Catalog: Digital Commons at Pace - New Repository Articles
Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking—risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of fracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating fracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.
Extended written remarks of the oral panel presentation by Professor Nicholas A. Robinson at the international colloquium in tribute to Ambassador Luiz Alberto Figueiredo do Machado on Rio+20 and Biodiversity: Assessing the Future We Want. Presented as part of the Inaugural Panel, held in the Senate Chamber of Brazil in Brasilia on 26 April 2013 and televised nationally.
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.
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?
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.
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?
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
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.
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.
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.
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
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.
This issue of the Pace Environmental Law Review presents a set of articles to shed new light on those questions in the case of the products of nanotechnology. For comparison, the issue also includes an article on the regulation of genetically modified organisms in agriculture in the United States and Brazil, an early effort to govern the risks of a major new technology.
This article frames environmentally sound innovation in the context of transnational network theory with the goal of setting forth a preliminary framework for international legal policy coherence. I consider how network dynamics can facilitate broad diffusion of environmentally sound technologies, concluding that what appears to be fragmented trade, environment, and human rights regimes are indeed sustainable development building blocks with which to achieve dynamic governance. Collaborative environmentally sound innovation networking may be able to shepherd whole renewable energy sectors across the innovation valley of death and help turn a global responsibility to ramp up green technology into a global initiative to do so.
The oil shocks of the 1970s propelled the search for alternative fuel sources by oil-dependent countries. The United States and Brazil–then the two largest producers and consumers of ethanol in the world – focused intensely on biofuels as a substitute for oil, while other countries – such as Japan and European Union members – focused more on nuclear energy and other methods of power generation. However, from the 1980s onward, climate change emerged as a significant concern. This new focus on climate change revived the discussion about the need for alternative energy sources. In addition, during the 2000s, oil prices spiked anew. Political and social instability in areas of oil abundance, combined with the widespread belief that oil extraction would peak in ten or twenty years and then decline, contributed to this price volatility.
Biofuels, emerged into this turbulent landscape, offering the promise of partially or completely supplanting fossil fuels. This article focuses on the Brazilian experience using ethanol as a substitute for gasoline for motor-vehicle fuel. Part I offers a brief discussion of the nature and role of biofuels. Part II details the development of ethanol regulation in Brazil, from its inception during the era of military dictatorship through the present. Part III discusses the environmental issues and criticisms concerning ethanol production and how they apply to the Brazilian model. Part IV analyzes the Brazilian experience and explains why it would be very difficult or impossible to replicate in the United States. Overall, this article portrays the difficulties and challenges the United States will face in trying to follow the Brazilian model.
This article focuses on small claims arbitration and examines the impact of AT&T Mobility on the legitimacy of the process. Part II of the article describes the Supreme Court’s AT&T Mobility decision, which held that the FAA preempts a California rule that declared a class arbitration waiver in a consumer contract unconscionable. Part III describes the primary features of the two options remaining for the Concepcions—small claims court and small claims arbitration, as well as their perceived advantages and disadvantages. Part IV demonstrates that courts have endorsed simplified arbitration. Part V examines whether simplified arbitration is a fair method of resolving small arbitration claims. Part VI explores other dispute resolution models for resolving small dollar value commercial disputes, including on-line dispute resolution, telephonic arbitration, and a small claims arbitrator. Part VII concludes by urging dispute system designers to consider changing the default mechanism of arbitrating small claims cases from paper or “desk” arbitration to a live hearing before a small claims arbitrator.
This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely outcome of the Fisher case based on past rulings by members of the current Court and predicts that the Court will decide Fisher on very narrow grounds. In Part III, I explore the underpinnings of the postsecondary education admissions process. This section explores the contemporary goals of most institutions' admissions, including their moral sense of providing a compensatory education to groups that previously experienced academic disadvantage, the nature of elitism in education fueled in large part by U.S. News & World Report, and the goal of colleges and universities to admit the most qualified students in the wake of an ever growing volume of applicants. This section concludes that colleges and universities, for both financial and egotistical reasons, are more concerned with their academic reputation than with Constitutional limitations on their admissions policies, and as a result, for the most part, colleges and universities will continue to try to use race as a plus, regardless of any future Supreme Court edict.
Squaring Affirmative Action Admissions Policies with Federal Judicial Guidelines: A Model for the Twenty-First Century
This article will highlight the legal limitations law schools confront when adopting diversity admission policies in light of the new judicial climate that disfavors considering non-traditional race criteria in the admission decision process. Part I highlights the difficulty law schools face when trying to admit a fully diverse class under the traditional application process. Part II discusses the judicial response to voluntary diversity admission policies and other race-based preference policies and defines the appropriate standard for court review. Part III proposes a model diversity admission policy. Part IV analyzes this model policy under the Court's strict scrutiny test.