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Independent Environmental Regulator--The Transformation India Needs in Environmental Governance
Get PDFIf we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance.
In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set up a national regulator to appraise projects, enforce environmental conditions for approvals, and impose penalties on polluters in accordance with section 3(3) of the Environment (Protection) Act, 1986. The court further highlighted the distinction between an environmental court or tribunal and a regulatory body with the latter serving as a proactive institution with the power conferred upon it to frame statutory rules and regulations. Post-judgment, the Environment Ministry agreed to the court’s order to set up an independent regulator. However, eleven years after this judgment, there is no independent environmental regulator in India.
In the past couple of years, the country has witnessed several changes to the environmental regulations, particularly regarding clearance mechanisms, with the government advocating for the “ease of doing business.” Several concerns have been raised about these changes, especially on the issues of impact assessment, inadequate public consultation, lack of transparency and credibility in the mechanism, and the non-existence of a proper post-clearance mechanism. These concerns further illustrate the need for an independent environmental regulator.
This Essay is an attempt to advocate for the need for an independent environmental regulator in India by making comparisons to other similar institutions globally and outlining its primary functions and responsibilities. The aim of this piece is to improve environmental governance in India
Standing Without Injury
No full textThis Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.
Part III considers the potential implications of this alternative approach for justiciability across a range of contexts, with a particular emphasis on ways in which the Newsom approach of standing without injury would deviate from current law. It then evaluates the extent to which Judge Newsom’s proposed reformulation of standing would adequately account for the failings of existing doctrine. Eliminating injury and focusing exclusively on whether a given plaintiff has a cause of action to bring their claim would likely simplify the standing inquiry. The theoretical justification for such a requirement may even be more coherent than the contours of the existing Article III inquiry. Imposing Article II limitations on the ability of private litigants to enforce federal law where authorized by Congress, however, could invite the same sort of policy-influenced assessments as does existing law and may turn out to be no more workable than the test left by Lujan. After considering such concerns, the Article concludes.
This abstract has been taken from the article\u27s introduction
The Private Litigation Impact of New York\u27s Green Amendment
No full textThe increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”
However, the power of the NYGA and similar green amendments turns on judicial interpretations of their scope. In the first decision to reach the issue, a New York trial court held, with little analysis, that the NYGA provides no private rights against private polluters. This conclusion could severely limit the reach and significance of state environmental rights.
This article examines a single question: Does the NYGA grant private rights that are enforceable against private parties? In answering this question, we examine the 50-year history of private litigation under green amendments, the substance and historical context of the NYGA, and the broader structure of New York’s constitution and environmental law. We conclude that the New York trial court got it wrong, and that the NYGA does provide a private cause of action against private parties. We further assess the indirect impact of constitutional environmental rights on private litigation, and conclude that the NYGA will have an enormous impact on private litigation generally, irrespective of whether New York’s courts reject private litigation under the NYGA. This discussion provides a novel evaluation of the shadow that constitutional changes cast on non-constitutional law
Beijing Children\u27s Legal Aid and Research Center in Beijing, China
No full textLily Frautschi [1L] will contribute to BCLARC’s work providing free legal aid to minors and migrants in China. The Center conducts empirical research to facilitate justice for children and migrants, in addition to working more generally in the area of public interest law
American Chemistry Council Global Affairs Division in Washington, D.C.
No full textSam Finkel [1L] will research global environmental, economic and trade issues in support of ACC’s work with over 190 companies engaged in the world of chemistry and innovation. ACC’s target areas include health, sustainability and productivity
Beijing Children\u27s Legal Aid and Research Center Zicheng Public Interest Lawyers in Beijing, China
No full textSarah Cox [1L] will contribute to BCLARC’s work providing free legal aid to minors and migrants in China. The Center conducts empirical research to facilitate justice for children and migrants, in addition to working more generally in the area of public interest law
Can Judges Help Ease Mass Incarceration?
Get PDFA scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend
The Real Wrongs of ICWA
Get PDFHaaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage and experience incompatible with a state-preferred identity and destroying children’s relationships and worlds in order to transform them in service to ideological and political aims, under the guise of child saving
Originalism v. Originalism: How James Madison\u27s Understanding of the Establishment Clause Can Help Combat Christian Nationalism
Get PDFThis Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute could affect future Establishment Clause cases. Part V will discuss the feasibility of a federal statute being passed and the alternative option of secular activists passing similar statutes at the state level.
This abstract has been taken from the author\u27s introduction
The Uncertain Future of Restorative Justice: Anti-Woke Legislation, Retrenchment and Politics of the Right
Get PDFAs diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the future of school-based restorative justice within the expanding politics of the right and resurgence of carceral logics in public education? In posing this inquiry, this Article is guided by two core purposes. First, to amplify the increasing precariousness of educational equity and access for students who have long existed at the margins of public schools under anti-Black regimes. Second, to sound an alarm as to the expanding reality that school-based restorative justice is not only at risk, but under threat. From these vantage points, this Article joins with scholars, activists, and communities organizing for democracy and liberation in the face of a renewed ecosystem of punishment and exclusion promulgated in the name of school safety, choice, and parental rights