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Abstract:
In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant's misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court's current framework and the purposes of punitive damages justify departure from that ratio. This Article uses actions involving intentional torts on the one hand and private party actions involving environmental harm on the other to illustrate how lower courts have failed to fully implement the exception to single-digit ratios. This Article proposes that in conducting a due process analysis of punitive damages, courts should focus on the existence of uncompensated harm to either depart from single digit ratios or, in the alternative, calculate punitive damages based on the full amount of harm even if that exceeds the compensatory damage award. To avoid windfalls to plaintiffs in cases involving harm to public natural resources, state legislatures or state courts should utilize a split-recovery approach to direct a significant portion of punitive damages based on public harm to governmental or nonprofit coffers for environmental remediation. Such an approach is consistent with due process while still fulfilling the purposes of punitive damages.

punitive damages, tort, environmental law, natural resources, due process, damages, Exxon Valdez

Abstract:
As the world struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is "carbon capture and sequestration" (CCS) which consists of capturing carbon dioxide (CO2) emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention paid to how to structure legal liability for the short-term or long-term risks associated with the geologic sequestration of CO2 in connection with CCS. Until now, federal and state legislators, when they have acted at all, have appeared to be in a rush to limit corporate liability for potential harm in order to encourage the development of CCS. We take a different approach. In this Article, we survey the existing environmental law and tort law liability regimes that may cover potential harm from escaping or migrating CO2. We conclude that while existing liability regimes are insufficient on their own to govern the CCS industry, existing federal and state environmental and tort liability can provide important risk management tools and serve as safeguards to private parties and state and local governments in the event of harm. Thus, state and federal legislation specific to CCS should leave in place this basic liability for full-scale commercial CCS projects. We also propose an adaptive governance model at the federal level for integrating several different compensation mechanisms including bonding, insurance, and pooled federal funding into commercial CCS project management to better provide financial security to investors without destroying existing liability protections for those who may suffer harm from CCS. This proposal offers a starting point for developing a model to integrate and manage liability for the nascent CCS industry.

carbon, capture, sequestration, climate change, global warming, tort liaiblity, insurance, bonding, property rights, geologic sequestration

Abstract:
At common law, very minimal actions were needed to establish the 'exclusive possession' necessary to acquire land by adverse possession when the land was 'wild' or undeveloped. This minimal burden to adversely possess wild lands, which is still the general rule today, stands in contrast to the much higher standard necessary to adversely possess developed lands. This article explores why the lesser standard for adverse possession of wild lands remains a threat to many of the millions of acres of land in this country that are still undeveloped. This article then proposes that courts modernize the adverse possession doctrine to expand traditional notions of use and possession in the context of wild lands to reflect the growing need for conservation in today's world.

Adverse Possession, Conservation, Environmental Law, Property, Undeveloped

Abstract:
Strict liability for environmental contamination has become a fact of life in the past twenty years since the 1980 enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and similar state laws imposing strict liability for the release of hazardous substances. Since that time, awareness of the widespread nature and risks of environmental contamination and the need for strong tools to remedy those conditions has permeated the public consciousness, the business community, and the courts. As a result, our society has come to live with the existence of widespread strict liability for environmental contamination under various federal and state statutes, even if many believe the current statutory liability scheme is misguided or ineffective.

Over the same period of time, however, some scholars have argued that courts have grown reluctant to apply common law strict liability in general under either the doctrine of Rylands v. Fletcher or Sections 519 and 520 of the Restatement (Second) of Torts, which impose strict liability for abnormally dangerous activities. These commentators conclude that, apart from cases involving blasting and a few other historic applications, the current trend is for courts to reject the expansion of strict liability in favor of negligence as the dominant tort theory. The existence of these two seemingly divergent trends raises the question of whether CERCLA's enactment and implementation have influenced courts' willingness to impose common law strict liability in environmental contamination cases, even if the doctrine is not otherwise expanding.

That CERCLA may be impacting common law strict liability is significant and somewhat unexpected because the Restatement (Second) of Torts does not identify the existence of a federal or state statute governing the conduct at issue as a factor to consider in determining whether the activity is abnormally dangerous. In other words, if courts are being influenced by the existence of CERCLA and state strict liability statutes when considering application of the common law strict liability doctrine to environmental contamination cases, they are doing so for policy reasons beyond the black letter law of Rylands or the Restatement.

A review of post-CERCLA court decisions involving environmental contamination and claims for common law strict liability reveals that even though the existence of a state or federal strict liability statute is not one of the factors a court is directed to consider under the Restatement, courts consistently refer to the existence of such a statute or the general importance of addressing hazardous waste problems as a justification for applying strict liability. These cases show that while the prevailing trend among courts may be to reduce the reach of common law strict liability, the trend in environmental contamination cases appears to be the opposite.

This Article argues that it is both appropriate and desirable for courts to consider state and federal statutes and other indications of public policy when determining whether an activity is abnormally dangerous. This can be best accomplished by revising the current draft of the Restatement (Third) of Torts to include the existence of a state or federal statute imposing strict liability for the activity as a factor in determining whether or not the activity is abnormally dangerous under the common law.

Abstract:
The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated 'economic development takings' the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, or other natural resources. In fact, the Supreme Court's deference to such 'natural resource development takings' in the early part of the 20th century was the base upon which the Court built its decision in Kelo. This Article first explores the relationship between Kelo-type economic development takings and natural resource development takings and argues that the national reaction to Kelo has focused too narrowly on government takings and ignored the impact of private takings. It then uses recent property reforms in the Interior West to explore the broader implications of the role of eminent domain in reallocating property in society and proposes some additional reforms for natural resource development takings.

public use, takings, Interior West, property reforms, split-estate, economic development, eminent domain, fifth amendment, due process, natural resources, oil, gas, coalbed methane, Kelo

Abstract:
Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the new federalism, such progressive common law development at the state level may be particularly timely and appropriate. This article uses these principles to provide a new perspective on the evolution of environmental law from its common law beginnings, to the flurry of federal statutes and regulations beginning in the 1970s, to present-day state and local environmental protection initiatives, and to argue for increased emphasis on state common law in modern environmental protection efforts.

Environment, Federalism, Common Law, Tort, Natural Resources, Environmental Law

Abstract:
The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection that relies heavily on state constitutional law and environmental statutes to give additional content and power to this ancient common law doctrine. By using this new theoretical framework based on recent judicial trends, the statutory, constitutional, and common law manifestations of public trust principles can all become mutually reinforcing rather than remain trapped in the either-or dichotomy engrained in prior scholarship.

Public Trust Doctrine, Environment, Property, Environmental Rights, Environmental Protection, Constitutional Law, Common Law, Natural Resources

Abstract:
In cases involving both express and implied preemption, the Supreme Court and lower courts have applied a "presumption against preemption" to preserve state law in areas of "traditional state concern." In the decades since Congress first enacted major health, safety, and environmental legislation, federal agencies in the public health and environmental areas have created massive federal regulatory programs to fulfill Congressional directives. As a result of these agency developments, courts and scholars are forced to consider not only the original Congressional language relevant to preemption, but also subsequent actions taken by federal agencies to implement Congressional mandates to determine whether there are exclusive federal interests that may preempt traditional state authority. Based on a study of recent state efforts to control greenhouse gas emissions, I suggest that in cases where Congress has expressed an intent to preserve state law in the federal regulatory framework governing areas of "traditional state concern," such intent should be construed not only to preserve state law in its current form but also to act as an implied delegation to states to fulfill federal as well as state policy goals going forward. Under such an approach, where states have pursued new and innovative approaches to implement Congressional goals, such efforts should serve to counterbalance any federal agency efforts to carve out areas of exclusive federal interest to preempt state law.

federal preemption, state law, federalism, climate change, global warming, environmental law, air pollution, supremacy clause, agency action, EPA, FDA

Abstract:
This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement this technology, future CCS operators must be able to access hundreds of millions of acres of "pore space" roughly a kilometer below the earth's surface in which to store CO2 for hundreds to thousands of years. Here, we explore questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, we propose a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 storage.

climate change, carbon sequestration, carbon storage, geologic carbon sequestration, property rights, fifth amendment, takings, physical takings, regulatory takings, natural gas act, underground waste injection, secondary oil and gas recovery

Abstract:
This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights, it was simultaneously cutting back on the ability of states to provide their citizens with tort rights and remedies through preemption doctrine and due process limits on punitive damages. This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that Congress and the Supreme Court have shifted from a private law to a public law view of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed Congress and the Court to more easily displace state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.

tort law, federalism, preemption, punitive damags, privacy rights, publicity rights, Supreme Court, Congress, consumer protection, environmental protection

Abstract:
The Food Quality Protection Act of 1996 was heralded with great expectations as a means to increase protection for children from the adverse effects of pesticides. However, its implementation has not yet created a sufficient structure to significantly protect children from harmful pesticide exposure. Moreover, targeted lawsuits against EPA to improve implementation of the FQPA's key provisions have had little success as a result of procedural administrative law hurdles. By contrast, recent developments in state law tort actions to recover damages for pesticide-related harms, notably the Supreme Court's 2005 Bates v. Dow Agrosciences decision, support the proposition that state law tort actions may provide a vehicle to increase protection for children's health.

In order to accomplish this goal, environmental and children's nonprofit organizations should work more closely with plaintiffs' lawyers representing children in pesticide exposure cases to present the best causation data available. Moreover, where good data is not available, such groups can help courts understand the nature of the scientific uncertainty and encourage them to implement the precautionary principle inherent in the FQPA. Plaintiffs can then argue that when currently unavailable causation data could be reasonably obtained, but the defendant has not conducted the testing to obtain such data, the plaintiff has established its evidentiary burden under Daubert and the burden of proof on causation should be shifted to the defendant. In this way, the tort system can encourage positive developments in testing, product availability, and regulation of pesticides as they impact children's health.

Children's Health, Daubert, Pesticides, Tort, Burden of Proof, Evidence, Products Liability, Common Law

Abstract:
Every year, nearly 5 billion tons of pesticides are intentionally applied to the American landscape. Pesticides have eradicated deadly diseases worldwide and allowed the United States to become an agricultural giant, but have also created a significant risk to human health and the environment. The high stakes at issue have caused the federal government to create a comprehensive system of pesticide regulation, which has been subject to a significant amount of litigation.

The bulk of this litigation has tended to fall into two distinct categories. The first category of cases (the FIFRA Preemption cases) consists of claims by pesticide users against pesticide manufacturers for personal injury or damaged crops where the key issue often involves whether such claims are preempted by FIFRA - the federal pesticide law. The second category of cases (the Pesticide Land Use cases) generally involves claims by non-pesticide users against pesticide users (usually neighboring landowners or aerial pesticide applicators), for property damage, crop damage and/or personal injury.

Although the Pesticide Land Use cases seek damages similar to the FIFRA Preemption cases, the Pesticide Land Use cases rarely discuss FIFRA and focus heavily on common law negligence claims with far less emphasis on related claims of trespass, nuisance and strict liability. Not surprisingly, unlike the FIFRA Preemption cases which often look to unifying principles of federal pesticide law to reach a result, the Pesticide Land Use cases vary significantly in terms of the theories used and results reached even though they involve the same types of FIFRA-regulated pesticides. As a result, there is significant unpredictability in these cases, making it difficult for lawyers to properly advise their clients on the merits and select appropriate experts, and difficult for courts to choose a framework for resolution, resulting in inconsistent results both within and between jurisdictions.

This Article explores ways in which the Pesticide Land Use cases can benefit from some of the uniformity principles that permeate the FIFRA Preemption cases in the context of negligence claims. More important, this Article proposes that common law negligence is a far less useful mechanism to resolve these cases than are other common law claims such as trespass and nuisance, as well as underutilized state and federal statutory claims.

Abstract:
This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions. For decades now, states and local governments have been at the forefront of developing “green building codes” to reduce the energy use and GHG emissions associated with buildings. At the same time however, states are extremely limited in their authority to mandate more energy efficient appliances in buildings because of federal law preempting innovative state standards in this area. After providing a detailed discussion of state and local green building efforts and the history of federal preemption of appliance efficiency standards, this Article explores recent scholarly work in the area of “dynamic” or “polyphonic” federalism to argue for a new approach that allows for state innovation without disrupting the national market for appliances. This Article then suggests various options for revising the federal laws governing appliance efficiency standards that recognize and build on the expertise states have gained in reducing energy use and GHG emissions without creating an unworkable “50-state patchwork” of regulation.

federalism, preemption, appliance efficiency, green building, LEED, climate change, greenhouse gases

Abstract:
After decades of unwise water policies and practices, water resources in the United States are increasingly overdrawn and overwhelmed. The warning signs of the problem may be obscured for those who see running tap water from their kitchen sink or glance cursorily at a lake. But upon closer examination, the signs are clear – wells are depleted, and river flows are low – and the projected trends are not reassuring. Demands for water resources from urban and suburban development are competing with demands for aquatic ecosystem restoration and preservation. Climate change promises to exacerbate the problem by fundamentally altering the fresh water cycle. Yet this confluence of factors provides the opportunity to take advantage of the revived environmental consciousness pulsing across the country.

Part of this consciousness involves restoring the view of public and state ownership of certain natural resources that benefit all. In legal terms, this concept is known as the public trust doctrine. This doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. A clear declaration of public ownership, the doctrine reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of present and future generations and embodies key principles of environmental protection: stewardship, communal responsibility, and sustainability.

While water resources protected under the doctrine may not be monopolized by private entities, they nevertheless face great strains today from private use and misuse. Combating these abuses of shared water resources is a major task, particularly when private economic considerations are often given preference over public environmental values. But across the nation, grassroots, regional and national organizations are fighting to force state governments to protect the nation’s water resources for future generations. The purpose of this manual is to share the successes and lessons of these efforts, so that environmental organizations across the nation may consider replicating and expanding this work – to better accomplish their core mission of protecting the nation’s waterways.

The Manual:

• Introduces public interest environmental groups and others to the public trust doctrine and familiarizes them with both the opportunities and limitations its application offers in protecting water resources;

• Identifies for environmental attorneys legal arguments where the doctrine is most relevant to existing state water law and water resource protection;

• Analyzes successful applications of the public trust doctrine and public trust statutes through case studies of California, Hawai’i, and Vermont and in an accompanying 50-state index of constitutional and statutory provisions and notable cases related to the public trust doctrine; and

• Encourages reconsideration and reassessment of this ancient legal doctrine to confront the challenges facing modern freshwater management at the state level.

While the public trust doctrine is neither a panacea nor an adequate substitute for comprehensive water regulations, it is both a powerful legal tool and an effective paradigm for water resources management. The public trust doctrine embodies the ethical touchstone from which all water resource decisions should be made: namely, that water resources belong to the public. They are not commodities to be sold but natural assets to be protected, and we have a collective responsibility to preserve water resources for future generations.

public trust, water, groundwater, riparian, prior appropriation, Fifth Amendment takings, background principle