SelectedWorks @ Widener University Commonwealth Law School
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Judicial Remedies for Climate Disruption
No full textThis paper focuses on climate change cases that seek science-based remedies specifically related to climate mitigation (i.e., actions to reduce greenhouse gas emissions or draw down atmospheric carbon), and climate-change adaptation (i.e., actions to reduce the negative impacts of climate disruption on human and natural communities). It focuses on the forms and terms of relief sought by plaintiffs or petitioners.This paper provides an overview of remedies most commonly sought in climate change litigation, and a few that are less commonly sought. They are: 1) injunctive relief, 2) writ of mandamus, 3) declaratory relief, 4) remand, 5) vacatur, 6) damages, 7) civil penalties, 8) accounting, and 9) award of costs and attorney fees. We focus on U.S. cases, both federal and state, with some references to key decisions rendered in other countries for comparative purposes. We conclude that litigants and courts are capable of crafting remedies to address GHG emissions and climate change adaptation without getting bogged down in judicial management and enforcement issues
The Lawyer\u27s Duty of Competence in a Climate-Imperiled World
No full textThe United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as the client’s needs and the perils in the real world change.The Article first examines the concept of competence for lawyers and other professionals and provides examples of how professional competence evolves under changing circumstances. It explores the mandate and structure of Model Rule 1.1 and identifies the related issue of professional malpractice. Then it applies the concept of competence to the legal professional’s role as new facts and conditions concerning climate change emerge. It also describes guidance on these responsibilities issued by the Law Society of England and Wales in early 2023. The Article next describes the benefits of systems leadership skills and capacities as a means to effectively practice law as standards of competence evolve. We are not arguing that leadership is included in the duty of competence. But the increasing pace of the climate crisis, and the increasingly sophisticated tools and practices that lawyers now have to address the crisis, expand what lawyers should reasonably do for clients. Finally, the Article identifies principles for climate-competent lawyering
Evolution of U.S. Climate Law and Policy
No full textThis paper provides an overview of the development of U.S. government law and policy concerning climate change. It is from Global Climate Change and U.S. Law, Third Edition (Michael B Gerrard, Jody Freeman, and Michael Burger eds. 2023). U.S. government efforts to address climate change can be grouped into five categories: (1) measures promoting federal climate change research, which provide the foundation for later developments; (2) environmental, energy, and natural resource laws; (3) other laws and policies, including those involving administrative practice, financial regulation, procurement and property management, technological innovation, and economic development; (4) the U.S. role in international agreements concerning climate change; and (5) new congressional efforts to pass comprehensive climate change legislation to reduce greenhouse gases, including the Inflation Reduction Act and the infrastructure Investment and Jobs Act . This paper focuses on key developments at the national level, particularly those intended to reduce greenhouse gas emissions
ABA encourages climate-conscious lawyering at cop27
No full textThe American Bar Association (ABA) partnered with other bar associations to encourage climate-conscious lawyering at the recently concluded international climate conference in Egypt. The ABA participated in first-ever events with the International Bar Association (IBA), the Brazilian Bar Association (OAB), and the Law Society of England and Wales (LSEW) on their roles and the role of lawyers generally in addressing climate change. This was the 27th annual meeting of the Conference of the Parties to the U.N. Framework Convention on Climate Change (COP27)
Growing Carbon Credits: Strengthening the Agricultural Sector’s Participation in Voluntary Carbon Markets through Law and Policy
No full textIn the face of a global climate crisis, the United States is not relying upon a command-and-control environmental regulatory system to prevent cataclysmic consequences. Instead, the United States is accepting voluntary greenhouse gas (GHG) emissions reduction pledges from the private sector that have little hope of being achieved without substantial emissions reductions, significant infrastructure improvements, and the purchase of carbon offset credits from voluntary carbon markets (VCMs). However, VCMs, a form of private environmental governance (PEG), are only a viable solution to the climate crisis if there are high-quality credits that function as valid representations of GHG emissions reductions. The agricultural sector is expected to play an important role in generating carbon credits through the adoption of carbon sequestering production methods, but farmers are not committing to sow the seeds of carbon credit generation. At this critical juncture, farmers’ concerns about carbon credit generation need to be understood and addressed in a way that maintains market flexibility while ensuring the integrity of the credits. In the last year, there have been multiple legislative proposals offering varying forms of public governance support for the private carbon marketplace. This government intervention is reflective of a new public-private hybrid form of environmental governance for VCMs. This Article seeks to contribute to the theoretical and empirical literature of PEG by evaluating the proposed forms of government support for VCMs and analyzing how a hybrid public-private environmental governance structure will facilitate the performance of VCMs. To explain how hybrid public-private environmental governance for VCMs will encourage the participation of the agricultural sector, this Article is structured around three propositions. The first is the agricultural sector’s central role in addressing climate change. The second is that VCMs are the preferred mechanism in the United States to facilitate emissions reductions pledges. The third proposition is that competing VCM standards and low carbon credit prices have created barriers to market entry for the agricultural sector. The recent passage of the Inflation Reduction Act and the revised Growing Climate Solutions Act have the potential to support the private carbon marketplace through funding for regenerative agricultural practices and by establishing a trusted source of credit generation information. To be effective, however, this public-private environmental governance will need to create a cohesive and transparent marketplace by unifying credit standards among markets, reducing transaction costs, and improving the economic incentives for the agricultural generation of carbon credits
From Clair to Annalise: How to Get Away with Being a Black Woman Lawyer on Television
No full textClair Huxtable was the iconic mother, wife, and lawyer on The Cosby Show, an American television sitcom that premiered in September 1984. She appeared to be the perfect lawyer—partner in a law firm, prepared for every case, triumphant in every case, and never stepping over, or anywhere near, the boundary line of legal ethics—all while mothering children ranging in age from 5 to 20 years and supporting her equally successful obstetrician/gynecologist husband. In all her perfection, Clair presumably inspired young women to become lawyers during the middle 1980s through the early 1990s, and beyond. Clair Huxtable was a tough act to follow. The Black women lawyers who came after her on scripted television brought more realism to what it really means to be Black, woman, and a lawyer. These characters have helped direct the professional identities of their real counterparts in the decades since Clair entered our living rooms. This article explores the images of Black woman lawyer characters on scripted television since 1984 and how those images compare or contrast with Clair Huxtable and real-life Black women lawyers
The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis
No full textNearly every U.S. state has environmental provisions in its constitution. These provisions cover a wide range of issues concerning the manner in which the environment and natural resources are to be governed (e.g., public funding, eminent domain, public trust, access to water, legislative responsibility). But only six declare a right to a quality environment. These are Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania. This chapter provides a detailed examination of the constitutional text and case law in each of these states, and analyzes the similarities and differences among them. This analysis shows the wide variety of ways in which even similar provisions have been interpreted and applied at the state level. It shows that while four of these states treat their right to a certain quality environment as judicially enforceable, two (Illinois and Massachusetts) do not. Among the states with a judicially enforceable right, Hawai’i and Montana have the most well developed bodies of case law. This analysis also shows similarities and differences in the ways that these constitutional provisions both guide and constrain state authority under statutes and regulations. Perhaps the most basic issue is whether environmental rights should have actual parity with other constitutionally protected rights. These states have answered that question in varying ways
Governing for Sustainability: Accelerating the Transition to a Sustainable Society
No full textSustainable development may be one of the most important and potentially transformational ideas to come out of the last century. The ultimate objectives of sustainable development are freedom, opportunity, justice, and quality of life for everyone in this and future generations. While the United States has a substantial body of environmental and social protection laws, we are far from being a sustainable society. The question is what to do.This book provides a detailed set of recommendations for federal, state, tribal, territorial, and local governments, as well as the private sector and civil society organized around the United Nations\u27 Sustainable Development Goals. The various contributions that personal behavior can make toward both public and private governance are included as well. These recommendations would help make America a better place for all. Every American has a role to play
Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity
No full textThe right to vote of an individual who has been convicted of a felony has historically been subject to state law restrictions. Currently, approximately 5 million individuals in the United States are estimated to have their right to vote limited due to a felony conviction. Although forty-eight out of the fifty states currently restrict the right of an individual convicted of a felony to vote, these restrictions are remarkably disparate and non-uniform with respect to voter disqualification. Moreover, these statutes continue to evolve in a haphazard manner. Consequently, the extent and duration for which an individual convicted of a felony will have his right to vote suspended or lost will often depend on his state of residence as opposed to the seriousness of his criminal conviction
Martinez-Cuevas V. Deruyter Brothers and COVID-19: Is it Time to Re-examine Farmworker Labor Protections?
No full textIn the fall of 2020, in the midst of the COVID-19 global pandemic, a closely divided (5-4) Washington Supreme Court, in Martinez-Cuevas v. Deruyter Bros. Dairy Inc.1, held that dairy workers, despite a state wage and hour law2 specifically exempting agricultural workers, are entitled to overtime pay. The Court based its decision, in part, on the dangerous nature of the work performed by the dairy workers.3 Although the decision was specific to dairy workers in Washington, the majority of U.S. farmworkers are not entitled to overtime wages while working jobs that are generally considered dangerous and have been made more so during COVID-19