The Value of Constitutional Environmental Rights and Public Trusts

As part of the modern environmental movement of the 1970s, five states (Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania) adopted constitutional amendments recognizing a right to a quality environment, a public trust for public natural resources, or both. Half a century later, there is renewed interest in constitutional environmental rights, inspired in no small part by the failure of existing laws to adequately address the climate crisis. A sixth state (New York) recognized a constitutional right to a quality environment in 2021, and more than a dozen states are considering such amendments. Still, the great majority of environmental protection at the state level is accomplished by statutes and regulations. In that context, what specific value do constitutional provisions contribute to environmental and natural resources protection?This Article attempts to answer that question for U.S. states, based on judicial decisions in these states. These provisions can contribute value in at least three ways, depending on how they are written and how courts interpret and apply them. First, constitutional environmental rights and public trusts limit governmental authority to act contrary to their provisions. They can be the basis for invalidating inconsistent statutes, regulations, and other government actions. They can be used in a variety of ways to improve access to the courts, and they have been used to broaden and deepen protection for public natural resources beyond the protection accorded under traditional public trust law. Second, they provide additional authority for governmental efforts to protect the environment and natural resources. Third, they can provide the basis for legal actions against private parties.Constitutional environmental rights and public trusts are not a silver bullet for all environmental problems. But they can add value to a state’s environmental and natural resources protection effort in a rich variety of ways

We Are All Sustainability Lawyers Now

As this article explains, sustainable development grows out of environmental and natural resources law, but it is different in many ways. American environmental lawyers, like most Americans, tend to see sustainable development through the lens of environmental law and the overall policy it represents, and thus miss the transformative potential of this framework. Sustainable development also does not have the kind of “heft” or visibility environmental law does because so much of it comes from international conferences and agreements that are not considered “law.”If the United States remains stuck in seeing environmental protection largely or entirely through the lens of environmental law, or even environmental and energy law, we are not going to get the environmental protection we need. Nor are we going to get the kind of economic development, social wellbeing, and peace and security that will be essential in the decades to come. As other countries, such as many in Europe as well as China and Japan, closely focus on coordinating across environmental, economic, and social goals, our own myopia will likely put the U.S. at a long-term competitive disadvantage.What needs to be done to achieve a sustainable America? This article describes the many specific recommendations for action published by the Environmental Law Institute over three decades. They make clear that while all of us have a role to play in achieving a sustainable society, regardless of where we live, what kind of work we do, and whatever our skills and abilities, environmental lawyers in particular need to reimagine ourselves as sustainability lawyers

From Clair to Annalise: How to Get Away with Being a Black Woman Lawyer on Television

Clair Huxtable was the iconic mother, wife, and lawyer on The Cosby Show, an American television sitcom that premiered in September 1984. She appeared to be the perfect lawyer—partner in a law firm, prepared for every case, triumphant in every case, and never stepping over, or anywhere near, the boundary line of legal ethics—all while mothering children ranging in age from 5 to 20 years and supporting her equally successful obstetrician/gynecologist husband. In all her perfection, Clair presumably inspired young women to become lawyers during the middle 1980s through the early 1990s, and beyond. Clair Huxtable was a tough act to follow. The Black women lawyers who came after her on scripted television brought more realism to what it really means to be Black, woman, and a lawyer. These characters have helped direct the professional identities of their real counterparts in the decades since Clair entered our living rooms. This article explores the images of Black woman lawyer characters on scripted television since 1984 and how those images compare or contrast with Clair Huxtable and real-life Black women lawyers

Governing for Sustainability: Accelerating the Transition to a Sustainable Society

Sustainable development may be one of the most important and potentially transformational ideas to come out of the last century. The ultimate objectives of sustainable development are freedom, opportunity, justice, and quality of life for everyone in this and future generations. While the United States has a substantial body of environmental and social protection laws, we are far from being a sustainable society. The question is what to do.This book provides a detailed set of recommendations for federal, state, tribal, territorial, and local governments, as well as the private sector and civil society organized around the United Nations\u27 Sustainable Development Goals. The various contributions that personal behavior can make toward both public and private governance are included as well. These recommendations would help make America a better place for all. Every American has a role to play

Martinez-Cuevas V. Deruyter Brothers and COVID-19: Is it Time to Re-examine Farmworker Labor Protections?

In the fall of 2020, in the midst of the COVID-19 global pandemic, a closely divided (5-4) Washington Supreme Court, in Martinez-Cuevas v. Deruyter Bros. Dairy Inc.1, held that dairy workers, despite a state wage and hour law2 specifically exempting agricultural workers, are entitled to overtime pay. The Court based its decision, in part, on the dangerous nature of the work performed by the dairy workers.3 Although the decision was specific to dairy workers in Washington, the majority of U.S. farmworkers are not entitled to overtime wages while working jobs that are generally considered dangerous and have been made more so during COVID-19

Growing Carbon Credits: Strengthening the Agricultural Sector’s Participation in Voluntary Carbon Markets through Law and Policy

In the face of a global climate crisis, the United States is not relying upon a command-and-control environmental regulatory system to prevent cataclysmic consequences. Instead, the United States is accepting voluntary greenhouse gas (GHG) emissions reduction pledges from the private sector that have little hope of being achieved without substantial emissions reductions, significant infrastructure improvements, and the purchase of carbon offset credits from voluntary carbon markets (VCMs). However, VCMs, a form of private environmental governance (PEG), are only a viable solution to the climate crisis if there are high-quality credits that function as valid representations of GHG emissions reductions. The agricultural sector is expected to play an important role in generating carbon credits through the adoption of carbon sequestering production methods, but farmers are not committing to sow the seeds of carbon credit generation. At this critical juncture, farmers’ concerns about carbon credit generation need to be understood and addressed in a way that maintains market flexibility while ensuring the integrity of the credits. In the last year, there have been multiple legislative proposals offering varying forms of public governance support for the private carbon marketplace. This government intervention is reflective of a new public-private hybrid form of environmental governance for VCMs. This Article seeks to contribute to the theoretical and empirical literature of PEG by evaluating the proposed forms of government support for VCMs and analyzing how a hybrid public-private environmental governance structure will facilitate the performance of VCMs. To explain how hybrid public-private environmental governance for VCMs will encourage the participation of the agricultural sector, this Article is structured around three propositions. The first is the agricultural sector’s central role in addressing climate change. The second is that VCMs are the preferred mechanism in the United States to facilitate emissions reductions pledges. The third proposition is that competing VCM standards and low carbon credit prices have created barriers to market entry for the agricultural sector. The recent passage of the Inflation Reduction Act and the revised Growing Climate Solutions Act have the potential to support the private carbon marketplace through funding for regenerative agricultural practices and by establishing a trusted source of credit generation information. To be effective, however, this public-private environmental governance will need to create a cohesive and transparent marketplace by unifying credit standards among markets, reducing transaction costs, and improving the economic incentives for the agricultural generation of carbon credits

Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity

The right to vote of an individual who has been convicted of a felony has historically been subject to state law restrictions. Currently, approximately 5 million individuals in the United States are estimated to have their right to vote limited due to a felony conviction. Although forty-eight out of the fifty states currently restrict the right of an individual convicted of a felony to vote, these restrictions are remarkably disparate and non-uniform with respect to voter disqualification. Moreover, these statutes continue to evolve in a haphazard manner. Consequently, the extent and duration for which an individual convicted of a felony will have his right to vote suspended or lost will often depend on his state of residence as opposed to the seriousness of his criminal conviction

ABA encourages climate-conscious lawyering at cop27

The American Bar Association (ABA) partnered with other bar associations to encourage climate-conscious lawyering at the recently concluded international climate conference in Egypt. The ABA participated in first-ever events with the International Bar Association (IBA), the Brazilian Bar Association (OAB), and the Law Society of England and Wales (LSEW) on their roles and the role of lawyers generally in addressing climate change. This was the 27th annual meeting of the Conference of the Parties to the U.N. Framework Convention on Climate Change (COP27)

Pledging Movable Property in Saudi Arabia: Unleashing Secured Lending

Saudi Arabia has created much needed legal certainty over pledging personal property with the issuance of the royal decree entitled “Securing Rights with Movable Property Law” (the 2020 Movable Property Decree”), also referred to as the Moveable Assets Security Law or MASL. The 2020 Movable Property Decree incorporates the best and most innovative approaches and frameworks from other jurisdictions for secured lending. The 2020 Movable Property Decree has enormous potential to help achieve the results of Vision 2030 for Saudi Arabia. Firms should consider entering into the different forms of secured lending transactions that are expressly covered by the 2020 Movable Property Decree. To add legal certainty, regulators should consider expressly clarifying and confirming that participation interests in limited liability companies should be characterized as movable property, making them eligible to be pledged. Finally, Saudi Arabia should consider expressly allowing firms to pledge intellectual property as security for their obligations

Blockchain Real Estate and NFTs

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized ownership and local land records that still, in many jurisdictions, rely on paper. We explain the history of real property title protection and then identify the problems with the existing system. We then compare the extant system (and its problems) with what blockchain could offer, concluding that a blockchain system would provide few, if any, benefits.That said, we concede that tracking and transferring ownership of certain rights—specifically, purely intangible rights—is a long-standing legal problem that begs for resolution. We focus on ownership signals, and contrast ownership of physical assets—which is broadcast in part by manual possession in addition to, in the real estate realm, recording—and ownership of intangible assets, which cannot be possessed in a way that easily gives a signal to the entire world that the possessor is the owner. Because of that difference, we conclude that the true use case for NFTs and distributed ledgers is in tracking and verifying ownership of intangibles