one hand brings together a lot of the widely-spread empirical literature with respect to the effectiveness of environmental law; on the other hand it also calls on environmental lawyers to increasingly use this type of empirical literature in environmental policy evaluations. The relevance of the paper is thus both theoretical as well as practical. From a theoretical perspective the paper tests particular assumptions made in environmental policy literature on how environmental law would work, by showing that the results in practice may often be different than what is assumed in theoretical literature. Theoretical literature for example points at the advantage of strict liability in deterring environmental pollution; empirical evidence, however, shows that increasing (strict) liabilities upon polluters also lead to liability avoidance behavior e.g. by organizing hazardous activities within smaller legal entities. This also shows the practical relevance of the paper. By showing under what circumstances particular policy instruments may work, important lessons are provided to the policy maker who e.g. would wish to move to the introduction of an emission trading scheme. The empirical evidence sheds important light on the conditions under which such a scheme can be able to reach the environmental goals desired by the legislator. The empirical evidence which is critically reviewed in this paper moreover relates to the application of environmental law in the US, Europe and developing countries and should therefore be of interest to a broad audience interested in the effectiveness of environmental law.

Public Participation in China's Energy Governance: The Non-Case of Chongqing Green Volunteers v. Yangzonghai Power Company

This case study examines the political, legal, and energy issues raised when some of China's leading environmental lawyers and public advocates filed a complaint aimed at coal plant emissions within a special environmental court in China and with the hope that the court would grant the plaintiff public interest standing. At its simplest, the plaintiff's complaint merely requested the court to ensure the enforcement of existing law and to increase transparency surrounding the power plant's emissions and pollution controls. At its most ambitious, the plaintiff's case tests the robustness of China's promotion of public participation and its reliance on China's weak judiciary to be effective. Additionally, the case study highlights the existence of dual enforcement systems unique to China, and how these dueling systems impact the ability of the public to participate in energy and environmental governance issues. An examination of China's sulfur dioxide (SO2) regulation evinces that enforcement of laws and policies has less to do with written law, and more to do with incentivizing local executive governments to meet specific targets. While the system of executive driven enforcement proved effective at curbing SO2 emissions in China, at least to some extent, it can also marginalize the role of existing law, the judiciary, and the ability of the public to effectively engage in energy and environmental issues. The development of public interest standing within China's environmental courts is also discussed.

The Emerging Practice of Global Environmental Law

AbstractSince the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.

LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Legal Activism for Ensuring Environmental Justice

AbstractThis article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect ofconstituting a basis forstanding forthe activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Louis Kotzé, Global Environmental Governance: Law and Regulation for the Twenty-First Century, New Horizons in Environmental and Energy Law

Louis Kotzé takes on a challenging object of study in his new book, Global Environmental Governance. As stated in its opening pages, [t]he book therefore seeks to provide a point of departure that should enable environmental lawyers to engage more critically with environmental governance. In doing so, its central aim is to aid environmental lawyers to scrutinize environmental governance and to attempt to understand the interplay between law, governance and the environment.1

The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers

AbstractThe concept of transnational environmental law is used descriptively and prescriptively to refer to a multitude of legal processes which are distinct from transnational law in other legal areas. Hence, the rise of transnational environmental law requires environmental lawyers to reflect on their skills and knowledge and to foster both their contributory and interactional expertise in this area. That process of fostering expertise needs to be seen in light of a number of intellectual challenges, including the necessity to engage with comparative environmental law methodology, the need to not privilege one legal system over others, the need to engage with extended legal pluralism, the importance of thinking about the role of language in legal processes, and the significance of understanding the process of co-production.

The Endangered Species Act's Fall from Grace in the Supreme Court

Thirty-five years ago, the Endangered Species Act (ESA) had as auspicious a debut in the United States Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed in judicial opinions, on environmental lawyers’ short list of important cases, a mainstay of law school casebooks, and a lively focus of legal scholarship. As it turns out, however, Hill has become the extreme outlier in the Court’s ESA jurisprudence. In a series of four decisions spaced out from 1992 to 2007, two focused on standing doctrine and two on statutory substance, the Court has silently but unmistakably eviscerated Hill, thereby knocking the ESA off its pedestal. This Article is the first to examine the ESA’s remarkable fall from grace in the Court as a measure of where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law. Part I of the Article provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill decisions in their jurisprudential contexts. The body of the Article then moves through three lessons Hill’s unruly successors have to offer. First, Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the environment as a context for decisions. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while it suggests the Court has at times been apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the history of the ESA in the Court about the design of environmental law, particularly those aimed at ecosystem protection and biodiversity conservation.

Unrestricted access to justice for environmental NGOs? - The decision of the ECJ on the non-conformity of § 2(1) Umweltrechtsbehelfsgesetz with Directive 2003/35 on access to justice in environmental law and the Aarhus Convention (Case C-115/09)

In Case C-115/09, the ECJ has decided that – despite their wording – Art. 10a of the Directive on Environmental Impact Assessment (henceforth: Directive), which implements Art. 9(2) of the Aarhus Convention (henceforth: Convention), requires the Member States to provide unrestricted access to justice for environmental NGOs. This looks like a victory for environmental lawyers who have long advocated the introduction of an ‘altruistic group action’ (‘altruistische Verbandsklage’) in environmental matters, as Germany will have to modify its current transposition of the Directive in some way. Considering the tension between desirable effective implementation of environmental law through judicial review and an – unrequested – overly restrictive interpretation of the margin of implementation, the decision demands the authors of this article to analyse closely why “wide access of justice” (Art. 10a (3) of the Directive) could mean ‘unrestricted access’ for NGOs and why it does and should not. The authors also take a closer look at the consequences for (German) procedural law.