Climate Change, Federal Paralysis, and the State Attorneys General: The Case for Establishing Climate Preservation Units

Dewey Warner “Our planet is a lonely speck in the great enveloping cosmic dark. In our obscurity, in all this vastness, there is no hint that help will come fromelsewhere to save us from ourselves.” Less than three decades after Carl Sagan penned this warning, the responsibility “to preserve and cherish . . . the only home we’ve ever known” is illuminated in stark and tragic fashion by the effects of a rapidly changing climate. Extreme weather events are more frequent and severe. A mass extinction is underway. Tens of millions face famine. A heightened risk of disease threatens the entire…
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The Psychology of Pollution Control

Arden Rowell and Kenworthey Bilz Pollution control is fundamentally affected by how people evaluate the harm of pollution. In many legal contexts, psychological processes contribute to an intuitive undervaluation of the harms of pollution, particularly where those harms are diffuse in space and time, complex in character, and/or accrue to nonhuman stakeholders. Psychological processes that impact people’s perception, understanding, and response to pollution can therefore affect how—and how effectively—pollution is controlled. Understanding those psychological processes can thus pay explanatory and prescriptive dividends, including by informing how pollutants are defined, when pollution is tolerated, and how pollution control instruments operate.Full Article. 
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Advancing Water Security in Colonias

Rhett Larson & Dylan Hendel  Colonias are small, generally unincorporated communities of predominantly Hispanic residents located near the U.S./Mexico border that suffer disproportionately from water insecurity associated with inadequate drinking water quality and reliability and flooding risks. Many of the water insecurity challenges facing colonias’ residents stem from inadequacies in water law and environmental law. However, many legal obstacles to achieving water security in colonias stem from seemingly unrelated legal challenges, including voting rights, land title and land use issues, and lack of access to effective legal assistance, particularly in securing support from existing federal programs. Each of the four…
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The Litigation Labyrinth: Climate Torts and the Clew of Failure-To-Warn

Sean Krieg On April 1, 2021, the Second Circuit Court of Appeals told taxpayers to “shoulder[] the burden” of New York City’s climate mitigation expenseswithout any help from major fossil-fuel producers, marketers, or distributors. The court made this unfortunate assessment while affirming the dismissal of the City’s claims against oil and gas companies responsible for over eleven percent of all industrial methane and carbon pollution since the industrial revolution. The City had sued for financial assistance with the costs of protecting its residents from the impacts of the climate crisis—a crisis these companies played a major role in creating and aggravating.…
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Dislocating The Separation of Powers State ‘Thumb’ on The Biden Sustainability Initiatives & Law

Steven Ferrey  The much-lauded advantage of the U.S. federalist legal system of separation of legal powers among separate levels of federal, state, and localgovernment is credited with seeding innovation, experimentation, and diversity as a positive variable in the resilient American legal system. Now, U.S. separation of power within the U.S. system of law poses a legal barrier to addressing climate change or rapidly transitioning to sustainable infrastructure. Inferior levels of state and local government now are placing their legal ‘thumb’ on and are legally blocking implementation of the recently enacted Infrastructure Investment and Jobs Act (2021 Infrastructure Law) and the 2022 Inflation Reduction Act. This article analyzes elements supporting…
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Liberating Sustainable Development from Its Non-Historical Shackles

John C. Dernbach & Scott E. Schang In his enormously influential writings on the public trust doctrine, Professor Joe Sax argued that its core idea could, and should, be expanded beyond the natural resources to which it had been historically subject. He made that point forcefully in an essay entitled Liberating the Public Trust Doctrine from Its Historical Shackles. “At its heart,” he wrote, “the public trust doctrine is not just a set of rules about tidelands, a restraint on alienation by the government or an historical inquiry into the circumstances of long forgotten grants.” Rather, he said, courts should resolve competing…
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Mapping Ecosystem Benefit Flows To Normalize Equity

Keith H. Hirokawa, Cinnamon P. Carlarne, Karrigan S. Börk, & Sonya Ziaja  Although the needs of the public health, safety, and welfare vary across time and space, human survival requires functioning natural systems. It is no exaggeration to say that, either cumulatively or individually at a relevant scale, interruptions to ecosystems, atmospheric systems, the geosystem, or the hydrological cycle cause major disruptions in the ability of such systems to maintain the planet as a habitable place. Ensuring that natural systems are functional, limiting actions that disturb those systems, and maintaining important aspects of ecosystems as they respond to climate change,…
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Cracks in the Wall: The Persistent Influence
of Ideology in Establishment Clause Decisions

Gregory C. Sisk & Michael Heise In our ongoing empirical examination of religious liberty decisions in the federal courts, extended now into a third decade, we find the persistence of ideological influence in Establishment Clause decisions for the period of 2006–2015. Because a non-partisan judiciary is essential to preserve the rule of law, we should sound the alarm when partisan influences appear to be weighting the outcome.At the same time, one might take comfort in a systematic narrowing of the partisan gap in this most recent ten-year period for our study. For 1996–2005, we had found an Establishment Clause claimant’s chances…
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Court Packing, Senate Stonewalling, and the
Constitutional Politics of Judicial
Appointments Reform

Matthew A. Seligman Reforming the Supreme Court is at the center of the political and legal landscape for the first time in generations. The growing gap between the ideological composition of the Court, the democratic will of the electorate, and perceived procedural irregularities in the appointment of Justices over the last five years, has fueled calls for expanding the size of the Court. Those calls have triggered renewed efforts to repair the appointments process through term limits and a regularized appointments schedule. But in an age of peaking partisanship, the bipartisan cooperation that would be necessary for that proposal to pass…
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Law Enforcement Officers, Students, and the
School-to-Prison Pipeline: A Longitudinal

Jason P. Nance & Michael Heise Recent data indicate that a majority of schools now have regular contact with law enforcement officers, transforming the educational experience for hundreds of thousands of students nationwide. The proper role of police officers in schools, if any, has been hotly debated for years. But this debatewas elevated to an unprecedented level during the summer of 2020 following the tragic deaths of George Floyd and others, precipitating national calls to “defund the police” and leading many school districts to reconsider their relationships with law enforcement agencies. This debate over whether police officers belong in schools continues…
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