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Topic: Environmental Law

NEPA’s Footprint: Information Disclosure as a Quasi-Carbon Tax on Agencies

Sarah E. Light | Article

The National Environmental Policy Act’s (NEPA) information-disclosure requirements have the potential to create a quasi-carbon tax on greenhouse gas emissions arising out of major federal actions. By requiring government polluters to expend more resources, both financial and political, on disclosure as project-related emissions increase, NEPA can operate like a carbon tax that forces agencies to internalize negative externalities associated with emissions.

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Louisiana’s Mono Lake: The Public Trust Doctrine and Oil Company Liability for Louisiana’s Vanishing Wetlands

Sam Brandao Tul. L. Rev. Comment

Louisiana’s coastal land is dissolving. As the political branches struggle to address the emergency, the courts may provide an unlooked-for catalyst. Private actions against oil companies are unlikely to play a major role in resolving the coastal crisis because of the scale of the problem. This Comment suggests that an action against a state agency under the public trust doctrine could be the electric shock that galvanizes the political branches into a meaningful response. After briefly discussing the development of the federal public trust doctrine, its application in California, and its culmination in the California case known as Mono Lake, [...]

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Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines

Michael Pappas | Article
This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines. This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of [...]
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Tracing the Origins of Fairly Traceable: The Black Hole of Private Climate Change Litigation

Mary Kathryn Nagle | Article
[O]ur emerging problems of the environment and ecological unbalance are worrisome problems indeed, and I am distressed that our law is so inflexible that we find ourselves helpless procedurally to meet these new problems. – Justice Harry Blackmun
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Breathing Life into the Dead Zone: Can the Federal Common Law of Nuisance Be Used to Control Nonpoint Source Water Pollution?

Endre Szalay | Comment

This Comment posits the argument that the federal common law of nuisance could be used to control agricultural nonpoint source water pollution that causes the environmental problem known as the Gulf of Mexico “Dead Zone.” The primary obstacle to such a suit is that the United States Supreme Court, in two cases dealing with interstate water pollution from point sources, has held that the Clean Water Act entirely displaced the need for the federal common law of nuisance to abate interstate water pollution. However, the United States Court of Appeals for the Second Circuit’s recent decision in Connecticut v. American [...]

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Congressional Consent Under the Compact Clause: Plugging the Leaks in the Regional Greenhouse Gas Initiative

Margaret C. Hupp | Comment

The United States faces a potential turning point in the relationship between state and federal regulation of environmental issues. With the election of President Barack Obama, who has signaled a commitment to taking action in the area of carbon emissions regulation, the national government may step into an arena where the states are already playing, setting up a federalism debate to determine the better actor to enact meaningful and efficient environmental protection. Effectiveness in this area depends on the balance between quick enactment to prevent increased emissions (and further harm) and the comprehensiveness required to address this national and global [...]

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Probabilities, Planning Failures, and Environmental Law

Dave Owen | Article

Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure if their plans will succeed. Decisionmakers therefore must decide how to balance risks of plan failure against the costs of more cautious regulatory approaches. This Article explores and evaluates legal responses to these dilemmas. I find that environmental statutes and regulations use a patchwork of measures to manage these planning uncertainties. Decisions about planning uncertainty are frequently made on an ad hoc, nontransparent basis, and plans with low success odds are common. That [...]

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