Category: Volume 50 (2018) Issue 2 (Summer)

50 Ariz. St. L.J. 549 (2018). Ernesto Hernández-López. Sustainable food policies strive for environmental, healthy, economically just, and humane food production. Their success has ignited legal debates about the Constitution. This is not new. Iconic constitutional law cases examine sustainable food, such as meat in the Slaughter-House Cases (1873), bread in Lochner v. New York (1905), and wheat in Wickard v. Filburn (1942). Currently, as eaters, cooks, growers, and policymakers seek sustainable food, food-and-Constitution debates continue. For recent examples, this Article analyzes disputes about pork, foie gras, shark fins, eggs, and ag-gag policies. It uses food studies approaches to identify what motivates food-and-Constitution jurisprudence. For advocates and courts, this illuminates what is at stake, when analyzing sustainable food sourcing, production means, and menu offerings. Full Article

50 Ariz. St. L.J. 651 (2018). Michael Allan Wolf. The new normal of environmental law will likely feature reduced enforcement of existing federal environmental statutes, elimination of federal regulations deemed anti-business, slashed funding for climate change response programs, and state preemption of local sustainability initiatives. Attorneys representing environmental interests will be “bringing a knife to a gunfight” should they continue to attack such stalwart principles of conservative jurisprudence as federalism, textualism, and originalism, or to seek the reversal of strong precedents that narrow standing, limit the reach of the Commerce and Necessary and Proper Clauses, and expand the scope of the Takings Clause to include allegedly confiscatory environmental and land use regulations. What is needed is a litigation strategy that goes beyond accommodating, adjusting, or massaging conservative jurisprudence. Counsel should advance…

50 Ariz. St. L.J. 455 (2018). Andrea J. Boyack. Sustainable real estate development is an essential component of intergenerational justice, in part because the real estate sector creates more than 20% of the world’s carbon emissions. Governments, recognizing that environmentally sustainable real estate development involves higher upfront costs, have encouraged green building by offering publicly funded incentives such as tax credits, grants, reduced approval fees, and streamlined permitting. Using market measurement innovations such as the Dow Jones Sustainability Index, investors can promote environmentally sustainable development by prioritizing real estate developers that embrace environmentally conscious practices. Even though real estate in general still underperforms in many other sectors in terms of its environmental sustainability, trends are encouraging. Commercial real estate has embraced green building as a concept, and the World Economic Forum predicts that approximately 55% of…

50 Ariz. St. L.J. 617 (2018). Melissa Mortazavi. Few industries in the United States carry the clout and capital of the oil and gas and agricultural sectors. Economic behemoths, their booms and busts shape the destinies of states, define national policy, and secure the life or death of small towns across the United States. Like it or not, the agriculture and oil and gas industries have strong lobbies and vehement and mobilized constituencies. Full Article

50 Ariz. St. L.J. 497 (2018). Paolo Davide Farah & Tivadar Ötvös. At first sight the potential discrepancy between competitive behavior of market participants, trade rules and the basic notion of sustainable development may seem to be of a negligible importance. However, during the interactions of market processes with sustainability goals through various levels of support, provided by public or private entities problems arise, even more so in the light of the commitments of the Paris Agreement, the United Nations Sustainable Development Goals (SDGs) and corporate social responsibility principles. This Article aims to address the most obvious overlappings between these areas under the coverage of legal provisions regulating the grant of state aid, subsidies and policies related to mutual cooperation of private subjects towards achieving sustainability. The purpose is to draw conclusions…

50 Ariz. St. L.J. 431 (2018). Sumudu Atapattu. From Shell Oil in Ogoniland, Nigeria to Chevron in Ecuador, and from Bhopal, India to Freeport-McMoRan in Indonesia, the world is replete with examples of corporate excesses and impunity. Time and time again we hear of gross human rights violations and severe environmental degradation associated with multinational corporations operating in developing countries. Extractive industries are just one category of businesses guilty of these excesses. Full Article

50 Ariz. St. L.J. 583 (2018). Gregg P. Macey. Legal scholars respond to novel risks and technologies such as hydraulic fracturing with a wide range of governance claims. Normative claims are rendered as to whether central (federal), devolved (state and local), dual (distinct and separate approaches), cooperative (shared authority), or dynamic (overlapping and collaborative) federalism should prevail in addressing a policy problem. But the means by which scholars distinguish among governance options are often overconfident. Some accounts claim that regulators lack resources and expertise, or they enjoy economies of scale. Others argue that state or federal actors can tailor decisions and serve as testing grounds, or they are unable to get such experiments off the ground. What these claims lack is an account of how governance emerges in response to a…

50 Ariz. St. L.J. 515 (2018). Steven Ferrey. The Supreme Court recently applied the Supremacy Clause of the Constitution to sustainable energy technology. Three recent decisions of the Supreme Court, as well as subsequent decisions of the federal circuit courts and a federal adjudicatory commission, reconfigured the constitutional doctrine preempting state regulation of sustainable power. Through these three decisions, the Court reduced Chevron deference afforded to regulatory agencies, a venerated legal doctrine. Full Article