Pace Environmental Law Review

Nonhuman Rights to Personhood

Steven M. Wise — Tue, 11 Jun 2013 09:07:21 PDT

2012 Dyson Distinguished Lecture, delivered April 26, 2012 at Pace Law School. Introduction by Prof. David N. Cassuto. Video available here.

Response to New York’s Proposed Solar Renewable Energy Market: Lessons Learned from Other States’ SREC Markets and Recommendations in Moving Forward

Joe Naroditsky — Tue, 11 Jun 2013 09:07:20 PDT

Response to comment by Jesse Glickstein.

New York’s Proposed Solar Renewable Energy Market: Lessons Learned From Other States’ SREC Markets and Recommendations in Moving Forward

Jesse Glickstein — Tue, 11 Jun 2013 09:07:18 PDT

This paper presents analysis of eight states that currently have operating solar renewable energy credit markets as part of their state’s renewable portfolio system, in order to make recommendations as to how the New York legislature should amend the pending legislation based on lessons learned from those other states. In Part II, the different SREC markets that have been implemented in different states throughout the United States are examined. In Part III, the different issues that varying SREC markets have encountered will be discussed, and several possible explanations as to the causes of these issues are presented. In Part IV, recommendations are set forth for lawmakers in New York in how to create a viable SREC market while using lessons learned from other states in order to avoid many of the issues they have encountered. Lastly, the future outlook for a viable SREC market in New York is summarized.

Denial of Access to the Lloyd Aquifer: The Impossibility of Overcoming the Lloyd Moratorium

Krista M. Tenney — Tue, 11 Jun 2013 09:07:17 PDT

This article will discuss the Lloyd Moratorium as it exists today. Section two of this article discusses the geological framework, hydrogeology, pumpage, and saltwater intrusion of the Long Island Aquifer System. Section three discusses the history, development, and agency interpretation of the moratorium. Section four analyzes the likelihood of a community being granted a permit to drill a new well and explores the possibility of a particular community on Long Island with a contaminated aquifer obtaining a permit to drill into the Lloyd Aquifer. Section five concludes by proposing that the New York State Department of Environmental Conservation should promulgate regulations that provide a clear interpretation of the moratorium’s conditions.

The Chinese Legal Tradition as a Cultural Constraint on the Westernization of Chinese Environmental Law and Policy: Toward a Chinese Environmental Law and Policy Regime with More Chinese Characteristics

Paul A. Barresi — Tue, 11 Jun 2013 09:07:15 PDT

This Article argues that the Chinese legal tradition is essentially a Confucian legal tradition, and that its Confucian attributes significantly constrain the effectiveness of the Western-style environmental laws enacted by the PRC in recent decades. Part I explores the emergence of a Confucian legal tradition in China and its impact on Chinese legal culture before the founding of the PRC. Part II highlights some of the impacts of this tradition on the Chinese legal system during the same period. Part III makes a case for the endurance of the Confucian essence of this legal tradition in the PRC itself, and highlights its implications for the effectiveness of the PRC’s Western-style environmental laws. This Article concludes with a few preliminary strategic suggestions for making the PRC’s environmental law and policy regime more effective by aligning it more closely with the Confucian essence of the Chinese legal tradition.

A Mindful Environmental Jurisprudence?: Speculations on the Application of Gandhi’s Thought to MCWC v. Nestlé

Nehal A. Patel et al. — Tue, 11 Jun 2013 09:07:14 PDT

We attempt to engage modern legal reasoning with Gandhi’s thought. We hope to speculate on what jurisprudence would look like if it were more mindful of the concepts central to Gandhi’s thought. By using Gandhi as an intellectual anchor, we hope to take a step toward creating a more “mindful jurisprudence” that implicitly incorporates into its reasoning the needs of environmental stewardship, disempowered populations, and the poverty-stricken. Because Gandhi’s thought has been discussed at length in environmental justice campaigns, we begin this effort by examining the relationship between environmental law and Gandhi’s thought. Given Gandhi’s commentaries on exploitative and oppressive social relationships, we focus on the intersections of law, environment, and economy.

We use the recent suit, Michigan Citizens for Water Conservation v. Nestlé Waters North America, Inc. (MCWC), as a case study to which we apply themes from Gandhi’s thought.

Applying Gandhi’s thought to MCWC is useful for two reasons. First, MCWC contains several core legal doctrines that appear regularly in environmental cases (and in case law more broadly). As a result, our applications of Gandhi’s thought directly apply to other environmental cases. Second, the case involves a defendant-corporation’s encroachment onto a stream used by local plaintiff-civilians. Environmental justice campaigns often involve similar factual circumstances in which local people resist large outsider organizations. Therefore, using Gandhi’s thought, we examine the legal reasoning in MCWC to identify taken-for-granted assumptions about environment and society that favor outside parties over local residents.

The Liberal Limits of Environmental Law: A Green Legal Critique

Michael M'Gonigle et al. — Tue, 11 Jun 2013 09:07:13 PDT

The field of environmental law embodies a deep contradiction—it is a product of the state, yet the state is the primary agent of development. This contradiction infuses state-supported resource regimes (energy, forestry, agriculture, water use) that have long been agents of environmental erosion while they have remained resistant to progressive reform. It also underpins the theoretical framework for proposed reforms today, ecological modernization. The result is that environmental law extends, rather than resolves, society’s underlying environmental “problematic.” This can now be seen in institutional responses to climate change and the “green economy.” To address this situation, the authors apply a critical new approach—green legal theory (GLT)—to analyze these historical resource regimes and today’s emerging issues. GLT does so by expanding the conception of law to address the “constitutive” or “regulatory” effects of those “system dynamics” that set the larger economic, political, and cultural conditions for social/environmental relations. In this task, GLT aims to help move “legal” analysis into the pursuit of the systemic re-formations that exist beyond the liberal limits of environmental law.

Only One Mekong: Developing Transboundary EIA Procedures of Mekong River Basin

Jian Ke et al. — Tue, 11 Jun 2013 09:07:11 PDT

China shares borders with fourteen countries and has many international rivers. In most cases, China is an upstream state. Over the past years, increasing international disputes concerning international rivers have occurred between China and other riparian states, such as China’s dam construction on the upper Mekong River and the Songhua River pollution accident. In particular, with the ongoing dam construction on the upstream of Mekong in China, its potential environmental impact on the other Mekong countries is highly profiled. At the time of writing, five dams are already completed and two are in the final stage of construction or getting formal approval. In response to environmental problems, particularly the controversial issue of Mekong mainstream dam construction, this paper will take a procedural perspective and focus on developing the mechanism of transboundary environmental impact assessment (TEIA) in the MRB. Specifically, issues like the significance of establishing TEIA and how to tailor and comprehend TEIA in the MRB context will be addressed in detail.

Cyanide, Mining, and the Environment

Jan G. Laitos — Tue, 11 Jun 2013 09:07:09 PDT

The Article is not intended to serve as an advocacy polemic for the cyanide-using mining industry. Rather, its objective is two-fold: (1) It seeks to expose the scientific and environmental reality of cyanide use in mining operations; and (2) It will try to draw from the case of mining-and-cyanide use some larger lessons about regulatory behavior, and the downside of over-regulation when confronting the phenomenon of risk amplification. Part II considers why cyanide is so ubiquitous in hard rock mining operations in America and in other countries, and why there is no effective substitute for it as a substance to leach out gold, copper, and other valuable hard rock minerals. Part III is an examination of the scientific and ecological reality of cyanide spills in nature. Part III reveals how, as a matter of science and chemistry, cyanide is usually, and counter-intuitively, non-toxic to environmental goods and wildlife. Part IV summarizes the true extent of the mining accidents and incidents that have released cyanide into the natural environment, and the very “human” reasons for these spills. Part IV also points out why, despite the fact that cyanide spills are preventable, and despite cyanide’s undeserved reputation as a killer-of-environmental goods, there have been flat bans and harsh regulatory limitations on its use.

Problems for Pale Male: An Analysis of the U.S. Fish and Wildlife Service’s Nest Destruction Policy

Brent Plater et al. — Tue, 11 Jun 2013 09:07:08 PDT

During the 2004 holiday season, Pale Male, New York City’s celebrated and world-renowned red-tailed hawk, had his nest deliberately destroyed. The nest was approximately 400-pounds and was built over several years. Almost immediately, this act of destruction was met with popular uproar among his many fans throughout the world. This tragic story could easily have been avoided if the United States Fish and Wildlife Service (Service) had correctly carried out its duties under the Migratory Bird Treaty Act (MBTA). What happened to Pale Male years ago is still a possibility today because the Service’s policy remains the same. This article addresses these issues and urges the Service to comply with the MBTA by demanding that individuals receive permits to destroy any bird nest before the destruction occurs.

The Principle of Resilience

Lia Helena Monteiro de Lima Demange — Tue, 23 Apr 2013 12:17:09 PDT

This article seeks to develop the role law could play in contributing to the achievement of ecosystem resilience. Therefore, adopting Aldo Leopold’s view of conservation, by which the first step should be to understand nature, this article will begin with a brief explanation of the ecological background to the concept of ecosystem resilience. Next, the article will consider Aldo Leopold’s land ethic in order to discuss the values we should look for when implementing conservation for resilience. Regarding those values and concepts, the following part of the article will be dedicated to consolidating and contextualizing the legal principle.

In order to carry out a more detailed analysis about how the principle of resilience can be pursued in the application of the law, this article will focus on certain sectors of environmental law and policy making. Those sectors are: adaptive governance, adaptive management, environmental impact assessment, land use and climate change adaptation, and market mechanisms for conserving ecosystem services. The article will be based on cases from different parts of the world. As the adoption of the concept of resilience by law seems to be incipient in the jurisdictions of most countries, such case studies will be helpful to any jurisdiction in the world where this concept is still not effective.

The Legal Profession’s Critical Role in Systems-Level Bioenergy Decision-Making

Jody M. Endres — Tue, 23 Apr 2013 12:17:06 PDT

Law as a discipline thus must seek greater prominence in the raging debates on the efficacy of modeling as a bioenergy policy driver. To ultimately determine law’s proper role, Part II of my article first assesses the universe of key economic and lifecycle models used in current bioenergy policy initiatives, as well as the models deployed in general environmental decision-making that could affect the siting and operation of biomass cropping and bioenergy facilities. Part III then dissects these models to uncover the multiple ways in which law can improve models both structurally and procedurally to achieve greater accuracy. The conclusion speculates that scientific modelers likely have ignored law’s valuable place at the table because of the value judgments inherent in policymaking, particularly under scientific uncertainty.

International Deployment of Microbial Pest Control Agents: Falling Between the Cracks of the Convention on Biological Diversity and the Cartagena Biosafety Protocol?

Guy R. Knudsen — Tue, 23 Apr 2013 12:17:05 PDT

This paper considers one tangled web of conflicting developments. It involves the popular desire to replace chemical pesticides with more “natural” biological control strategies, plus a slowly emerging awareness of a less benign side to microbial pest control agents, based on their potential invasiveness and sometimes striking similarities to agents of bioterrorism and biological warfare. This desire, however, is overshadowed by concerns about the environmental release of genetically engineered organisms. I argue that as some of the concerns about ecological diversity, as captured by the Convention on Biodiversity, were channeled into the subsequent Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol) with its emphasis entirely on products of biotechnology, microbial pest control agents have “fallen through the cracks” of international environmental law.

Carbon Tax with Reinvestment Trumps Cap-and-Trade

Stephen Sewalk — Tue, 23 Apr 2013 12:17:04 PDT

Part I of this paper reviews the current opinion surrounding carbon tax proposals as they appear in the literature. Part II will provide an overview of the current cap-and-trade proposals. Part III will introduce a carbon tax with reinvestment. Part IV of this article reviews the leading proposals arguing that a carbon tax is superior to cap-and-trade. And finally, for Part V explains why a carbon tax with reinvestment trumps cap-and-trade.

Harmony with Nature and Genetically Modified Seeds: A Contradictory Concept in the United States and Brazil?

Heather Leibowitz — Tue, 23 Apr 2013 12:17:01 PDT

Looking at the differing regulatory frameworks for genetically modified organisms (GMOs) in the United States and Brazil, this Article will help demonstrate how a lack of scientifically objective standards has allowed regulatory agencies to circumvent environmentally protective and sustainable policies. Additionally, this analysis will help illuminate what corrective steps can be taken.

Big Things in Small Packages: Evaluating the City of Berkeley’s Nanotechnology Ordinance Effectiveness as a Model of Targeted Transparency

Drew Lerer — Tue, 23 Apr 2013 12:17:00 PDT

The purpose of this article is threefold. First, a practical ideal model of a nanotechnology disclosure policy is developed based on relevant literature. Second, the City of Berkeley’s Engineered Nanoparticle Disclosure Ordinance (BENDO) is assessed using the practical ideal type characteristics. Finally, recommendations to improve the BENDO are presented based on the assessment.

No Laws in Nanoland: How to Reverse the Trend? The French Example

Nadia Kaddour — Tue, 23 Apr 2013 12:16:58 PDT

This paper will first present an introduction to nanotechnology and its potential environmental, health, and safety (EHS) issues. It will then briefly review the current United States’ situation with regard to nanotechnology regulation before examining the new French regulation on engineered nanomaterial substances, which is a good first step toward a nano-specific legal framework.

Regulatory Concerns and Health/Hazard Risks Associated with Nanotechnology

Louis Theodore et al. — Tue, 23 Apr 2013 12:16:57 PDT

This paper on nanotechnology discusses not only the regulatory concerns but also health risk and hazard assessment. The next section examines present and potentially future regulatory issues. The following two sections review traditional and time tested-methods that the practicing engineer and scientist employ in health and risk analysis assessment—procedures that are also employed in the nanotechnology field today. This paper concludes with a discussion of nanotechnology’s future and other associated concerns.

The Case for an Information-Forcing Regulatory Definition of “Nanomaterials”

David A. Dana — Tue, 23 Apr 2013 12:16:56 PDT

This Article reviews regulatory attempts to define nanomaterials to date, including the European Commission’s definition. It then sets forth and explains why agencies should adopt what I am calling an information-forcing definition of nanomaterials. Nanomaterials implicate the same informational problem as many other substances or practices that are the subject of political and legal debate: that is, we (the public) know enough to know that there are some risks but not enough to specify and assess those risks. We know risks are posed by some kinds of small-scale materials in some contexts, but not enough is known to define the universe of which particular materials pose risk and which do not (or how much risk is posed by those materials that do pose risk). Regulators, therefore, do not know enough to specify the health and environmental risks from nanomaterials with any precision. Regulatory definitions are, therefore, needed that facilitate the production and sharing by industry of information about the small-scale materials they use, why they use them, and what behaviors those materials exhibit that may translate into human health and/or ecological risk. The regulatory definitions should be structured so as not only to force information from industry, but also to force, or at least encourage, agencies not to give in to powerful forces of bureaucratic inertia and stick with regulatory definitions even after emerging science and other public information suggest they are obsolete.

Searching for the Nano-needle in a Green Haystack: Researching the Environmental, Health, and Safety Ramifications of Nanotechnology

Taryn L. Rucinski — Tue, 23 Apr 2013 12:16:54 PDT

This Article will attempt to serve as a primer by demystifying the process of how to efficiently locate resources discussing the environmental health and safety (EHS) impacts of nanotechnology in the United States (U.S.). Part I of this Article begins with an examination of basic strategies for conducting research in the EHS nanotech field. Part II focuses on traditional legal resources such as texts, treatises, encyclopedias, as well as law review and journal articles. Part III examines such non-legal resources as reports, scientific studies, internet sites and other current awareness services. This last section is followed by a brief conclusion.