The Duke Environmental Law & Policy Forum began in 1991 as an interdisciplinary magazine published annually. Since then, the Forum has grown into a traditional environmental law journal. DELPF has retained its interdisciplinary roots and presents scholarship that examines environmental issues by drawing on legal, scientific, economic, and public policy resources. DELPF's affiliations with the Nicholas School for the Environment, the Terry Sanford Institute for Public Policy, and the Law School render it uniquely positioned to adapt to the increasingly interdisciplinary nature of environmental law. DELPF is student-run publication, with staff members from the Law School, the Nicholas School for the Environment, and the Terry Sanford Institute for Public Policy. New journal members, both JD and non-JD, are selected based upon their writing skills, research ability, and interest in both DELPF and environmental policy. DELPF presents an annual symposium each fall that attracts top academics, practitioners, and policy makers from across the nation. Recent symposium topics have included The Future Environmental Agenda: Environmental Law & Policy Issues Facing the Next President and A Charged Atmosphere: The Future of U.S. Policy on Global Warming.

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The Globethics.net library contains articles of Duke Environmental Law & Policy Forum as of vol. 1(1991) to current.

Recent Submissions

  • A Case Study of Canadian Regulation of BPA: Insight Into the Science

    Ellis, Jaye; Papaluca, Arturo; Hamtiaux, Myriam; Hales, Barbara F.; Robaire, Bernard (Duke University School of Law, 2022-05-19)
  • Renewable Energy Development on State Trust Lands

    Montague, Ada C.; Panarella, Samuel J.; Yould, Peter (Duke University School of Law, 2022-05-19)
  • A Contentious Mission: Water Supply and Corps of Engineers Reservoirs

    Benson, Reed D. (Duke University School of Law, 2022-05-19)
    The U.S. Army Corps of Engineers operates hundreds of multi-purpose reservoirs nationwide, many of which provide water for municipal and industrial purposes. Demands for water from Corps reservoirs are sure to grow, and Congress has ordered the Corps to report on whether water supply should become a primary mission of the agency. The Corps has experienced controversy over water supply decisions, including disputes involving its Missouri River reservoirs and Lake Lanier in Georgia. When the Corps proposed a national Water Supply Rule in 2016, it drew significant opposition, forcing the agency to withdraw the rule and reassess its policies. This article summarizes the Corps' existing authorities and practices on water supply, reviews the issues raised by the proposed rule, and analyzes a legal dispute over control of water within Corps reservoirs. It then examines key policy issues the Corps must address in carrying out its water supply mission, ensuring that state and tribal interests, environmental concerns, public input, and the impacts of climate change are adequately considered.
  • Journal Staff

    Duke University School of Law, 2022-05-19
  • Maroons, the Law and Degrowth: A Sustainable People in a Sustainable Environment

    Reddix-Smalls, Brenda (Duke University School of Law, 2022-03-25)
    Maroon settlements in North America's Mid-Atlantic colonies have recently received extensive attention from scholars and researchers. While anthropological and archaeological research and explorations have unearthed significant material liminal artifacts to indicate the presence of maroon communities in the Great Dismal Swamp (GDS) located between Virginia and North Carolina, few human remains from the interior have been reported and unearthed. Colonial records, slave laws, deeds, and newspaper advertisements of the early colonial period (1600s–1800s), provide written documentary evidence of maroon presence in the GDS. However, scant attention has been paid to the correlation between the profit motives of the colonial settlers, increasingly repressive slave laws, and court judgments and escapes into North American (GDS) marronage. Nor have scholars utilized alternative methods of viewing the existence of maroon communities while analyzing the de-growth sustainability of the maroons in the Great Dismal Swamp. This article examines the correlations between colonial profit motives, slave laws, marronage, and environmental de-growth within the maroon communities. As the profits from production increased, Mid-Atlantic colonists increasingly turned to unfree labor, and implemented draconian slave laws and judgments to maintain perpetual racialized slavery. As a direct result, enslaved Africans increased their journeys to marronage and sustainable communities within the Great Dismal Swamp. I do not direct my focus to Indigenous peoples, but the violent removal, extinction, and extraction of Native American communities and kinships is worthy of study although outside of the scope of this article.
  • Journal Staff

    Duke University School of Law, 2022-03-25
  • The Importance of Stopping Environmental Dumping in Ghana: The Case of Inefficient New and Used Cooling Appliances With Obsolete Refrigerants

    Agyarko, Kofi A.; Andersen, Stephen O.; Ferris, Richard "Tad" Zan, Hubert; Osae-Quansah, Emmanuel; Dreyfus, Gabrielle; Derder, Mohamed Rida; Bosire, Leslie Olonyi; Bloomer, Laura; Sun, Xiaopu (Duke University School of Law, 2022-03-25)
    Environmentally harmful product dumping ("environmental dumping") of new and used low-efficiency cooling appliances with obsolete ozone-depleting and greenhouse gas refrigerants in African countries impoverishes communities, hinders economic development, threatens ecological systems, and harms public health. The use of low-efficiency cooling appliances increases energy demand, leading to higher power plant emissions and limiting affordable energy access in African countries. These low-efficiency appliances and products contain ozone-depleting refrigerants with high global-warming potential (GWP) or ozone-safe refrigerants with high GWP. Environmental dumping of these appliances and products makes it more difficult for countries to meet their international climate obligations and for the world to meet the Paris Agreement's climate change mitigation targets. Ghana faces high levels of environmental dumping, despite a national ban on importing used cooling appliances and established efficiency standards for new air conditioners and refrigerators. Through the Energy Commission's Office of Renewable Energy, Energy Efficiency, & Climate Change (REEECC), the government of Ghana is partnering with the Institute for Governance & Sustainable Development (IGSD) to stop environmental dumping. This article provides a list of interventions that can be implemented by Ghana, by governments in countries that export to Ghana, and by industry and other stakeholders. Notably, these actions focus on the shared responsibility of exporting countries and manufacturers by calling on exporting countries to update and enhance enforcement of their laws, and on global manufacturers to stop exporting inefficient products with obsolete refrigerants to Ghana and other African countries.
  • Turning Carbon Into Gold: Incentivizing the New Alchemy

    Chavez, Anthony E. (Duke University School of Law, 2022-03-25)
    One approach to help address climate change is carbon capture and utilization (CCU). CCU involves capturing atmospheric carbon dioxide and using it to generate marketable products. CCU, however, needs significant additional research and development to reach its potential. Development of CCU could yield benefits far in excess of its actual ability to sequester carbon. Research and development of CCU could stimulate improvements in carbon capture technologies, incentivize the capture and sequestration of carbon, and generate products that can benefit society generally. Nevertheless, most CCU uses remain only theoretical, or significant barriers prevent their current implementation. A number of policy tools are available to incentivize CCU research: patents, prizes, grants, and tax credits. This article reviews the strengths and weaknesses of each. Then, it discusses how best to apply these policies to incentivize a number of possible CCU opportunities, including construction materials, fuels, chemicals, and algae-derived products.
  • The (Human) Rights of Nature: A Comparative Study of Emerging Legal Rights for Rivers and Lakes in the United States of America and Mexico

    Macpherson, Elizabeth (Duke University School of Law, 2021-08-13)
    An international consensus of scientific experts is now demanding "immediate action" in response to the environmental, climate, and biodiversity crises. But are our legal and regulatory frameworks equipped to respond to the rapid pace of environmental degradation, biodiversity loss and climate change? What incidence is there, transnationally, of laws that seek to protect the Earth from the humans that inhabit it? In the past few decades, there is a growing social, legal, and political movement towards more ecocentric regulation of the planet, where new laws and institutions seek to protect natural resources for their own intrinsic value. In this paper, I consider recent efforts to protect the rights of rivers in the U.S. and Mexico, which are novel and emerging attempts to discover new pathways for enhanced protection of vulnerable waterways. These attempts are being pragmatically driven from the bottom up to the highest levels of the legislature or judiciary as local communities (and sometimes Indigenous Peoples) become increasingly frustrated with apathetic and complacent governmental responses to environmental challenges, using whatever legal tools and processes are available to them. However, rather than an Earth-centred revolution, efforts to protect the rights of nature are distinctly "human"; as communities appeal to human rights laws, and their enhanced constitutional status, to upset the status quo. There are important lessons to be learned from these experiences in other countries in terms of the ability to entrench transformative environmental protections via constitutional hierarchies and the potential for the rights and interests of humans to be both an enabler of, as well as a threat to, nature's rights.
  • Implementing Ecosystem-Based Management

    Gray, Brian; Harder, Jennifer; Bork, Karrigan (Duke University School of Law, 2021-08-13)
    Most freshwater ecosystems in the United States are in a state of collapse. Existing management efforts take a piecemeal approach, addressing individual stressors, managing the systems for individual benefits, and protecting individual species. These disjointed efforts are doomed to fail. Both the legal literature and the scientific literature are rich with articles extolling the advantages of ecosystem-based management; that is, simultaneous management of water, land, and organisms to achieve a desired ecosystem condition benefiting both native biodiversity and human well-being. This approach has succeeded in other aquatic systems, particularly marine ecosystems, but the ecosystem-based management approach has struggled for adoption in the freshwater ecosystem context. The primary challenge lies in implementation. Freshwater ecosystems face a complex web of local, state, and federal law, and those laws create a perceived legal barrier to adoption of ecosystem-based management. Nevertheless, the existing legal literature offers little practical guidance for developing the legal and governance framework to implement freshwater ecosystem-based management in practice. Using the state of California as a case study, this article shows that the California Water Board is empowered and well-positioned to implement freshwater ecosystem-based management in California. By demonstrating that existing state and federal laws allow and even support ecosystem-based management, this article lays out a new state-level legal framework for better management of freshwater ecosystems. This approach, which does not require controversial changes to state and federal law, offers a reasonable and realistic way to improve the state of freshwater ecosystems.
  • Journal Staff

    Duke University School of Law, 2021-08-13
  • Note: Modernizing Conservationism: Renewable Energy's Species-Preserving Effect and the Endangered Species Act

    Hamilton, Chase (Duke University School of Law, 2021-08-13)
    Environmental policymakers face a dilemma, for the construction and operation of renewable energy facilities mitigates ecologically destructive climate change in the long term but often adversely affects species in the short term. This paper provides empirical, legal, and normative resources for analyzing what I call "species clash." In most cases, renewable energy is much more helpful than harmful when it comes to preventing species extinctions, but the Endangered Species Act paradoxically poses a barrier to such species-preserving projects. Framing the benefits of renewable energy in terms of species conservation may not only help secure speedy and cost-efficient compliance with the Act, but also foster a more rational conservationism fit for an era of climate change.
  • Essay: Forks In the Road

    Vandenbergh, Michael P.; Gilligan, Jonathan M. (Duke University School of Law, 2020-12-31)
    This Essay outlines a simple heuristic that will enable public and private policymakers to focus on the most important climate change mitigation strategies. Policymakers face a dizzying array of information, pressure from advocacy groups, and policy options, and it is easy to lose sight of the forest for the trees. Many policy options are attractive on the surface but either fail to meaningfully address the problem or are unlikely to be adopted in the foreseeable future. If policymakers make the right decision when confronting three essential choices or forks in the road, though, the result will be 60% to 70% reductions in greenhouse gas emissions, an amount that will keep widely-adopted climate mitigation goals in reach. The three options are decarbonization of the electrical grid, electrification of the motor vehicle fleet, and electrification of buildings. International, national, and subnational officials, philanthropists, corporate executives, advocacy group leaders, and households all have the ability to prioritize these three options in their regulatory, purchasing, and other actions. If they choose these three decarbonatization options, many other mistakes can be made without jeopardizing the achievement of widely adopted emissions targets. If they make the wrong choice, however, few combinations of other viable options can achieve the necessary reductions. In the face of a growing consensus that immediate, major emissions reductions are required, the forks in the road heuristic can provide policymakers with the framework necessary to make smart decisions and ignore the noise surrounding climate law and policy.
  • Where the Deer and The Antelope Play:Conserving Big Game Migrations As an Endangered Phenomena

    Stoellinger, Temple; Albers, Heidi J.; Middleton, Arthur; Shogren, Jason F.; Bonnie, Robert (Duke University School of Law, 2020-12-31)
    In the American West, high-profile big game species including mule deer, antelope, elk, moose, bison and bighorn sheep use large landscapes to migrate between winter and summer habitats to obtain the resources they need to survive. The big game species are a vital part of the West’s ecology, economy, and culture and are valued by local, national, and international stakeholders. Thanks to large parcels of private and public land and a low human population, many parts of the American West still provide some of the best big game habitats in the world. But these vast, intact landscapes are under threat by ongoing habitat loss and disturbances to seasonal and migratory habitats that result in declines in big game population and the disappearance of migrations. Addressing the challenge of conserving big game populations and the endangered phenomena of seasonal migration across large landscapes in the American West will require dynamic, innovative, and flexible legal approaches. Those legal approaches should recognize the biological needs of the species themselves and reflect economic policy analysis of conservation in landscapes with multiple land managers. Considering both integrated biological and economic decision frameworks and incentive-based tools to define and implement legal and policy structures can produce migratory species conservation more efficiently than less integrated approaches. Conservation of big game migrations is now a growing priority and initial conservation efforts are beginning to emerge, including the Department of Interior Secretarial Order 3362 “Improving Habitat Quality in Western Big-Game Winter Range and Migration Corridors” and state policies including the Wyoming Game and Fish Department Ungulate Migration Corridor Strategy. This interdisciplinary paper evaluates those emerging policies and finds that the policies miss opportunities to provide higher levels of conservation of migratory species by failing to address key ecological characteristics of migratory species and to incorporate economically efficient hierarchies of management and policy. We conclude by offering thoughts on how future conservation polices might be designed to incorporate both ecology and economics to better conserve migrations.
  • Note: Foundational But Not Fundamental: No Right To the Environment

    Torres, Robert (Duke University School of Law, 2020-12-31)
    The world is on fire, and despite a general consensus among scientists that climate change is an imminent threat, recent decades have been devoid of legislatures capable of enacting meaningful legislation. The flames rage on as our President, an outspoken denier of climate change, adds fuel to the fire by stripping whatever attempts had been previously made to mitigate the effects of climate change. Forced to live in what seems a forsaken world, nineteen youths, a nonprofit organization, and a scientist on behalf of all future generations brought suit against the United States government, seeking more robust environmental protections. In a landmark decision that garnered much thoughtful attention, Juliana v. United States, held, in pertinent part, that the U.S. Constitution protects a fundamental right to a climate system capable of sustaining human life. After nearly a century of looking past the written words of the Constitution to find intrinsic rights, twenty years ago the Supreme Court dictated a rigid two-part test for sustaining alleged fundamental rights. The Glucksberg test came to fruition despite decades of justices arguing for a more fluid analysis. That is until Justice Kennedy penned Obergefell v. Hodges. Justice Kennedy carefully sidestepped Glucksberg so as not to offend it and instead adopted that fluid approach in finding certain fundamental rights, leaving two possible paths. This Note argues that under the current formation of Supreme Court substantive due process jurisprudence, the Constitution does not protect a fundamental right to a climate capable of sustaining human life. Neither Glucksberg nor Obergefell provide a proper avenue through which plaintiffs may successfully seek redress. Rather, plaintiffs must utilize other mechanisms to effectuate a lasting change, such as amending the Constitution, employing the political process, or persistently litigating in a piecemeal fashion.
  • Journal Staff

    Duke University School of Law, 2020-12-31

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