The Tulane Environmental Law Journal (TELJ) publishes biannually in the winter and spring of each year. This section contains information about our most recent publications. Our issue archive allows you to review the titles and authors of past articles, as well as TELJ's past mastheads and advisory boards.
Volume 28, Issue 2, Summer 2015
The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone
Oliver A. Houck, Professor of Law, Tulane University
Natural Resource Restoration
Allan Kanner, Kanner & Whiteley, L.L.C.
Public trustees at the state, federal, and tribal level are tasked with ensuring that those responsible for destroying or damaging natural resources sufficiently compensate the public for its loss. Since the late 1980s, a consensus has emerged that the preferred remedy for natural resource damages is to restore injured resources to their original condition or replace them with equivalent resources, in addition to creating additional resources to compensate for the time during which the injured resources did not provide ecological services. Beyond a set of essential public trust principles and best practices, however, public trustees have considerable discretion in carrying out their fiduciary duties and achieving their mission of conserving, replenishing, and restoring the natural resources in their care. This Article explores these important developments in natural resource restoration law.
Legacy Litigation—What Is Reasonable Behavior in the Oilfield?
Loulan J. Pitre, Jr. & D’Ann R. Penner, Kelly Hart & Pitre
This Article examines a key issue in “legacy litigation”: the reasonableness of activities in the oilfield. After providing a brief history of Louisiana landowners’ attempts to recover for alleged or actual contamination from oil and gas exploration and production operations occurring many decades prior, this Article discusses how courts have grappled with the question of what restoration standard applies in the absence of a term specifying a restoration standard. When there is no express restoration clause, the pivotal issue is a determination of whether oil and gas operators’ practices constituted “unreasonable or excessive” use of the land. This Article plows new ground on this important issue, surveying both the common and civil law treatments of the “reasonable man” of contracts and oilfield remediation decisions from 1920 to 2013.
Fracking: State Preemption of Local Land Use Law
The Power of State Interest: Preemption of Local Fracking Ordinances in Home-Rule Cities
Jamal Knight & Bethany Gullman, Faegre Baker Daniels LLP
This Article explores the statutory and constitutional authorities of municipal entities to regulate hydraulic fracturing within their borders. It argues that municipal attempts to regulate hydraulic fracturing are misguided, preempted, and an invalid means of addressing the allegedly local concerns associated with fracking operations.
Local Land-Use Control, Constitutional Environmentalism, and Hydrofracking: New York and Beyond
Jordan Lesser, Legal Counsel for the New York State Assembly
This Article explores two fracking preemption cases informing the evolution of home-rule and environmental rights with respect to oil and gas drilling. The New York Court of Appeals ruling in Wallach v. Town of Dryden serves as a watershed moment in municipal self-determination and was a critical piece in New York’s recent ban on high-volume hydraulic fracturing. The Pennsylvania Supreme Court’s ruling in Robinson Township v. Commonwealth enshrined and re-empowered the Environmental Rights Amendment of the state constitution, leading to a new era of American environmental constitutionalism. Both cases herald impacts that extend far beyond their state borders.
Volume 28, Issue 1, Winter 2014
Holding Cigarette Manufacturers and Smokers Liable for Toxic Butts: Potential Litigation-Related Causes of Action for Environmental Injuries/Harm and Waste Cleanup
by Jill Witkowski, Director, Choose Clean Water Coalition
This article explores potential legal theories to address cigarette butt litter by holding cigarette manufacturers responsible for butt waste under common law doctrines and state laws and regulations. The paper’s primary focus is on the potential to address cigarette butt litter as a public nuisance by exploring the lessons learned from attempts to address other dangerous and damaging products in this manner. This paper explores challenges and opportunities of other statutory and common law approaches to addressing cigarette butt litter.
Greenwashing & Self-declared Seafood Eco-labels
by Jason J. Czarnezki, Professor, Pace University Law School (coauthors: Andrew Homan, and Meghan Jeans)
The credibility and veracity of an environmental claim depends on a high degree of transparency, clarity and trust. Businesses that utilize eco-labels to market the environmental performance of their seafood products often turn to third party certifications to minimize the potential for greenwashing and provide a level of verification and independence. Others rely on a riskier approach by developing their own “self-declared” or “first-party” eco-labels. Seafood retailers and suppliers considering the creation and use of an eco-label, certification, or seal to be used in the marketing of seafood products should ensure compliance with applicable FDA and USDA labeling rules. Furthermore, entities pursuing “self-declared” or “first-party” seafood eco-labels should consult the FTC’s Green Guides, closely follow developments in greenwashing litigation under federal and state consumer protection and unfair competition laws, and heed the early advice of legal experts in the field.
U.S. Military Accountability for Extraterritorial Environmental Impacts: An Examination of Okinawa, Environmental Justice and Judicial Militarism.
By Alan Ramo, Professsor, Golden Gate University School of Law
Local resistance to the relocation of a U.S. military base to a Bay threatening an endangered sea mammal off the coast of the island of Okinawa raises important issues regarding the extraterritoriality of U.S. environmental laws, the role of the courts in reviewing military operations and ultimately environmental justice. Federal courts continue inconsistently to sort out the extraterritoriality of U.S. laws, including environmental laws. Strong arguments remain that the National Environmental Policy Act and the Endangered Species Act should also apply to the U.S. military’s actions in Okinawa. Although the modern U.S. Supreme Court has reversed earlier cases and given great deference to military operations, a form of judicial militarism, environmental justice demands and case laws allows these environmental laws to shape U.S. military conduct on Okinawa and protect its environment.
ALL APPROPRIATE INQUIRY: BLACKBOARD OF DREAMS AND FEARS
By Stanley A. Millan, Jones Walker
All appropriate inquiry (AAI) is a federal due diligence term for a report used in making wise environmental real estate and business decisions (the dreams) by detecting, minimizing or avoiding environmental issues at potentially contaminated sites (the fears). This essay discusses how lawyers can use an environmental site assessment as a legal and business tool, how to give complete legal advice from it, and how to better comment and perceive its pitfalls and shortcomings.
Symposia, Colloquia, and Retrospectives
Volume 23 (2010)
Volume 18 (2005)
Volume 13 (2003)