Duke Environmental Law & Policy Forum

Insurance Against Catastrophe: Government Stimulation of Insurance Markets for Catastrophic Events

Véronique Bruggeman et al. — Thu, 10 Jan 2013 06:37:19 PST

United States Flood Control Policy: The Incomplete Transition From the Illusion of Total Protection to Risk Management

A. Dan Tarlock — Thu, 10 Jan 2013 06:37:18 PST

The End Game of Deregulation: Myopic Risk Management and The Next Catastrophe

Thomas O. McGarity et al. — Thu, 10 Jan 2013 06:37:17 PST

Disaster Mythology and Availability Cascades

Lisa Grow Sun — Thu, 10 Jan 2013 06:37:16 PST

Disaster Justice: The Geography of Human Capability

Robert R.M. Verchick — Thu, 10 Jan 2013 06:37:15 PST

Introduction: Legal Scholarship, the Disaster Cycle, and the Fukushima Accident

Daniel A. Farber — Thu, 10 Jan 2013 06:37:14 PST

Protecting Pennsylvania’s Three Rivers’ Water Resources from Shale Gas Development Impacts

Jennifer Hayes — Fri, 08 Jun 2012 09:26:48 PDT

Fracturing Regulation Applied

Hannah Wiseman — Fri, 08 Jun 2012 09:26:47 PDT

Factual Causation: The Missing Link in Hydraulic Fracture—Groundwater Contamination Litigation

Jeffrey C. King et al. — Fri, 08 Jun 2012 09:26:46 PDT

Can Volunteers Pick Up the Slack? Efforts to Remedy Knowledge Gaps About the Watershed Impacts of Marcellus Shale Gas Development

Abby J. Kinchy et al. — Fri, 08 Jun 2012 09:26:45 PDT

Considering Shale Gas Extraction in North Carolina: Lessons from Other States

Sarah K. Adair et al. — Fri, 08 Jun 2012 09:26:44 PDT

Environmental and Social Implications of Hydraulic Fracturing and Gas Drilling in the United States: An Integrative Workshop for the Evaluation of the State of Science and Policy

Workshop Report — Fri, 08 Jun 2012 09:26:43 PDT

Where the Twain Shall Meet: Standing and Remedy in Alaska Center for the Environment v. Browner

Carl E. Bruch — Wed, 06 Jun 2012 10:21:54 PDT

In 1994, the Ninth Circuit affirmed standing for citizens to sue to compel the EPA Administrator to undertake a statewide TMDL program. Although the citizens had standing for only some of the water-quality-limited waters in Alaska, the court held that the underlying cause of action was the EPA's failure to initiate the TMDL process for Alaska. This Note proposes that the court improperly reasoned its way to the correct holding. Like the EPA, the court confused standing to sue with the ultimate scope of the remedy. This Note proposes a three-step analysis to consider issues of standing and remedy. The first step is to determine the scope of the underlying action by analyzing the legal duty that forms the basis for the claim. This scoping action is critical since it serves as the referent for the next two steps. The second step is to determine whether the plaintiff has standing with respect to the underlying action. If the court decides on the merits of the case that the plaintiff should prevail, the third step is to determine the appropriate remedy. In this step, the court starts with the underlying cause of action and incorporates other factors as appropriate. This three-step analysis decouples the standing and remedy analyses and should lead to better reasoned opinions. I. INTRODUCTION In Alaska Center for the Environment v. Browner (ACE III), 1 the Ninth Circuit distinguished between standing to sue and the ultimate scope of the remedy. The court affirmed standing for a group ...

Halting Neotropical Deforestation: Do the Forest Principles Have What It Takes?

Matthew B. Royer — Wed, 06 Jun 2012 10:21:52 PDT

INTRODUCTION I crashed into the thick secondary growth, stopping suddenly to duck a certain branch in my path: a fat black bullet ant crawled along it with indifference, an attitude that would have quickly changed had I brushed up against him. I headed toward the large patch of Heliconia just to the right. We had earlier mapped out the clump, and finding it to contain seventeen flower clusters, it was one of the prize patches in the study plot. I took my spot ten paces from the outer clusters, started my stop watch, and waited with field book in hand. The Birds of Paradise were dripping nectar from their red fingertips. With such a gold mine, I did not have to wait long for a hummingbird. Like an Evinrude-powered flat bottom whizzing up a winding lagoon, the bird's sound reached me before I saw him. He appeared from the back of the patch, taking a drink here, then there, then here again, then at some other spot, then there again and back to here. He did not sit and sip for long at each spot, but he did pause long enough for me to see him gleam green and deep violet. He was a red-footed plumeleteer, emerald green on the head, changing to dark purple through his body and on to his tail. His feet and straight bill were distinctively red. Without a doubt he owned this lucrative Heliconia patch. But then from my right came another whir. A ...

Crossroads for Federal Enforcement of the Clean Air Act

Joyce M. Martin — Wed, 06 Jun 2012 10:21:50 PDT

A major goal of the Clean Air Act 1 (hereinafter CAA or "Act") is to "protect and enhance the quality of the Nation's air resources." 2 The Act uses a two tiered approach to accomplish this goal. First, the Act focuses on the national attainment and maintenance of National Ambient Air Quality Standards (NAAQS) for "criteria" pollutants, 3 and second, the Act also sets specific standards for known hazardous air pollutants (HAPS) 4 . The Act emphasizes throughout its text that air quality problems are national in scope and often cross state boundaries. 5 Congress clearly intended that enforcement of programs to improve air quality be a cooperative effort of state and federal governments. 6 Courts also have recognized for decades the necessity of a federal enforcement presence in the effort to improve air quality nationally. As the D.C. Circuit Court noted, EPA ... is the ultimate supervisor, responsible for approving state plans and for stepping in, should a state fail to develop or to enforce an acceptable plan... EPA is to ensure national uniformity where needed, for example, to ensure that states do not compete unfairly for industry by offering air quality standards that are too lax to bring about needed improvement in the air we breathe. 7 An important component of many federal environmental laws is federal enforceability. The federal enforceability 8 of state air quality limitations or controls on sources requires that the Administrator of the EPA, not solely state or local authorities, enforce emission ...

Reengineering RCRA: The Command Control Requirements of the Waste Disposal Paradigm of Subtitle C and the Act’s Objective of Fostering Recycling-Rethinking the Definition of Solid Waste, Again

R. Michael Sweeney — Wed, 06 Jun 2012 10:21:48 PDT

INTRODUCTION In 1992, the United States Environmental Protection Agency (EPA) created the Definition of Solid Waste Task Force (Task Force). 1 Specifically, the Task Force was created to eliminate perceived disincentives to recycling, eliminate regulatory loopholes for those recycling practices presenting risks to health and the environment, and clarify the definition of solid waste. 2 In September, 1994, the Task Force published a report titled Reengineering RCRA for Recycling: Definition of Solid Waste Task Force: Report and Recommendations (Reengineering RCRA). 3 This report advocated a new national regulatory system for recycling. 4 Consistent with past practice, the proposed system is to be administered by the EPA through jurisdiction vested in it by the Resource Conservation and Recovery Act of 1976 (RCRA), 5 as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) 6 . 7 The development of a regulatory system for the recycling of industrial, commercial, and municipal solid wastes is currently among the most significant issues in the environmental policy arena. 8 While the development of other solid waste policies (such as the shift to producer responsibility and the development of market forces to encourage waste reduction and reuse) are increasingly being addressed on a global scale, RCRA recycling is a distinctly national issue. 9 The focus of this article is to develop a regulatory framework for a new national recycling system. The discussion contained herein advocates a regulatory system that moves away from perceptions of recycling as a subset of ...

The Regulation of Hazardous Substances in Mexican Law

Carl E. Koller Lucio — Wed, 06 Jun 2012 10:21:39 PDT

Introduction Unlike U.S. environmental legislation, which governs different environmental media and was instituted through various congressional Acts, 1 the current Mexican environmental legislation, implemented in 1988, covers the principal environmental media in one law. 2 This one law contains most of the implementation and enforcement mechanisms including the regulation of hazardous substances. There has been much debate and concern on both sides of the United States-Mexican border regarding Mexico's ability to strictly enforce its hazardous substance regulations. Furthermore, the North American Free Trade Agreement, which established an international Commission on Environmental Quality, will influence future use of trade laws to uphold environmental standards. Because of the considerable international attention focused on Mexico's environmental policy and its enforcement, this Note presents an overview of Mexico's regulation of hazardous substances as well as the legal mechanisms generally available to deal with problems arising from the use or possession of hazardous substances. Where possible, relevant insights will be offered regarding similar U.S. laws, as will discussion of the limits or potential flaws in the Mexican regulations. Part I provides an overview of Mexico's environmental policy and the legal instruments available to implement its regulations. Part II outlines the specific provisions in Mexican law that regulate hazardous substances. Part III discusses the available enforcement mechanisms, and Part IV analyzes the prospects for the use of toxic torts litigation in Mexico. I. Overview of the Mexican Environmental Legal Framework Environmental law in Mexico has been characterized as health-based, standard-setting law 3 and ...

C & A Carbone v. Clarkstown: A Wake-Up Call for the Dormant Commerce Clause

Rachel D. Baker — Wed, 06 Jun 2012 10:21:37 PDT

Introduction Garbage collection, transportation, and disposal have historically been the responsibility of individual towns and cities in the United States. 1 However, stringent environmental regulations, declining landfill capacity, and the implementation of costly source reduction and recycling programs have greatly increased the costs of waste management borne by towns. 2 For the past two decades, many local governments have relied on "flow control" ordinances to finance their solid waste management activities. 3 These ordinances designate where municipal solid waste generated within the community must be managed, stored, or disposed. 4 Recently, in C & A Carbone, Inc. v. Town of Clarkstown, 5 the U.S. Supreme Court ruled that such ordinances violate the Commerce Clause of the U.S. Constitution. In this decision, the Court misapplied the dormant Commerce Clause doctrine and thereby jeopardized the financial stability of local governments that have relied on flow control ordinances to finance their waste management programs. Flow control ordinances dictate where a community's garbage must be processed or disposed. 6 By enabling a local government to control its garbage, flow control helps the town meet its environmental goals, such as ensuring that recyclable materials are properly separated. 7 Typically, garbage processing and disposal facilities charge a fee per ton of garbage handled, known as a "tipping" fee. 8 By requiring all municipal waste to be shipped to a designated facility, flow control guarantees a stream of revenue to that facility. 9 Local governments have relied on this revenue to fund ...

Recipe for Reauthorization of the Endangered Species Act

William J. Snape III et al. — Wed, 06 Jun 2012 10:21:35 PDT

Combatting the Exotic Species Invasion: The Role of Tort Liability

Daniel P. Larsen — Wed, 06 Jun 2012 10:21:33 PDT

Introduction Present-day island and continental ecosystems began evolving millions of years before the human species appeared. These ecosystems became distinct as they developed in isolation from one another, due to natural barriers between them. Within the last 150 years, however, technology has enabled humanity to easily bridge continents and reach secluded islands. As a result, modern human vectors of transport are introducing exotic species 1 into ecosystems that have evolved autonomously for millions of years. Often, these non-native, immigrant species impact wildlife and ecosystem interactions so severely that they may be thought of as deadly "pollutants." Traditionally, environmental laws have only been concerned with human management, or mismanagement, of inanimate substances. 2 Only recently have environmental laws begun to address the exotic species problem. Thus far, however, modern federal legislation enacted in response to damage caused by exotic species inadequately confronts the threat. A viable solution to encourage transporting behavior which prevents exotic introductions may be based upon common law public nuisance and strict liability. Tort liability provides more flexibility to adapt to changing circumstances than rigid statutes and allows the transporter to choose the most efficient method to avoid liability. Therefore, adaptable tort principles may represent the best means by which our most valuable resources, our ecosystems, can be protected from destructive exotic species. This Article advocates the use of liability-based principles from nuisance law to combat the tide of exotic introductions. Section I details the destructive power of some exotic species on non-native ecosystems and ...