Authors:William C.C. Kemp-Neal Abstract: In the mid-1900s the United States began to see a rise in concern for environmental awareness issues. In the early days the movement focused on things like clean air, water and pollution but by the 1970s-1990s many prominent environmental awareness groups began to form focused on the idea that in order to avert climate change the principal goal needed to be to reduce global greenhouse gas emissions. In 1987 a report was released called Toxic Waste and Race, which outlined an intimate link between the placement of environmental hazardous waste sites in communities of color, and greater instances of polluted air, with contaminated water and soil in those communities as well. The concept of “Environmental Justice” soon formed with advocates labelling the above trend to disproportionately burden minority communities with environmentally harmful industries or practices “Environmental Racism.” PubDate: Wed, 02 Jun 2021 13:40:34 PDT
Authors:Chunyan Ding et al. Abstract: In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigation (“EPIL”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger' Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon the above two legislative landmarks in the law reform of this area, the regulatory practice of prosecutorial organs can be viewed as having occurred in three stages, with each stage featuring a distinct regulatory model: ad hoc regulation through local innovation before July 2015, forced regulation during the legal experiment from July 2015 to July 2017, and perfunctory regulation after the nationwide establishment of the prosecutor-led civil EPIL system in July 2017. The data shows that the Chinese prosecutorial organs have engaged in a larger number of such lawsuits since the second stage, but they have shown a strong preference for cases with less complicated facts, weak and small defendants, and minor environmental violations. Three factors that influence regulatory motivation are employed to analyse the change in regulatory models: the ambiguity of the law, the top-down political pressure for regulation, and the cost of regulation. This study highlights the very limited effectiveness of vertical political pressure in boosting prosecutorial regulationand the strong impacts of the cost of regulation and the ambiguity of the law. In particular, the high cost of regulation that takes weak regulatory capacity, lack of regulatory autonomy, and the winning rate-oriented performance appraisal system into account have significantly weakened the motivation of prosecutorial organs to pursue civil EPIL. The findings of this study echo the conditions present in the successful prosecutorial regulations in Brazil and contribute to the scholarship about prosecutorial regulations in the field of environmental protection in the Global South. PubDate: Wed, 02 Jun 2021 13:40:30 PDT
Authors:Kimberly E. Diamond Abstract: This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry.Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance connectedness and engagement play in garnering public buy-in during a cutting-edge renewable energy device’s roll-out. Part III discusses private investors’ critical role in bearing financial risks associated with backing experimental technologies, promoting aesthetically unusual device designs, and integrating novel devices into the built environment.Part IV explores the advantages that data anonymization and data sharing within a data trust construct can produce for constituents in an innovationcluster, particularly those functioning together within a public-private partnership. Part V explores the benefits of introducing a renewable energy device prototype in an innovation cluster, where the government, academia, and industry collaborate and share data through public-private partnerships in an engaged, supportive, and technologically savvy community focused on accelerating the development of a particular industry.This paper concludes that by setting industry standards that continuously evolve in tandem with technologies they aim to regulate, having businesses’ investment-backed expectations remain a key driving force in renewable energy device development, and deploying government funding through innovation clusters that support data sharing and public-private partnerships in a particular industry, the U.S. can strike a desired balance and mindfully scale-up its nascent renewable energy industry. PubDate: Wed, 02 Jun 2021 13:40:26 PDT
Authors:Manny Marcos Abstract: The Superfund Task Force recently released its final report on the implementation of its recommendations for improving the Superfund program. The Task Force was given five goals for improving the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA’s”), implementation. These goals are to expedite cleanup and remediation, re-invigorate responsible party cleanup and reuse, encourage foreign investment, promote redevelopment and community revitalization, and engage with partners and stakeholders. While the Task Force’s recommendations have improved CERCLA’s implementation, many of CERCLA’s structural flaws remain intact. Specifically, CERCLA still has a severe shortage of funding, an unfair liability scheme, perverse incentives, due process concerns, excessive litigation costs for PRPs, and social justice concerns. To resolve these flaws, this Note proposes that the legislature take legislative and administrative action to remove the petroleum exclusion; reimpose and expand the superfund taxes; remove CERCLA’s retroactive, joint, and several liability scheme; create an independent board to evaluate CERCLA liability using the gore factors; create an objective and racially just NPL-placement policy and fines imposition policy, and engage with nonprofit organizations. PubDate: Wed, 02 Jun 2021 13:40:22 PDT
Authors:Salma Shitia Abstract: Decade-long negotiations between the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia surround the decision to build the hydroelectric power plant along the River Nile. For much of Ethiopia, the Grand Ethiopian Renaissance Dam represents a beacon of prosperity. For countless Egyptians, the structure embodies a potential catastrophe. Grounded in threats of displacement for Egyptian agricultural communities, some have compared the Grand Ethiopian Renaissance Dam crisis to disasters culminating in mass migration.This battle for natural resource access has intensified as climate change exacerbates the region’s dire conditions. Specifically, exhaustible resource allocation amid climate change indicates that regional development, competition, and associated conflict will increase. While development opportunities along the Nile may in fact facilitate expansive economic transformation for the region, the Grand Ethiopian Renaissance Dam conflict illustrates heightening conflict between two key African states, leaving potential regional success in jeopardy and military combat a growing reality. International water law remains at the conflict’s forefront as governments, scholars, andinternational organizations grapple with vital legal questions. The way international water law is applied to the Grand Ethiopian Renaissance Dam crisis will be influential and create powerful international legal precedent for global transboundary waterways. For this reason, international and regional bodies must acknowledge the foreseeable future where upstream and downstream confrontations for exhaustible resource-based development opportunities are common. PubDate: Wed, 02 Jun 2021 13:40:17 PDT
Authors:Eian Katz Abstract: Transboundary resource disputes are often analyzed by reference to two nebulous and conflicting principles that have emerged in international environmental law: “equitable and reasonable utilization” and “no significant harm.” Frequently overlooked in this context is the potential value of other canons of international law—especially human rights law, criminal law, and the rules governing the use of force—in adding definition to the muddled contours of these foundational precepts. This Article therefore undertakes an assessment of sovereign rights and obligations regarding shared natural resources which arise from these other bodies of law. In doing so, it offers new lenses through which to evaluate competing state resource claims. It also provides fresh perspective on longstanding controversies in international law relating to extraterritorial jurisdiction, conflict of rights, and non-military attacks or uses of force. PubDate: Wed, 02 Jun 2021 13:40:12 PDT
Authors:Donald D.A. Schaefer Abstract: This is written as a continuation of Dr. Schaefer’s recent article entitled, “The Use of the Regular Militaries for Natural Disaster Assistance: Climate Change and the Increasing Need for Changes to the Laws in the United States, China, Japan, the Philippines, and Other Countries.” 2 Perhaps few other areas have affected so many people than the Covid-19 pandemic. Coupled with this has been the struggle over the use of force by the military and police in the age of “black lives matters” and the movements that have been transpired as a result. With the increased global warming likely to continue to give rise for an ever- growing number of catastrophic hurricanes, typhoons, and other natural disasters, budgets for these events should not be cut or force limited due to a fear of using such force by the regular military to save lives under what is termed here the “Somalia effect” whereby a recent event might limit such usage in times of crises, and as a result lives will be lost. PubDate: Thu, 25 Mar 2021 10:37:29 PDT
Authors:Amanda Voeller Abstract: The consequences of climate change seriously and immediately threaten the American way of life, but proposed federal legislation like the Green New Deal is overly broad, unrealistic, and inefficient. The most effective way for the United States to combat climate change is not with a one-size-fits-all plan like the Green New Deal, but with federal legislation that incentivizes states and cities to enact and enforce individualized, local climate legislation. Different states and cities have different climates, available energy sources, and transportation needs, so the federal government should use financial incentives to encourage states and cities to pass tailor-made bills and ordinances that work for each_locality.he idea for this incentive statute comes from the 1984 National Minimum Drinking Age Amendment, a federal statute in which Congress withheld 5% of federal highway funding from states that did not set their minimum drinking ages to 21. The statute was very effective, leading to all 50 states increasing their drinking ages to 21 within four years. A bipartisan Supreme Court upheld the statute as a constitutional use of Congress’s spending power. This Article proposes more complex and nuanced legislation, but the general idea is the same: Congress may use its spending power to incentivize states to enact statutes in line with federal policy goals. An incentive statute like the one proposed in this Article would succeed because it would afford states the flexibility to decide which types of climate legislation would work best in their states while also holding those states accountable to environmental benchmarks. PubDate: Thu, 25 Mar 2021 10:37:25 PDT
Authors:Shannon Price Esq. Abstract: Although red tides are a common and natural occurrence around the coast of Florida, within the last few decades they have intensified and become much more deadly. Several identifiable human-caused factors exacerbate the size, concentration, and duration of the harmful algae bloom and disturb the environment’s natural balance. The Florida Gulf Coast provides all the algae’s necessary requirements for survival, the perfect storm to create a resilient super bloom that annihilates its host ecosystem.This article explains the plight of Florida manatees who, like other marine animals and plants, are being injured or killed by this algae crisis. It also provides background information about Florida red tides, including how they are formed and the human activities that are to blame for this disruption in the ecosystem’s natural balance. It suggests current laws protecting both manatees and water quality are inadequate or ineffective as they do not directly address nonpoint nutrient pollution, the root cause of these massive super blooms. Using a multifactorial approach, it proposes several simple solutions to mitigate the harmful effects of red tide super blooms and save the manatees along with other marine life. PubDate: Thu, 25 Mar 2021 10:10:20 PDT
Authors:Dr. Joshua Ozymy et al. Abstract: The criminal prosecution of defendants that violate federal clean water laws has been ongoing for roughly four decades. Yet, we continue to have a poor understanding of how federal prosecutors use the U.S. Clean Water Act (“CWA”) to charge and prosecute criminals and the outcomes of those prosecutions. We use content analysis to analyze 2,588 federal criminal prosecution case summaries, 1983-2019, to gain a better historical understanding of how the CWA has been used as a prosecutorial tool, to bring out the major themes in the prosecutions, and quantify sentencing outcomes. Findings from the 828 CWA prosecutions undertaken during this time period suggest that charging patterns center on four themes, which fall in line with the EPA’s compliance monitoring strategy for the CWA: illegal discharge, illegal dredging and filling, false reporting, and tampering with a monitoring device. Total punishments include over $1.2 billion in monetary penalties, 34,600 months probation, and 5,269 months incarceration. PubDate: Thu, 25 Mar 2021 10:10:15 PDT
Authors:Kimberly E. Diamond Abstract: A cataclysmic event is sometimes the necessary catalyst for companies within certain industries to re- examine, radically shift, and replace their standard practices with technologically-advanced alternatives. In the United States, the occurrence of the Coronavirus pandemic (“COVID-19”) during the sunsets of the Production Tax Credit (“PTC”) and the Investment Tax Credit (“ITC”) created a unique confluence of factors that produced a perfect storm tantamount to such a cataclysmic event for companies in the wind and solar industries, particularly developers. Over the years, the domestic utility-scale wind industry has come to rely heavily upon the PTC, while the domestic utility- scale solar industry has come to rely significantly upon the ITC. Developers within each of these renewable energy industries originally planned to qualify for such federal tax credits, relying upon the presumption that goods would be delivered and services would be rendered in accordance with historical norms for “ordinary course of business” operations.This, however, did not occur. COVID-19 abruptly and unexpectedly emerged, with the virus’s widespread transmission sweeping the world during the end of fourth quarter 2019 and first quarter 2020. COVID-19’s consequences disrupted the global supply chain, creating workforce shortages, causing factories that manufactured equipment and components for wind farm and solar array construction to shut down, and presenting substantial hurdles for many developers to overcome in order to reach certain project construction and operations milestones – milestones that would have been readily reachable under normal circumstances. Irrespective of COVID-19 and its related ramifications, the step-down and phase-out periods of the PTC and ITC, respectively, nevertheless required these milestones to be met by certain fixed, federally- mandated deadlines. These rigid requirements posed an imminent threat to many commercial wind developers and solar developers alike, as failure to meet such milestones and deadlines meant tremendous adverse implications for their utility-scale wind or solar projects. Specifically, missing a deadline under the PTC or ITC meant that a project either would only qualify for a lesser federal tax credit amount than originally anticipated or would be forced to forego use of the federal tax credit altogether. For developers relying on one of these federal tax credits for purposes of financing their respective projects, neither of these alternatives were viable options.As there was no guarantee during first quarter 2020 that either the United States Congress or the United States Department of the Treasury would extend the PTC’s and ITC’s deadlines, developers were forced to pivot quickly, think out-of-the-box, and innovate. Consequently, a heightened level of inter-industry collaboration occurred within both the U.S. wind and solar industries. Developers throughout these industries also began re-examining the force majeure provisions in their contracts, evaluating the benefits of expanding the definition of a force majeure event toinclude health emergencies such as pandemics, and considering the merits of adopting uniform standards across contracts, including the mandatory requirement that identical force majeure definitions be used across the multiple contracts relating to the same project. This elevated contract drafting standards in both the U.S. wind and solar industries. Moreover, developers in these industries not only re-thought their equipment procurement strategies, but they turned to technological innovations to mitigate and refine their own internal operations and maintenance (“O&M”) practices. This resulted in ramped-up adoption of and increased reliance on high-tech devices, such as drones and Doppler Light Detection and Ranging systems (“LIDAR”), which helped to automate and streamline many companies’ internal O&M protocols. These changes permanently modified the character of O&M standards across the domestic utility-scale wind and solar industries, accelerating these industries’ advancement down the technology continuum and causing them to evolve more rapidly than they would have ordinarily. Ultimately, while the PTC’s and ITC’s deadlines did eventually get extended in late May 2020, prior to such time, in addition to smoothing the project permitting process and strengthening the finance industry’s pre-merger due diligence disclosure requirements for mergers and acquisitions (“M&A”) transactions, COVID-19’s impacts permanently transformed the U.S.’s wind and solar industries from a technological perspective, yielding positive operational outcomes and building resilience in both industries that will benefit them in the future. PubDate: Thu, 25 Mar 2021 10:10:11 PDT
Authors:Ishtiaque Ahmed Abstract: Ship-breaking is one of the most dangerous occupations in the world and widely known as a pollution-heavy industry. This industry is currently concentrated primarily in three South Asian developing countries, namely Bangladesh, India and Pakistan. Ensuring the safe and environmentally sound recycling of ships remains a global concern. There are many international regulations which apply to the activities of ship-breaking, but none of them address the issue in a comprehensive manner. The most relevant international instrument governing ship recycling, the 2009 Hong Kong Convention remains unenforceable due to non-ratification by the chief ship recycling states. The only enforceable international instrument closely relevant to ship recycling activity is the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal adopted in 1989. However due to its exceedingly pro-environmental character, its applicability over End of Life ships remains uncertain. As a stop-gap measure, this article will attempt to explore other currently enforceable international laws that can potentially be utilized to govern the industry in the face of uncertainty with these two mainstream legal instruments. This article postulates that a prompt solution to this controversial global activity is unlikely to occur anytime soon. PubDate: Tue, 11 Aug 2020 09:34:08 PDT
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