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.
In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigations (“EPILs”) 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 show 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 regulation and 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 EPILs. 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.
To avoid dangerous climate change, society will need to deploy carbon dioxide removal technologies (CDR), quite probably in large quantities. Nevertheless, these technologies are undeveloped and currently deployed at only fractions of the amount that will be necessary. Thus, we need to establish a set of policies that will accelerate the development and deployment of CDR. Patterns of technology diffusion provide important insight into the development of effective policies to promote the innovation and installation of new technologies. The dissemination of new technologies tends to follow a recurring pattern called the S curve. This pattern includes a slow initial adoption, a take-off phase, and then slow dissemination to the remaining population. Recently, experience with the development of renewable energy followed this pattern. Renewable energy’s growth not only demonstrates this diffusion pattern, it reveals the effectiveness of certain policies that promoted diffusion. It also illustrates the difficulties that can arise when policies do not match a technology’s location on the S curve. This paper will consider the possible effectiveness of these policies in developing carbon dioxide removal technologies. In an earlier paper, I looked at renewable portfolio standards (RPSs), which mandate quantities of renewables, as a means to incentivize deployment. Accordingly, this paper will focus on price regulations, typically in the form of price subsidies (FITs) or tenders (competitive auctions). It also considers secondary policies – primarily tax credits and cash grants – that enhanced the effectiveness of the primary policy. This review of renewable energy diffusion and the policies that supported it helps to construct a set of principles and policies that can accelerate the diffusion of CDR technologies. These policies will need to reflect the differentiation of technologies and geographic resources, provide a stable policy environment to encourage investment, and incorporate mechanisms to respond to changing technological and market conditions. Many aspects of renewable energy policies should be able to facilitate CDR development. RPSs can provide an overall structure that will assure installations continue at a steady pace. They also incentivize acquisition of the lowest-cost technologies, which will help contain overall costs and encourage continued innovation. FITs provide long-term subsidies that assure profitability, thereby encouraging investment into new technologies. Secondary policies, such as tax credits and cash grants, should be included because of their recognized effect of enhancing the effectiveness of primary policies. As the technologies mature, their costs will decline, thus causing a rush to install reduced-cost technologies at price-supported rates. Not only must the supporting policies be adjusted to contain their overall costs, governments should also transition to different policies that better reflect the new market realities. Thus, as technologies mature, FITs should be phased out in favor of policies, such as auctions, that can reduce installation prices.
In its primary everyday sense, legal justice means treating people as the law provides. This is the 'commonsense' conception of legal justice. The article examines complications in, and alternatives to, this conception of legal justice. The fundamental problem is that on the commonsense conception, if law is itself unjust, legal justice will conflict with justice in its extralegal sense. There is strong reason to believe that the tension between extralegal justice—which in many religious traditions has utopian and radical connotations—and legal justice—which emphasizes consistency, stability, and order—can never be eliminated. Moreover, even when a law is good, inflexible application may yield inequitable outcomes in particular cases. The article examines the following approaches to relieving this tension between legal justice and extralegal justice: natural law, equity, alternative dispute resolution, and economic, pragmatist, and feminist approaches to law.
In the 1990s, New York embarked on an experiment of epic proportions when it sought to restructure what had become a regulated monopoly of an industry: its energy sector. Like many other states, New York sought to increase competition within the energy sector to drive down prices for consumers and expand the range of renewable energy options that were available. After waiting nearly three decades, New York appears poised to finally assess the efficacy of this great experiment. Years of escalating consumer complaints, Attorney * Carrie Scrufari is Lead Counsel to the Utility Intervention Unit in the Division of Consumer Protection at the New York Department of State. She has previously clerked at the New York Court of Appeals in Albany and at the Supreme Court of New York, Appellate Division, Fourth Judicial Department in Rochester, New York. She earned her J.D. from the University of Maryland in 2011 and is a member of the Order of the Coif and the Order of the Barrister. She earned an LL.M. degree in food and agricultural law and policy from Vermont Law School in 2016 and is now an adjunct assistant professor at Vermont. She wishes to thank the editors of the Fordham Environmental Law Review for their excellent editorial assistance and feedback. The opinions contained herein are solely those of the author and do not represent the views of the New York Department of State. 1. Quoted in Energy to Lead: 2015 New York State Energy Plan, New York State Energy Planning Board, Vol 1, at 8, file:///Users/carriescrufari/Downloads/ 2015-state-energy-plan.pdf. 350 FORDHAM ENVIRONMENTAL LAW REVIEW [VOL. XXIX General investigations, and analysis by the Department of Public Service Staff have revealed that residential consumers are not faring as well as the State had hoped. Since 2014, New Yorkers electing to receive energy commodity service from companies competing with the default utilities were overcharged to the tune of one billion dollars. In households where families struggle to make ends meet and often must choose between putting dinner on the table or keeping the heat on, any overcharge on an energy bill creates a public health hazard. Having faced its third polar vortex in five years, more New York families than ever before confront the Hobson’s choice of paying for food or paying for energy at a time when costs have never been higher. This article argues for the necessity of implementing additional consumer protection measures in the retail access energy market.
Secretary of the Interior Ryan Zinke has described “compensatory mitigation” as “un-American” and “extortion.” In keeping with that view, on July 26, 2018, the Bureau of Land Management (“BLM”) adopted a radical new policy that disclaims statutory authority to impose compensatory mitigation measures. Notwithstanding the aspersions the Secretary has cast, compensatory mitigation is a common-sense policy instrument that has been a mainstay of environmental and public lands policy for decades. It is a tool through which an agency authorizing private activities — drilling oil wells, filling wetlands — conditions its approval upon the implementation of measures to offset attendant environmental harms. Compensatory mitigation thereby permits economic activity to proceed while maintaining the health of public lands and the environment more generally. This Essay examines the sparse legal analysis included in the BLM’s new policy and contends that it is illogical and unsupported by precedent. While policymakers may disagree about when and to what extent compensatory mitigation is appropriate, the BLM has entirely failed to justify its new and novel legal interpretation.
The modern doctrine of environmental standing prevents many worthy environmental plaintiffs from presenting their cases in court; it allows those who would desecrate and despoil the environment for profit to do so with impunity. Considering the coming environmental catastrophe that climate change will almost certainly usher in, this restrictive doctrine has profound implications. But as this Article shows, the modern environmental standing doctrine is an aberration. For most of American history, there were no standing requirements even approaching the severe demands of Lujan. Yet the Justices who created the modern doctrine claimed they were simply clarifying a “traditional requirement,” or they had “always” interpreted standing in this manner. By delving deeply into the personal papers of Supreme Court Justices and the archives of environmental plaintiffs, this Article shows that the Justices’ invocation of tradition is blatantly incorrect. In so doing, it completely retells the story of how the less restrictive standing doctrine of the early twentieth century morphed into today’s demanding “injury-in-fact” requirement. This Article focuses especially on the seminal standing cases of the mid-1960s to the mid-1970s. By carefully reading the Justices’ opinions in concert with the archival material, this Article shows that the nebulous injury requirement of yesteryear transformed into the demanding “injury-in-fact” requirement during this time because of the Justices’ inadvertence, ignorance of history, and responsiveness to unimaginative arguments made by plaintiffs’ lawyers. In fact, the Justices actually wanted to help the burgeoning environmental organizations that brought the seminal standing cases; but, in their quest to do so, the Justices accidentally created—pretty much out of whole cloth—the strict and punitive concept of injury-in-fact. This Article pays especial attention to Sierra Club v. Morton. Though remembered now for liberalizing the standing doctrine, this Article shows that the case did no such thing. Though remembered now for Justice Douglas’s bold dissent arguing that trees should have standing, this Article shows that the truly radical dissent belonged to Justice Blackmun. Finally, this Article charts a path out of this mess, by arguing for a thorough rethinking of the doctrine of environmental standing. Drawing on two forgotten yet crucial insights from Blackmun’s Sierra Club dissent, as well as another largely forgotten innovation of the 1960s and 1970s, this Article argues for the passage of state-level environmental standing statutes, granting standing even in the absence of an injury. In its conclusion, this Article proposes a model law.
