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Fig Leaves, Pipe Dreams, and Myopia: Too-Easy Solutions in Environmental Law
In: University of Colorado Law Review, Forthcoming
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Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization
In: 88 Geo. Wash. L. Rev. 890 (2020)
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Herding Cats: Governing Distributed Innovation
Do-It-Yourself biology, 3D printing, and the sharing economy are equipping ordinary people with new powers to shape their biological, physical, and social environments. This phenomenon of distributed innovation is yielding new goods and services, greater economic productivity, and new opportunities for fulfillment. Distributed innovation also brings new environmental, health, and security risks that demand oversight, yet conventional government regulation may be poorly suited to address these risks. Dispersed and dynamic, distributed innovation requires the development of more flexible tools for oversight and government collaboration with private partners in governance.
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Carbon Dioxide Removal after Paris
In: 45 Ecology Law Quarterly 533 (;2018);
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Pope Francis' Encyclical on the Environment as Private Environmental Governance
In: George Washington Journal of Energy & Environmental Law (Forthcoming)
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President Trump's War on Regulatory Science
In: Harvard Environmental Law Review, Forthcoming
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Mismatched Regulation: Genetically Modified Mosquitoes and the Coordinated Framework for Biotechnology
For over thirty years, the Coordinated Framework for Regulation of Biotechnology ("Coordinated Framework" or "Framework") has guided federal regulation of biotechnology products. The Framework relies on a patchwork of laws to allocate oversight of biotechnology products among federal regulatory agencies. The Obama Administration's 2017 update to the Framework offered the potential to account for new technological developments and to respond to criticisms of the Framework. However, as illustrated by the government's response to the proposed experimental release of a genetically modified mosquito in the Florida Keys, this potential remains largely unrealized. Oxitec, a British biotechnology company, has genetically modified a mosquito so that male mosquitoes pass on a lethal genetic trait to any offspring. The Food and Drug Administration ("FDA") evaluated Oxitec's mosquito as an investigational new animal drug, determined that the proposed field trial would not significantly impact the environment, and turned the matter over to local authorities to decide whether to proceed with the release. While the federal government took these actions before finalizing the Framework update, the update did not significantly change the Framework's basic approach. As new techniques for manipulating and editing genes offer the prospect of additional genetically modified organisms ("GMOs"), the federal government's handling of the Oxitec mosquito offers a useful case study regarding the inadequacy of current legal frameworks for new biotechnologies. Ideally, the decision-making process for such technologies would assess and manage relevant risks, acknowledge and address sources of uncertainty and ignorance, engage stakeholders and the public and attempt to reflect their values, and build public confidence that the process is effective and legitimate.
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Preliminary Injunctive Regulation
In: Arizona Law Review, Vol. 58 (Forthcoming)
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Myths of Environmental Law
Environmental law is pervaded by myths—i.e., assumptions that are inaccurate, misleading, or false. These myths arise in various contexts, ranging from wetlands mitigation schemes and pollution credit trading programs to legal regimes premised on the concept of sustainability. This Article explores several myths of environmental law, their origins, and their roles. While political reasons explain in part the creation and prevalence of these myths, more is at work behind these myths than mere politics or failures to implement the law. The myths of environmental law facilitate the management of ecologically complex systems by providing a reductionist account of them. Beyond that, these myths serve important expressive functions in communicating social attitudes and values, legitimating social institutions and practices, and maintaining social solidarity. Awareness of myth's roles in environmental law can enable society to address legal shortcomings that are thereby revealed and to reject or replace those myths that undermine environmental law's goals.
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The Missing Pieces of Geoengineering Research Governance
In: Minnesota Law Review, Forthcoming
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FRACKING AND FEDERALISM: A COMPARATIVE APPROACH TO RECONCILING NATIONAL AND SUBNATIONAL INTERESTS IN THE UNITED STATES AND SPAIN
Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.
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