Publisher: Pace University   (Total: 4 journals)   [Sort by number of followers]

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Pace Environmental Law Review     Open Access   (Followers: 4)
Pace Intellectual Property, Sports & Entertainment Law Forum     Open Access   (Followers: 4)
Pace Intl. Law Review     Open Access   (Followers: 7)
Pace Law Review     Open Access   (Followers: 3)
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Pace Environmental Law Review
Number of Followers: 4  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0738-6206
Published by Pace University Homepage  [4 journals]
  • Green Crimes in the Empire State: Analyzing the Criminal Enforcement of
           Environmental Law in New York

    • Authors: Joshua Ozymy et al.
      Abstract: Ensuring compliance with federal and state environmental laws and deterring future offenses can require the application of criminal enforcement tools. Yet we have a limited understanding of how the criminal enforcement of environmental laws has progressed historically in The Empire State. To explore this phenomenon, we undertake content analysis of federal prosecution summaries for all environmental crime prosecutions stemming from U.S. Environmental Protection Agency criminal investigations from 1983 to 2019. We explore which federal environmental laws were violated, determine which charging statutes were used, analyze sentencing patterns, and illustrate the broader themes that emerge in such prosecutions over 37 years. Our findings show that total penalties assessed to all defendants included some $264 million in monetary penalties, almost 7,000 months of probation, and 4,757 months of incarceration. We find that 26 percent of prosecutions center on air pollution crimes, 18 percent on water pollution crimes, 12 percent on hazardous waste crimes, and 18 percent on state-level offenses. We conclude with forward-looking ways to improve the criminal enforcement of environmental laws, including enhancing resources, community policing, and public salience.
      PubDate: Sun, 02 Oct 2022 18:30:22 PDT
  • Cumulative Impact Analysis in NEPA Climate Assessments

    • Authors: Fred Mauhs
      Abstract: This article argues that CI analysis is a critical tool for addressing global warming. This is because the largest anthropogenic sources of greenhouse gas (“GHG”) emissions in the U.S. each contributes a vanishingly small portion of global GHG emissions, which alone cannot rise to NEPA’s threshold of “significance” requiring a “detailed statement…on the environmental impact of the proposed action,”i.e., an environmental impact statement (EIS). Yet there is no pollution today in greater need of assessment and understanding than GHG emissions, given the urgency of the impending catastrophe that global warming could mean for our planet.
      PubDate: Sun, 02 Oct 2022 18:30:19 PDT
  • A PACT for the Future: Improving Animal Protection Legislation for Captive

    • Authors: Emily Lively
      Abstract: Using SeaWorld as a case study, this Note will argue that existing federal and state legislation fails to protect captive orcas from cruel and harmful treatment while in captivity.Part I of this Note will address the gaps in federal and state animal welfare and cruelty legislation relevant to captive orcas. Part II will discuss the enactment of the Preventing Animal Cruelty and Torture Act of 2019 (“PACT Act”), the first federal animal cruelty statute. Part III will use SeaWorld as a case study to test the effectiveness of the PACT Act in criminalizing animal cruelty at the federal level. Finally, Part IV will discuss ways in which Congress could amend the PACT Act or use it as a model for a more comprehensive federal animal cruelty statute and include protections for animals suffering cruel and inhumane treatment in captivity.
      PubDate: Sun, 02 Oct 2022 18:30:17 PDT
  • What Lies Beneath: USMCA Chapter 24 and Sub-National Governance of
           Environmental Issues

    • Authors: Alexandra R. Harrington
      Abstract: This article examines the sub-national governance issues existing in the USMCA through the lens of environmental law and regulation in each of the three State Parties. It asserts that the governance gaps created by failing to include the terms of sub-national laws in the express parameters of the USMCA are significant and can pose a challenge to the successful implementation of the Agreement now and into the future. The decision to focus on the USMCA regime was made because of the recent timing of its negotiation, the many efforts made by all sides to incorporate critical non-trade issues into the main text of the Agreement, and the federal governance structures used in all three State Parties. In the USMCA context, environmental issues represent both an emerging area of law and policy, notably in the context of pollution and climate change responses, and one which was carried over from NAFTA.
      PubDate: Sun, 02 Oct 2022 18:30:14 PDT
  • Pre-Merits Vacatur: An Efficient, Equitable, and Environmentally Sound

    • Authors: Stuart Gillespie
      Abstract: Federal agencies are increasingly requesting voluntary remands of challenged rules, thereby circumventing judicial review, and avoiding ever having to defend the merits of those rules. Courts routinely grant these extraordinary requests, often under the guise of saving judicial resources and giving agencies a second chance to reconsider. But voluntary remands come at a steep cost, particularly in the arena of environmental litigation. There, voluntary remands not only deprive litigants of their day in court, but can also subject them (and the broader public) to unlawful and inadequate rules that are causing serious environmental harm.Courts have long guarded against the inequitable consequences of voluntary remands by simultaneously vacating the challenged rules, even prior to a conclusive determination on the merits. That remedy—also known as pre-merits vacatur—falls well within the court’s broad equitable authority. It has, however, come under assault in recent years, particularly from industry groups who rarely profit from the court’s equitable discretion. So too, the Biden Administration has questioned the court’s ability to vacate Trump-era environmental regulations on voluntary remand, thereby prolonging those rules’ adverse environmental impacts. Some legal commentators have assumed, with little or no analysis, that court’s lack the authority to order pre-merits vacatur.This article sets the record straight and provides a complete defense of the court’s authority to order pre-merits vacatur as a condition of voluntary remand. The article also refutes misplaced attempts to strip courts of that remedial power, which provides a crucial backstop against agencies’ increasing use of voluntary remands. Finally, the article provides a compelling policy justification for remanding and vacating insufficiently protective environmental rules, as demonstrated by two recent cases that vacated and remanded Trump-era rules that eliminated long-standing Clean Water Act protections. In both cases, pre-merits vacatur provided an efficient, equitable, and environmentally sound remedy
      PubDate: Sun, 02 Oct 2022 18:30:11 PDT
  • Federal Historic Preservation's "Place" in Property Theory

    • Authors: Sam W. Gieryn
      Abstract: Progressive Property Theory scholars often point to historic preservation as an example of how property, itself, imposes an obligatory use. A historic structure’s public benefit justifies restrictions in available uses. To date, however, Progressive Property Theory has considered historic preservation only as it is applied in state and local regimes, forgoing an analysis of the federal structure under the National Historic Preservation Act. This article establishes a synergy between the underlying principles of Progressive Property Theory and federal historic preservation and suggests that federal historic preservation’s identification and incentivization structures model a process that could move Progressive Property Theory toward wider applications.Part I of this article explains the similarities between Progressive Property Theory and federal historic preservation. Using explicit textual comparisons between the foundational article on progressive theory (“A Statement of Progressive Property”) and the “purpose” section of the National Historic Preservation Act, this section demonstrates that federal historic preservation provides a model for putting progressive theory into practice. Part II differentiates state law and local historic preservation ordinances from federal law. Federal and local preservation regimes are commonly misunderstood to imply similar property restrictions.Through an explanation of legal differences between programs, the discussion highlights the limitations of focusing Progressive Property Theory on local preservation. Lastly, Part III considers the implications of federal historic preservation structures for diverse social justice outcomes as part of an argument for more frequent applications of Progressive Property Theory in conflicts over property. As a case in point, this final part describes an identification and incentivization regime found in federal historic preservation structures—one that mirrors the principles of Progressive Property Theory — and shows how it may usefully be applied to issues of affordable housing or open space conservation.
      PubDate: Sun, 02 Oct 2022 18:30:09 PDT
  • Movement Lawyering in the Time of the Climate Crisis

    • Authors: Camila Bustos
      Abstract: While climate litigation has emerged as a tool to tackle rising emissions and its devastating consequences, climate litigation as a strategy and movement has yet to be thoroughly analyzed through the lens of movement lawyering. Thus, this paper seeks to draw from existing literature on movement lawyering to explore the relationship between climate litigation and movement lawyering principles, addressing separate yet related questions: What does it mean to be a movement lawyer working on climate change' How do principles of climate justice shape movement lawyering and thus, climate litigation' How do lawyers think about accountability to their clients and the broader climate movement' What, if any, are the implications of having climate change litigation that is not grounded on a movement lawyering model'
      PubDate: Sun, 02 Oct 2022 18:30:06 PDT
  • Silent Spring Revisited – Is it Time to Ban Lead' An Argument for a
           Federal Ban of the Use of Lead Ammunition for Hunting Game Pursuant to the
           Endangered Species Act

    • Authors: Jaclyn McBain Cohen
      Abstract: This note will explore EPA’s authority under the Endangered Species Act (“ESA”) to promulgate regulations banning the use of lead ammunition for any purpose. Section II discusses the impact of lead on the environment and wildlife and demonstrates how even small amounts of lead discharged into the environment through hunting practices can have lethal effects on wildlife, especially scavengers, such as the California condor and the grizzly bear. Section III discusses the current regulations that exist to control the discharge of lead into the environment from the use of other common substances, such as paint and gasoline, demonstrating that the federal government has recognized the toxic effect of lead and has taken steps to eliminate the presence of lead in the natural environment. Then, Section IV discusses how the federal government can leverage the Endangered Species Act to enact a complete prohibition of the use of lead ammunition and how the Act might even mandate such a prohibition based on an interpretation of § 9, which prohibits the “taking” of endangered species. Section V provides a model state statute to demonstrate the positive impact a largescale ban on the use of lead ammunition can have on wildlife populations, provided that sufficient monitoring and enforcement practices are applied. Then, Section VI discusses the hurdles regulations restricting the use of lead ammunition face, such as lobbying efforts by opposing groups, including the National Rifle Association (“NRA”), despite the overall necessity and positive impact of a nationwide ban on the use of lead ammunition and the lack of evidence demonstrating any negative impact a regulation would have on hunters. Finally, Section VII discusses alternatives to lead ammunition for hunting purposes, demonstrating that alternatives are not only widely available, but are also just as practical and cost effective as bullets composed of lead.
      PubDate: Sun, 02 Oct 2022 18:30:04 PDT
  • Hydrofluorocarbons, Leaky Car Air Conditioners, and Revoked Waivers: The
           Question of State-level Regulation of Climate Change in the Trump Era

    • Authors: Connor Hilbie
      PubDate: Tue, 15 Jun 2021 19:32:37 PDT
  • Ancestral Comprehensions for a Policy for the Future of the Earth: The
           Narrative of the South American Andes in the Face of the Global Climate

    • Authors: Erick Pajares G. et al.
      PubDate: Tue, 15 Jun 2021 19:32:34 PDT
  • Addressing Correlations Between Gender-Based Violence and Climate Change:
           An Expanded Role for International Climate Change Law and Education for
           Sustainable Development

    • Authors: Achinthi C. Vithanage
      PubDate: Tue, 15 Jun 2021 19:32:31 PDT
  • Exploring Climate Framework Laws and The Future of Climate Action

    • Authors: Jennifer Huang
      Abstract: Every country in the world now has at least one law or policy to address climate change; these laws vary widely in type, scope, and ambition. Although scholarship on the many types and levels of effectiveness of enacted climate legislation is still growing, legal experts are taking note of a recent trend in the adoption of formal climate legislation that is economy-wide or cross-sectoral in scope, sets out both a broad and long-term direction for climate policy, and ensures some measure of accountability for the executive branch. In the absence of a commonly agreed definition, this article will loosely define criteria for these “climate framework laws.”This article identifies several countries that have adopted climate framework laws of this type: The United Kingdom, Mexico, New Zealand, and Denmark. These countries form a small case set from which to compare elements. From existing scholarship, this article draws on what lessons can be learned from their implementation. Whether the law is new or two decades old, each faces particular challenges and shortcomings. Climate framework laws create new risks but also incur a number of benefits that may be unique to them. This article examines the relationship between climate framework laws and the Paris Agreement, as well as implications for climate litigation. Finally, the article touches on the future of climate framework laws in other countries.
      PubDate: Tue, 15 Jun 2021 19:32:28 PDT
  • An Instrumental Perspective on Power-to-Gas, Hydrogen, and a Spotlight on
           New York’s Emerging Climate and Energy Policy

    • Authors: Tade Oyewunmi
      PubDate: Tue, 15 Jun 2021 19:32:26 PDT
  • The Carbon Storage Future of Public Lands

    • Authors: Tara Righetti et al.
      Abstract: To meet the climate and energy goals set forth by the Biden Administration and the Paris Agreement, the United States must dramatically reduce carbon emissions. Use of public lands for carbon dioxide removal activities, including carbon capture, utilization, and storage (CCUS), has the potential to advance carbon reduction goals and concurrently provide economic revitalization opportunities to communities dependent on fossil industries. Current federal law presents numerous challenges and opportunities associated with utilization of federal pore space for CCUS. Although federal grant programs and tax incentives encourage deployment of CCUS technologies, legal and land-management issues related to public lands have received comparatively little legislative or agency attention. This essay seeks to bring attention to land-management aspects of geologic storage and to broaden conversations regarding CCUS technology deployment on federal lands. The authors identify opportunities for courts, agencies, and Congress to address uncertainties related to federal pore space and promote cooperation and coordination with state agencies.
      PubDate: Tue, 15 Jun 2021 19:32:23 PDT
  • Unveiling the “Trojan Horses” of Gentrification: Studies of Legal
           Strategies to Combat Environmental Gentrification in Washington, D.C. and
           New York, N.Y.

    • Authors: Sarena Malsin
      PubDate: Mon, 25 Jan 2021 14:45:28 PST
  • Of Sex Crimes and Fencelines: How Recognition of Environmental Justice
           Communities as Crime Victims Under State and Federal Law Can Help Secure
           Environmental Justice

    • Authors: Joshua Ozymy et al.
      Abstract: Environmental justice communities throughout the United States continue to face disproportionate health burdens from living near industrial sources of pollution. Such burdens were caused by historically racist public policies and continue to be perpetuated by inadequate regulatory responses at the federal and state level. State and federal law has increasingly recognized an emerging set of rights afforded to victims of crime in court proceedings. We argue that members of environmental justice communities should be viewed as crime victims and have the same rights applied as other victims of violent crime. Using case examples under the federal Crime Victims’ Rights Act (CVRA) and exploring significant amendments to state constitutions in the last few years due to the Marsy’s Law Movement, we argue for the emerging potential to apply these rights to environmental justice communities. We contend this move will open up a new path to reduce harm for environmental justice communities left by the failures of the regulatory state and begin to give them voice and make them whole.
      PubDate: Mon, 25 Jan 2021 14:45:21 PST
  • The Fossil Fuel Industry’s Push to Target Climate Protesters in the

    • Authors: Grace Nosek
      Abstract: At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters in the U.S. The strategies for targeting protesters are grouped into three broad categories, with each category relying on distinctive legal tools. The first category is federal and state legislation that heightens penalties for climate protester in myriad ways. The second is the use of violence and surveillance against climate protesters by both state and non-state actors, which is connected to a rhetorical and legal push to label protesters as extremists and terrorists. The third is retaliatory lawsuits filed against climate protesters and organizations that support climate protests. Although such actions often ostensibly target civil disobedience, by imposing immense criminal and financial consequences, they threaten to unconstitutionally chill lawful, protected protest as well.By examining the tactics in concert, it is much easier to see how both individual protesters and organizations that support protesters might be chilled from participating in lawful climate protest. It is also clear that there are important synergistic effects when these tactics are used together, heightening their respective abilities to undermine and chill climate protest. A third insight is how difficult it is for climate protesters to legally challenge these tactics. Finally, the analysis shows the pivotal role fossil fuel industry trade and lobbying groups play in targeting climate protesters, highlighting the breadth and depth of industry support for such tactics.
      PubDate: Mon, 25 Jan 2021 14:45:16 PST
  • The Hallmarks of a Good Test: A Proposal for Applying the "Functional
           Equivalent" Rule From County of Maui v. Hawaii Wildlife Fund

    • Authors: Damien M. Schiff et al.
      Abstract: The Clean Water Act generally requires a federal permit for the discharge of pollutants “from any point source” to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed “directly” to regulated waters. But there is much disagreement over the extent to which indirect point-source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the “functional equivalent” of a direct point-source discharge. Unfortunately, the Court did not define the term “functional equivalent,” other than to offer a non-exhaustive list of seven factors to consider (emphasizing time and distance), and to admonish lower courts to both respect the states’ traditional authority over water pollution and be mindful of avoiding decisions that would encourage evasion of the Act’s permitting requirements.To pick up where County of Maui left off, this Article proposes the “hallmark” interpretation of the functional equivalent test. According to this approach, a pollutant discharge is the “functional equivalent” of a direct discharge (and therefore requires a permit) if it bears the hallmarks of a direct discharge—in other words, if the discharged pollutants still betray the traces of having been emitted from a “discernible, confined and discrete conveyance” (the statutory definition of “point source”). In contrast, if the pollutants lack those hallmarks, and thus are indistinguishable from pollutants added by nonpoint sources, then their discharge is not a regulated “functional equivalent.” This “hallmark” approach is consistent not only with County of Maui’s articulation of the functional equivalent rule, but also with the Court’s expectation of how that rule should be implemented. In support of the proposed hallmark analysis, the Article defines the reference point (“direct discharge”) and its functions, then explains how to determine whether the hallmarks of the pollutants at issue are equivalent to the hallmarks of a direct discharge. Finally, it cautions that, consistent with County of Maui’s admonition, the functional equivalent analysis must include a “perspective” check to prevent the Act from being used to undercut the states’ traditional authority over water quality, while also respecting Congress’ intent that certain point-source discharges be federally regulated.
      PubDate: Mon, 25 Jan 2021 14:45:10 PST
  • Financing Our Future’s Health: Why the United States Must Establish
           Mandatory Climate-Related Financial Disclosure Requirements Aligned with
           the TCFD Recommendations

    • Authors: Colin Myers
      PubDate: Fri, 29 May 2020 07:00:31 PDT
  • All Dogs Get Regulatory Protection—And This Means Wolves Too: Extending
           Species- Specific Animal Welfare Act Protections

    • Authors: Megan Edwards
      PubDate: Fri, 29 May 2020 07:00:24 PDT
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