Fish Advisories: Useful Or Difficult to Interpret?

The authors note that fish and shellfish offer significant exposure to environmental toxins but find that consumer knowledge and other factors may limit efforts to control risk in urban populations

State Public Nuisance Claims and Climate Change Adaptation

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence of state common law in this context, separation of powers and the political question doctrine, displacement and preemption, and standing. Part IV considers the potential merits of the plaintiffs’ public nuisance claims under California law

Spectral Representations of One-Homogeneous Functionals

This paper discusses a generalization of spectral representations related to convex one-homogeneous regularization functionals, e.g. total variation or $\ell^1$-norms. Those functionals serve as a substitute for a Hilbert space structure (and the related norm) in classical linear spectral transforms, e.g. Fourier and wavelet analysis. We discuss three meaningful definitions of spectral representations by scale space and variational methods and prove that (nonlinear) eigenfunctions of the regularization functionals are indeed atoms in the spectral representation. Moreover, we verify further useful properties related to orthogonality of the decomposition and the Parseval identity. The spectral transform is motivated by total variation and further developed to higher order variants. Moreover, we show that the approach can recover Fourier analysis as a special case using an appropriate $\ell^1$-type functional and discuss a coupled sparsity example

Fracking and Federalism Choice

In response to David B. Spence\u27s Federalism, Regulatory Lags, and the Political Economy of Energy Production, I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that given the fast-paced growth in drilling activity across the country, fracking’s environmental impacts should be analyzed with regard to their cumulative effects. When so viewed, it is clear that fracking gives rise to interstate, and even national, problems that must be addressed accordingly. Third, I argue that widespread impacts on rural America weigh in favor of federal regulation

Narratives in Conflicts: Alaska Natives and Offshore Drilling in the Arctic

This Symposium Essay examines and elucidates the ways in which the narrative constructions that constitute the “imaginary Arctic” factor into litigation surrounding Shell Oil’s highly controversial attempts to drill for oil and gas in the Beaufort and Chukchi seas off Alaska’s North Slope. Judges, lawyers and litigants involved in the Shell litigation have deployed a number of well-established storylines against each other: the Arctic as Classical Frontier, the Arctic as Spiritualized Frontier, the Arctic as Ancestral Homeland, the Arctic as Developing World, and the Arctic as Neutral Space. The litigation literature produced by this “battle for the Arctic” offers an opportunity to observe how conflicting narratives about nature figure into the rhetorical strategies of lawyers and judges – and thus how they factor into the law. In addition, the role of Inupiat narratives in the litigation and underlying administrative proceedings illustrates that – accepting the bargain struck in the 1971 Alaska Native Claims Settlement Act as a given – the layered United States system of administrative permitting and judicial review does not violate indigenous peoples’ rights under relevant provisions of international law

Materials Consumption and Solid Waste

The circular economy represents a powerful new paradigm for materials consumption and solid waste management. Instead of beginning with extraction and ending with waste, the circular economy begins with material already in use, or else material designed for iterative uses, moves through production and consumption, and into waste management, which secures a revived or altered source material, which in turn moves though production and consumption, and so on, over and over again. Achieving significant greenhouse gas reductions in this area requires widespread shifts in production and consumption toward what can be expressed succinctly in a familiar refrain: “reduce, reuse, recycle.” There are a number of legal pathways to achieving emissions reductions through materials consumption and solid waste management. Corporate governance as well as research and development of new materials can play a significant role, and significant advances can be made through regulatory interventions

A Mitigation Based Rationale for Incorporating a Climate Change Impacts Fee into the Federal Coal Leasing Program

This paper describes the legal and policy rationale for imposing a fee on federal coal that reflects the costs of the climate change impacts generated by that coal. It notes that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this mitigation option, such as what metrics should be used to establish an appropriate fee and how a fee might work with carbon sequestration efforts and other emissions offsets. The paper was intended to inform the scope of the mitigation measures that Interior and BLM will consider in their programmatic environmental review of the federal coal leasing program, and was submitted directly to these federal agencies