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Gold King Mine Spill: Environmental Law and Legal Protections for Environmental Responders
Get PDFOn August 5, 2015, EPA contractors working at the Gold King Mine in southwestern Colorado accidently released approximately three million gallons of contaminated mine water into the drainage of the Animas River. The water contained metals which created a bright orange plume that coursed down the Animas River and into the connecting San Juan River for many days, attracting nationwide attention and creating great concern for many local communities. The plume touched at least three states, three tribes, and numerous municipalities. The release fortunately did not prove an environmental catastrophe as many people feared at the time. However, it did inspire much angst, ire, investigation, and litigation.
The first part of this Article attempts to explain what really happened with the Gold King Mine spill, both the causes of the spill and the response to it. The Article then considers a number of federal environmental laws, including the Endangered Species Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), in order to assess alleged violations and demonstrate some of the important legal protections available to parties who engage in the challenging work of responding to mining contamination in the United States. The Article concludes with a look at protections for individual responders and hopes for cooperative efforts to address the mining contamination in the Animas River watershed and other contaminated mine sites across the country
Pure as Running Water: A Constitutional Argument for Utah’s Public Trust Doctrine
Get PDFWater rights in America, particularly in western states, have been a pervasive source of legal contention. The histories of these water rights, and the public trust doctrine more broadly, have created a tremendously complex area of law. This field of law is very old and draws on policy concerns stretching back to 100 B.C., overlapping federal and state powers and precedents, and what can only be described as one of the longest games of jurisprudential telephone in existence. As a result, anyone seeking to challenge a state statute, court opinion, or regulation, which they believe impermissibly restricts the public’s right to use the waters, has a big job ahead of them. The party must take on the daunting task of organizing hundreds of years of law into a coherent argument and accounting for every nuance which may lurk in a myriad of state and federal opinions published on the issue
Reversing Course on Environmental Justice under the Trump Administration
Get PDFThis Article traces how policy reversals in the first years of the Trump Administration implicate protections for diverse, low-income communities in the context of environmental pollution and climate change. The environmental justice movement has drawn critical attention to the persistent inequality in exposure to environmental harms, tracking racial and income lines. As a result of decades of advocacy, environmental justice has become an established, if not realized, principle in environmental law. Shifting positions under the Trump Administration now undermine this progress. To illustrate, this Article uses three exemplary contexts — agency transition, environmental law implementation, and international relations on climate change — to outline the impacts of reversing course on environmental justice
The Meaning of Judicial Impartiality: An Examination of Supreme Court Confirmation Debates and Supreme Court Rulings on Racial Equality
Get PDFThree years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach. However, as important as the concept of judicial impartiality may be, it is worth pausing to examine what speakers generally mean when they mention the term. In this article, I argue that at its core, the invocation of “judicial impartiality” in political discourse speaks to an ideal of fairness: an impartial judge is a person who acts in a fair manner toward all parties in a case appearing before them. My focus in this article is on examining the concept of judicial impartiality in this familiar sense, with the hope of providing some insight into the underlying norms that structure our public discourse around judicial appointments, judicial rulings, and responses by elected officials to judicial rulings. This article seeks to advance three claims. First, I claim that the divergent Democratic and Republican views on judicial impartiality—as illustrated the context of the Supreme Court confirmation hearings and debates for Chief Justice John Roberts and Justice Sonia Sotomayor—are rooted in each party’s distinct electoral coalitions and ideological histories. Secondly, I claim that notwithstanding these divergences, both Democratic and Republican-appointed justices on the Supreme Court share a common institutional environment at present of judicial uncertainty. This shared institutional condition, I argue, alters how Democratic and Republican-appointed justices are able to implement their respective visions of judicial impartiality in actual adjudication. On this point, I discuss some of the Roberts Court’s recent rulings on race and equal protection to help anchor the examination of judicial impartiality in constitutional doctrine. Finally, in the final portion of the article, my argument takes a normative turn in making my third claim: accepting that some degree of partiality is inevitable in the judicial role, judicial impartiality is best understood as denoting a consistent, good-faith engagement with the claims and interests of those who lie outside the social groups that are aligned with a judicial actor. I conclude the article with a few words on what this conception of judicial impartiality might imply, or even demand, of Democratic and Republican-appointed judicial actors seeking to uphold the ideal of judicial impartiality in the present time
The Legalization of Restorative Justice: A Fifty-State Empirical Analysis
Get PDFThis Article addresses the increasing formal legal nature of restorative justice in the United States. Over the last three decades, a substantial body of research has demonstrated the ways in which restorative justice offers an alternative societal response to crime and harm. It has also examined how restorative justice empowers individuals and groups to address violence, respond to social, political and economic injustice, and engage in resistance to existing structural inequities. Yet a prominent gap in the field exists: a comprehensive theoretical and empirical examination of the codification of restorative justice in state law. Studies of this nature are essential given restorative justice’s proliferation in formal law, as well as operationalization within multiple public systems. Drawing on data from an original 50-state analysis, this Article argues that the current degree of legal internalization of restorative justice indicates the emergence of a new legal norm. These findings call for a critical reexamination of current perceptions of restorative justice normatively and empirically. Beyond provoking new directions in research, these findings should be of significant interest to reformists seeking to advance laws, policies, and systems that promote fairness, equity, and justice and to practitioners who increasingly interact with formal restorative processes. The internalization and diffusion of restorative justice in state law has heightened the need for judges, attorneys, and advocates to not only understand restorative justice theoretically, but pragmatically as they must now make decisions regarding the use of restorative justice at different stages of legal processes
Clean Energy Equity
Get PDFSolar, wind, and other clean, renewable sources of energy promise to mitigate climate change, enhance energy security, and foster economic growth. But many of the policies in place to promote clean energy today are marred by an uneven distribution of economic opportunities and associated financial burdens. Tax incentives for renewables cost American taxpayers billions of dollars every year, yet the tax code effectively precludes all but the largest banks and most profitable corporations from reaping the benefits of these tax breaks. Other policies, such as renewable portfolio standards that set minimum quota to create demand for renewable electricity require such high levels of market expertise and financial acumen that they engender similarly disparate social impacts—all in the name of an environmentally sustainable energy future.
To date, policymakers and scholars have focused primarily on the efficacy and, more recently, the efficiency of clean energy policy. This Article makes the case that the next generation of policies should incorporate equity as another first-order consideration in policy design and implementation. Properly defined as the commensurate matching of costs and benefits, equity offers a more reliable metric for distributional impacts than the multitude of competing, normatively charged notions of fairness that currently dominate the public discourse.
Empirical assessment and qualitative analysis of today’s leading clean energy policies reveal widespread issues related to equity. Insights gleaned from a representative sampling of the global policy potpourri yield valuable design recommendations for the next generation of clean energy policies—a generation that, ideally, will be at once effective, efficient, and more equitable.
As the greening grid becomes ever more interactive, so, too, should the process that produces the policy landscape driving the clean energy transition become more participatory. This Article suggests Elinor Ostrom’s polycentricity model as a powerful governance tool to help produce more equitable clean energy policies
Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era
Get PDFAs the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether political factors predict retirement.
This Article identifies key reasons past studies have found Justices’ retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices’ success in obtaining like-minded replacements.
The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice’s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire while presidents who share their ideology are in office
Seeking Insurance Parity During the Opioid Epidemic
Get PDFPrivate insurance covers almost 40 percent of people with opioid addiction. Yet, amid an epidemic with profound consequences for individual and public health, private insurers continue to fuel addiction by favoring addictive but affordable pain therapies over nonaddictive ones and by placing unreasonable, sometimes unlawful, hurdles and delays in the ways of addiction treatment. Action must be taken now to address these harms. Laws like the ACA and the MHPAEA need greater enforcement, while gaps in these laws can and should be addressed through broader federal and state initiatives. Private insurers must be regulated, and swiftly, to ensure that people with SUD and our nation stand a chance of recovering from this epidemic
Trying Times: Conservation Easements and Federal Tax Law (April 2019)
Get PDFSince 2006, the Tax Court, District Courts, and Circuit Courts have collectively issued more than one-hundred decisions relating to the federal charitable income tax deduction for the donation of perpetual conservation easements. This outline discusses these court decisions and other developments in the conservation easement donation context. The outline was prepared for a May 3rd, 2019, program of the same name at the University of Utah S.J. Quinney College of Law. Presenters at the program were Nancy A. McLaughlin, Professor of Law, University of Utah S.J. Quinney College of Law; Stephen J. Small, Attorney at Law, Law Office of Stephen J. Small, Esq., P.C.; Karin Gross, Special Counsel, IRS Office of Chief Counsel; Mark Weston, Appraiser, AQB Certified USPAP Instructor, and Director, Division of Conservation, Colorado Dept. of Regulatory Agencies; and Wendy Fisher, Executive Director, Utah Open Lands
Shareholder Activism and Stakeholder Engagement Strategies: Promoting Environmental Justice, Human Rights, and Sustainable Development Goals
Get PDFThe United Nations 2030 Agenda for Sustainable Development is an ambitious plan of action for people, planet and prosperity which seeks to promote peace and eradicate poverty. The Agenda\u27s goals cannot be reached without private sector participation and changes to certain business practices that contribute to adverse environmental and human rights impacts. When natural resources are managed responsibly the resulting economic development can help to eradicate poverty. However, when natural resources are managed poorly, certain extractives industry sector practices can generate or exacerbate human rights abuses, environmental degradation, corruption, and conflict. Fossil fuels are connected to the changing climate. The practices of the extractives industry sector and our patterns of consumption are implicated in the expected adverse social impacts and environmental injustices associated with the changing climate such as displacement and forced migration. For the Sustainable Development Goals (SDGs) set forth in the Agenda for Sustainable Development to be reached by 2030, action on climate change and patterns of corruption will require pressure from the public as well as partnership with the private sector. This paper explores the role of economic actors and public/private multi-stakeholder initiatives as partners in promoting action on climate and curbing corruption to protect human rights. It plots points of convergence between the SDGs and the priorities of socially responsible investors, the efforts of human rights and transparency initiatives regulating the extractives industry sector, and global principles intended to guide responsible business conduct. It explains how certain complementary points of convergence could create opportunities for business enterprises to address environmental and social challenges through aligning business incentives with the aims of the SDGs. First, the paper will provide an analysis of selected international law, policy, and governance instruments relevant to achieving the SDGs with reference to the role of the extractive industry sector in posing risks to human rights and environmental quality. The human right to a healthy environment and the responsibility of business enterprises to respect human rights is also addressed. Next, the paper will present examples of increasing investor interest in environmental and social issues examining shareholder proposals put forward by institutional investors seeking information about the financial implications of these issues for firms. The paper will then offer an overview of multi-stakeholder and extractive industry initiatives that provide an institutional framework for managing corruption and conflict. Finally, the paper concludes with a call for a consideration of shared values solutions to challenges and an increased appreciation of a range of ways to advance the SDGs by creating aligned incentives for economic actors