Georgetown Environmental Law Review

Publisher:
Georgetown University Law Center
Publication date:
2022-07-01

Latest documents

  • Killing Two Myths with One Stone: How the Public Trust Doctrine Can Improve Climate Resiliency by Stopping Gentrification
  • The Systematic Exclusion of Complainants and Impacted Communities in EPA External Civil Rights Compliance Office's Title VI Resolution Process: Recommendations for ECRCO and States

    The Environmental Protection Agency's ("EPA") Office of External Civil Rights Compliance's ("ECRCO") history of failure to adequately enforce Title VI of the Civil Rights Act of 1964 ("Title VI") has been the subject of publications and lawsuits. Those who file a Title VI complaint with ECRCO are often excluded from any significant role beyond reporting in the complaint resolution process. Complainants' inclusion is often discretionary (if at all). Resolutions are primarily undertaken between those in violation of the law and EPA. Such resolutions are usually voluntary and inadequately enforced. This Note advocates for a greater degree of formal inclusion of complainants and impacted communities in Title VI cases, with a specific focus on environmental racism cases where an EPA funding recipient has violated Title VI against a community. To accomplish this goal, this Note advocates for an adoption of elements of EPA's Superfund Portland Harbor Community Involvement Plan and Connecticut's recently revised environmental justice statute as a framework for increased, structured complainant involvement in ECRCO's complaint resolution process. This Note references the Title VI lawsuit filed by residents of Uniontown, Alabama as a case study for application of this argument and acknowledges the barrier of the current gaps in Title VI enforcement by EPA and individual states

  • Constitutional Environmental Rights as Tools of Environmental Justice: Applications in the United States Based on Examples from Brazil and France
  • Legal Challenges of Building Resilience for Informal Settlements in Developed, Democratic Contexts

    Rising sea levels, storm surges, inland and coastal flooding, and other climate-related risks are threatening human lives. These risks are intensified for informal settlers who live in environmentally fragile areas, lack secure legal tenure, and have limited access to public services. To date, most research regarding informal settlements under climate change has focused on those in what is commonly known as the developing world, where there are thousands of dwellers living in large-scale enclaves. Using an analysis of Shezidao, an unrecognized informal settlement in Taipei City, this paper argues that informal settlements exist in developed countries as well but that they are mostly ignored by their governments and underrepresented in the informal settlement scholarship. Few legal scholars have studied informal settlements in a developed and democratic context. This paper hopes to fill that gap in the legal scholarship. Given the extra-legal nature of informal settlements, this paper utilizes democratic principles and international human rights law to discuss the legal challenges surrounding informal settlements. It also proposes pathways to build resiliency not just for Shezidao, but also for the greater Taipei City. The same solutions that are recommended for Shezidao can be applied to the challenge of building resilience in informal settlements in other developed, democratic contexts

  • Watered Down Voices, Watered Down Justice: A Demand for Polycentricism, Demosprudence, and Praxis in WOTUS Regulatory Reform

    For decades, science has demonstrated that discrete populations have been disproportionately forced to suffer the horrors of living in areas contaminated by toxic and hazardous substances. Communities of color, indigenous communities, and other marginalized communities continuously endure the effects of multigenerational water, air, and land pollution. Whether intentionally or not, the Environmental Protection Agency (EPA) and regulatory elites have promulgated so-called "neutral rules" that have resulted in a systemic and everexpanding national environmental caste. For this to end, EPA must stop being a knowing or unknowing participant in regulatory oppression and become an active agent of regulatory change. EPA is required to take environmental justice concerns into account when promulgating new regulations; amplifying the voices of traditionally subordinated affected communities is an essential element of this goal. Nevertheless, EPA lacks a systematic method to incorporate direct outreach to and engagement with impacted communities and has no detailed outline nor specific strategy to ensure that the voices of impacted communities are heard. Thus, the Trump Administration was able to promulgate new regulations related to the definition of "waters of the United States" (WOTUS) that are likely to have significant negative impacts on water quality, much of which will be borne by disenfranchised communities, while affording those communities little to no voice in the regulatory process. This Article maintains that the Biden EPA should adopt a sociolegal approach, informed by the theoretical principles of polycentrism and demosprudence, to address systematic and decades-long environmental injustices. This approach would help shift and redistribute power from environmental regulatory elites to the people most affected by environmental harms. Using the case study of WOTUS regulatory reform, we argue that the Biden EPA has a perfect opportunity to create a more inclusive regulatory process that expands the power of historically disenfranchised people, while addressing known harms that will result from the current regulations. The Biden EPA could use WOTUS reform to establish a new paradigm for expanding the power of non-elites and to create a model for a more equitable form of regulatory decision making and a more democratic form of governance

  • Before the Deluge: Federal Policy and Flood Resiliency

    Discourse on addressing climate change and its effects often focuses on climate mitigation—chiefly, reducing greenhouse gas emissions. However, policymakers and communities must also devote considerable attention to climate adaptation—actions that enable communities to better live with or move away from climate risks. As the events of the past year make clear, this issue is particularly urgent regarding flooding, which will increasingly threaten coastal and inland communities. This article evaluates the current federal policy landscape as it pertains to flood risk. The article examines three policies that, though not conceived as a response to climate change, may nonetheless be potential tools for promoting adaptation and resiliency. For each program—the Army Corps of Engineers' Flood Risk Management program, the National Flood Insurance Program, and a tapestry of federal grant programs—the article evaluates its efficacy and proffers reforms to better equip that program for the challenges ahead

  • Enforcing Conservation Easements: The Through Line
  • Clean Air Act Section 115: Is the IPCC a 'Duly Constituted International Agency'?

    Does the Environmental Protection Agency's ("EPA") receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency's duties under Section 115 of the Clean Air Act? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA's imposition of nationwide greenhouse gas regulation to combat climate change. One way to do so is to trigger EPA's duties "upon receipt of reports, surveys or studies from any duly constituted international agency." This Article considers whether EPA could reasonably interpret the IPCC to qualify as such an entity, and concludes not, but that a better candidate might exist

  • The Positive Obligation to Prevent Climate Harm Under the Law of State Responsibility

    This Article analyses the positive obligation under the law of state responsibility to mitigate climate change harm and the evolving regime of environmentbased human rights cases in progressing the overall climate regime. State responsibility can be a powerful means for states to hold other states accountable for causing transboundary environmental harm. Where a violation of the obligations can be established, states bear liability for their wrongdoing. The idea that wrongdoing should be met with reparation or some other recourse is an important attribute of the legal order with the potential to affect climate behaviour. The challenges in establishing a primary obligation to mitigate climate change damage due to the soft, open-ended and flexible nature of the climate regime imply that there are limits in international law as a means of recourse for climate change damage. However, the content of these soft and hard provisions within the climate regime informs the requisite standard of due diligence, which entails the taking of all appropriate measures to prevent the risk of damage where there are reasonable indications of potential risks of climate damage. A growing number of environment-based human rights cases in regional and domestic fora are representing emerging norms on how climate change prevention rules and principles are applied. The developing international jurisprudence informs the parameters of the obligation and the trend of climate change affecting human rights, which may further inform the content of the obligation. There has yet to be a climate-related case decided under international law. This Article argues that, in light of the burgeoning trend of domestic and regional climate litigation cases reflecting international norms and standards, climate cases can be litigated in an international court or tribunal

  • Vermin of Proof: Arguments for the Admissibility of Animal Model Studies as Proof of Causation in Toxic Tort Litigation

    Toxic torts is a body of law that aims to compensate individuals for harms they suffer from exposure to hazardous substances. To successfully bring a toxic tort claim, a plaintiff must prove the main elements of a general tort cause of action: duty, breach, causation, and damages. Causation in a toxic tort case is particularly challenging to prove given the nature of toxic substances. To prove the toxicant in question caused the damages alleged, plaintiffs often present expert testimony based on scientific studies. Animal model studies, in particular, can help factfinders understand the health implications of the toxicants at issue. However, judges, scholars, and other legal professionals are skeptical of the use of animal studies because of scientific and legal concerns, which range from interspecies disparities to prejudice of juries. These concerns are either unfounded or exaggerated. Animal model studies can be both reliable and relevant in toxic tort cases. Given the Federal Rules of Evidence, case law relevant to scientific evidence, and one of the goals of tort law—justice—judges should more readily admit these types of studies as evidence to help plaintiffs meet the burden of proof in toxic tort litigation

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