Now showing items 1-20 of 381

    • Integrative Environmental Law: A Prescription for Law in the Time of Climate Change

      Flournoy, Alyson C. (Duke University School of Law, 2020-06-01)
      As the magnitude of the threat posed by climate change has become increasingly apparent, scholars and practitioners have begun a dialogue about how to reform environmental law to meet the challenge. Concepts like adaptive management, sustainability, and resilience have emerged in succession, as policy makers and scholars search for new moorings for our ethical and legal framework. While useful, these concepts have failed to provide a vision, goal, or solid ethical grounding for environmental law in the era of climate change. This project takes a new approach by exploring what we can learn from the field of Integrative Medicine. The history of the development of Integrative Medicine offers interesting parallels, contrasts, and lessons for environmental law as it grapples with the existential challenge of climate change. The article highlights the striking similarities between the limitations of conventional medicine that led doctors to pursue an integrative approach and the limitations that have stymied progress under our environmental laws. After reviewing developments in environmental law and policy that align with a path towards an integrative approach, it outlines the key unaddressed challenges and prescribes a path towards integrative environmental law. It describes how these reforms, grounded in lessons from Integrative Medicine, will help us to better meet the challenges of climate change. In closing, it offers several case studies of ongoing law and policy advocacy that illustrate how an integrative approach can overcome the limitations that have impeded our progress in addressing climate change and other environmental challenges.
    • Administrative Law’s Extraordinary Cases

      Skinner-Thompson, Jonathan (Duke University School of Law, 2020-06-01)
    • Journal Staff

      Duke University School of Law, 2020-06-01
    • Agricultural Exceptionalism in Vermont Land Use Law

      Phelps, Jess (Duke University School of Law, 2019-01-21)
    • The Complexity Dilemma in Policy Market Design

      Aagaard, Todd S.; Kleit, Andrew N. (Duke University School of Law, 2019-01-21)
      Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as a distinctive type of market brings to light common characteristics of such markets, which in turn generates insights into how they can be used more effectively to implement policy. In particular, this Article focuses on a recurring fundamental challenge in policy market design: managing complexity. Typical markets manage complexity through market forces. As a regulatory creation, however, policy markets require regulators to manage their complexity. This poses what we call the complexity dilemma, which requires regulators to balance strong pressures both toward and away from complexity. The central argument of this Article is that although policy markets are an important part of a regulator’s toolkit, they are also subject to complexity that limits their usefulness. Understanding the complexity dilemma and its crucial role in policy market design forms an essential step toward progress in improving the design and function of these markets.
    • What can the Apple Teach the Orange? Lessons U.S. Land Trusts can Learn from the National Trust in the U.K.

      Gwin, Lauren; Owley, Jessica; Fairfax, Sally K. (Duke University School of Law, 2019-01-21)
      The National Trust in England, Wales, and Northern Ireland is one of the oldest and most revered private land conservation organizations in the world. While the private land conservation movements in the United States and the United Kingdom began at a similar time and with similar tools, conservation attitudes and methods in the two countries diverged. Today, the National Trust dominates land conservation in the U.K. while the strength of the U.S. movement is the energy of over 1,500 smaller organizations operating at different scales across the country. Despite the differences, this project looks to the National Trust in England and concludes that three elements of the National Trust’s experience provide important insights for U.S. land trusts rethinking their programs as political and environmental change engulfs the planet. First, the National Trust has gone through several iterations in its understanding of general public benefit and public access to protected properties in a way that most U.S. land trusts have yet to do. Second, National Trust experience suggests that U.S. land trusts could become more engaged in land-use regulations rather than presenting themselves primarily as an alternative (private, compensated, voluntary) thereto. Finally, the National Trust’s approaches to balancing agricultural productivity with sustainability provide useful models to study and emulate in the management of working landscapes. Many of the lessons learned by the National Trust could enrich private land conservation in the United States in an era of government withdrawal from environmental protection and growing impacts of climate change.
    • China’s Emissions Trading System: Steps Toward Article 6 Linkage

      Melvin, Melinda (Duke University School of Law, 2019-01-21)
    • Journal Staff

      Duke University School of Law, 2019-01-21
    • Pollution Trading and Environmental Injustice: Los Angeles’ Failed Experiment in Air Quality Policy

      Bansal, Shipra; Kuhn, J. Scott; Drury, Richard Toshiyuki; Belliveau, Michael E. (Duke University School of Law, 1999-04-01)
    • Tribal Water Quality Standards: Are There Any Limits

      Baker, Janet K. (Duke University School of Law, 1997-04-01)
    • Food Quality Protection Act of 1996: Science and Law at a Crossroads

      Miller, Andrew J. (Duke University School of Law, 1997-04-01)
    • Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation

      Wilensky, Meredith (Duke University School of Law, 2015-10-01)
      As the impacts of a warming climate system become more apparent and countries across the globe begin to implement mitigation and adaptation measures, the issue of climate change has increasingly arisen in litigation. While there has been substantial literature examining how the issue of climate change has manifested in U.S. courts, this article is the first large-scale assessment of climate change litigation outside the United States. Based on an empirical study of all reported non-U.S. litigation, this article discusses what types of claims have arisen; how climate litigation varies by jurisdiction; who the key players are; and what their primary goals are. Drawing upon these findings, this article assesses how courts have dealt with the issue of climate change and the role litigation is playing in the formation of climate change policy. This comprehensive assessment reveals that climate change litigation is almost entirely concentrated in five jurisdictions: Australia, New Zealand, the European Union, Spain, and the United Kingdom. The nature of these suits varies widely across jurisdictions, reflecting each jurisdiction’s unique legislative and regulatory framework, energy portfolio, and legal system. Generally, however, non-U.S. climate change cases have mostly been tactical suits aimed at specific projects or details regarding implementation of existing climate policies, especially emissions trading systems. In examining climate change jurisprudence, this article finds that the courts accept the scientific consensus surrounding climate change and tend to treat climate change much like any other environmental issue.
    • Adapting Human Rights

      Larson, Rhett B. (Duke University School of Law, 2015-10-01)
      Governmental leaders, scholars, and activists have advocated for human rights to food, water, education, health care, and energy. Such rights, also called positive rights, place an affirmative duty upon the state to provide a minimum quantity and quality of these goods and services to all citizens. But food, education, water, and health care are so different–in how they are produced, consumed, and financed–that the implementation of a positive right must be adapted to the distinctive characteristics of the good or service it guarantees. The primary aims of this adaptive implementation are transparency, enforceability and sustainability in the provision of positive rights. Only by adapting a positive right to its policy environment can such a right function as a viable means of protecting disadvantaged members of society. This article uses the example of positive rights to public utilities, such as water and energy, to illustrate adaptive implementation of positive rights. In doing so, this article explains why and how a positive right must be adapted to the unique policy environment of a given public utility.
    • C & A Carbone v. Clarkstown: A Wake-Up Call for the Dormant Commerce Clause

      Baker, Rachel D. (Duke University School of Law, 1995-01-01)
      Introduction Garbage collection, transportation, and disposal have historically been the responsibility of individual towns and cities in the United States. 1 However, stringent environmental regulations, declining landfill capacity, and the implementation of costly source reduction and recycling programs have greatly increased the costs of waste management borne by towns. 2 For the past two decades, many local governments have relied on "flow control" ordinances to finance their solid waste management activities. 3 These ordinances designate where municipal solid waste generated within the community must be managed, stored, or disposed. 4 Recently, in C & A Carbone, Inc. v. Town of Clarkstown, 5 the U.S. Supreme Court ruled that such ordinances violate the Commerce Clause of the U.S. Constitution. In this decision, the Court misapplied the dormant Commerce Clause doctrine and thereby jeopardized the financial stability of local governments that have relied on flow control ordinances to finance their waste management programs. Flow control ordinances dictate where a community's garbage must be processed or disposed. 6 By enabling a local government to control its garbage, flow control helps the town meet its environmental goals, such as ensuring that recyclable materials are properly separated. 7 Typically, garbage processing and disposal facilities charge a fee per ton of garbage handled, known as a "tipping" fee. 8 By requiring all municipal waste to be shipped to a designated facility, flow control guarantees a stream of revenue to that facility. 9 Local governments have relied on this revenue to fund ...