Direct Environmental Standing for Chartered Conservation Corporations

This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State\u27s interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members\u27 interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over “cases and controversies” to the federal courts, would have seen the latter day business corporation as something of an oddity. Most incorporated entities during the eighteenth century were religious institutions, municipalities, and government franchisees. In fact, the now ubiquitous business corporation did not become commonplace until the early nineteenth century, as government franchise corporations expanded to include incorporation of private businesses. To the framers, then, the concept of a corporate entity asserting community interests in natural resources on its own behalf would have been no more alien than the concept of a corporate entity asserting private business interests

The Missing Element of Environmental Cost-Benefit Analysis: Compensation for the Loss of Regulatory Benefits

Despite its critics, cost-benefit analysis remains a fixture of the environmental regulation calculus. Most criticisms of cost-benefit analysis focus on the impossibility of monetizing environmental and health amenities protected by regulations. Less attention has been paid to the regressive wealth-transfer effects of regulations foregone based on cost-benefit analysis. This regressive effect occurs as long as downwind communities that suffer health and harms from environmental contamination are generally less wealthy than the owners of pollution sources that avoid regulatory-compliance costs. The availability of compensation to pollution-victims has the potential to ameliorate this regressive effect. This Article recommends that the availability of compensation to those suffering environmental harms should be an essential part of cost-benefit analysis, and the lack of compensation mechanisms should justify imposing regulatory burdens that might otherwise be rejected under cost-benefit analysis

Teaching Substantive Environmental Law and Practice Skills Through Interest Group Role-Playing

Most law students take their first introductory course in environmental law during their second year of law school. The traditional first-year curriculum does little to prepare students for the complex statutory and regulatory models for most environmental regulation. Law students at the end of their first year often have had little exposure to statutory interpretation. Further, they often have no exposure to administrative law and regulatory implementation. These students may expect statutes to provide clear statements of rules rather than guidelines for administrative rulemaking. They also tend to view the lawmaking and interpretive process through the traditional lens of congressional legislation and common-law-style judicial interpretation in a bipolar scheme of implementation--where the regulatory agencies and the regulated industries are the only players. In fact, environmental regulatory programs constantly evolve through a complex interaction of legislative amendment, administrative rulemaking, and judicial interpretation. Influencing these programs are the multipolar interaction of regulated industries, environmental groups, state agencies, and federal regulators. Law students accustomed to the bipolar model of common-law legal development and who expect statutory law to consist of a simple reading of clear statutory texts can find this interest group pluralist model of law development bewildering. One way to help give context to this complex interaction is to place students in the roles of the various advocates and decision-makers in the environmental law processes. Assigning students to adopt the perspective of various distinct players in the regulatory process, such as agency lawyer, industry lawyer, and environmental NGO lawyer, helps make this complex interaction more accessible to students. This also provides an introduction into the skills of statutory interpretation and regulatory implementation. At Pace Law School, we have had considerable success integrating this approach into an Environmental Law Skills course. This course combines a comprehensive study of the Clean Water Act (CWA) regulatory program with skills-based exercises in administrative rulemaking, judicial review, regulatory permitting, negotiation, and enforcement. The course was added to the curriculum in the 1990s in response to the growing recognition by the legal academy that the traditional case-oriented method of instruction failed to result in law graduates with basic competencies expected of lawyers. The course has been refined over the years to incorporate the Carnegie Report\u27s more recent critiques: the legal education\u27s failure to foster students\u27 development of their professional identities and their understanding of lawyers\u27 role in representing clients. By integrating role-playing, problem solving, and doctrinal instruction, the course seeks to engage students in active learning and professional identity development. The course also seeks to implement recommendations for the improvement of legal instruction contained in Professor Stuckey\u27s influential 2007 report, Best Practices for Legal Education. In particular, the course seeks to “teach doctrine, theory, and practice as part of a unified, coordinated program of instruction” as recommended in that report

Cultural politics: Black Performing Arts in Johannesburg

African Studies Seminar series. Paper presented September, 1976Max Weber (1964 ed.) was perhaps the first social theorist of power to note that activity in virtually any domain can serve as a basis of power, and that once established, such power can become available for use in other domains as well (Cohen 1966). Bertrand Russell (Cohen, 1969, p. 213) has most clearly expressed the implications of this notion for the study of power: "Power, like energy, must be regarded as continually passing from any one of its forms into any other, and it should be the business of social science to seek the laws of such transformation." It is my contention that the study of Johannesburg's black performing arts within the framework of a theory of social power can contribute to the formulation of such "laws". Though he does not concern himself with the arts specifically, Richard N Adams (1970, 1975) has developed a theory which can be of considerable value in understanding the role of expressive culture in the transformation of power in complexly structured situations

Fictions that save: Migrants' performance and Basotho national culture

African Studies Seminar series. Paper presented March, 1991Of all South Africa's neighbors, none has suffered more severely from expropriation and underdevelopment by white colonialism and supremacy than the Kingdom of Lesotho. In reality, Lesotho is not South Africa's neighbor but its backlot: an eroded, mountainous, Belgium-sized (11,716 sq. mi.) remnant of a once expansive semi-feudal African highveld state. The military depredations of the Free State Afrikaners, combined with successive betrayals by its erstwhile "protectors," the imperial British, transformed Basutoland from a largely self-sufficient agricultural exporter to an impoverished, dependent supplier of labor to South Africa (Murray 1980). While independence from Britain in 1966 did nothing to improve its economic position, Lesotho is one African nation whose citizens have never felt the slightest nostalgia for the colonial period. In the mid-19th century, the Basotho (sing.: Mosotho) were lauded by missionaries and resident British officials for their courtliness, ingenuous adaptibility, and eagerness for the "progress" they believed would come from the adoption of European ways. In the event, however, British and white settler colonialism deprived them of both autonomy and resources in virtually every sphere... Among the various categories of Basotho performers and performances, this paper focuses on migrant tavern singers turned recording artists, to whom some of the task of making and remaking Basotho "national culture" has fallen. Their songs, long performed in wayside bars and now widely distributed on radio and audio cassette, reveal the dynamics of genre, gender, and expressive authority in the politics of performance. Their relation to Sesotho as emergent tradition embodies the layered contradictions created by the need for social solidarity in the face of competing positions and interests, and for historical continuity (represented in collective metaphors in the face of a radically transformed and fragmented social reality (Marcus and Fischer 1986:184-5). In proposing the universality of the marginal as the defining condition and not merely the by-product of structuration, Babcock-Abrahams argues that marginality is not a structurally residual category, but "That which is socially peripheral or marginal is symbolically central and predominant" (Babcock-Abrahams 1975:155). Recognizing this, performers openly adopt "marginality" as a stance from which to address the tension between the impracticabilities of solidary structural ideals and the conflictual structure of real social practices

Is Citizen Suit Notice Jurisdictional and Why Does It Matter?

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element as “jurisdictional.

10-30-1985 Preliminary Memorandum

SUMMARY: Petrs challenge rulings by the dc, affirmed by CA4 1) that differentials between wages paid to white and black employees of the North Carolina Agricultural Extension Service (NCAES) did not constitute employment discrimination; 2) that maintenance of local 4-H clubs that are voluntarily segregated does not violate the Title VI prohibition against discrimination in programs receiving federal aid; and 3) that the NCAES did not discriminate against blacks in selecting county extension chairmen

The Intercivilizational Inequities of Nuclear Power Weighed Against the Intergenerational Inequities of Carbon Based Energy

This essay explains that such encouragement of nuclear energy production as a “solution” to fossil fuel-induced climate change will create environmental problems equally as grave as those posed by a carbon-based energy economy. Both nuclear energy and fossil energy impose enormous environmental externalities that are not captured by the economics of energy production and distribution. While emissions trading schemes seek to harness market-based efficiencies to accomplish pre-determined reductions, they neither seek to nor succeed in capturing the environmental externalities of energy generation. By creating a set of incentives without capturing all of the externalities, these trading schemes will simply distort the market, possibly leading to a worse overall damage to the environment than global warming by itself. Ultimately, nuclear power production as an alternative to carbon-based energy production simply presents a choice of evils. Efforts to reduce carbon emissions must not come at the expense of distorting energy markets in a way that exacerbates the equally insurmountable problems posed by the multi-millennial storage of hazardous nuclear waste