Sustainability and Environmental Issues Legal Resource Materials

Entrepreneurship Law Editorial Team

Books

ENVIRONMENTAL LAW FOR SUSTAINABILITY: A READER (Benjamin Richardson & Stepan Wood eds., 2006).

Abstract (from product description at Amazon.com):  This volume of essays presents critical new scholarship on law for sustainable development. Its contributors provide international and comparative perspectives on the current state of environmental law and its future directions. Aimed at both students and scholars in law and other social sciences, it goes beyond conventional descriptions of environmental law and policy to a theoretical and interdisciplinary analysis of the role of law in sustainable development. Starting from the premise that ecological sustainability requires environmental law systems to be sensitive to a wide array of institutional, social and economic issues and to emerging forms of environmental governance beyond conventional legal regulation, the book explores: future directions in command regulation; changing forms of public administration; risk assessment and precautionary regulation; ecological justice; public participation in environmental decision-making; indigenous peoples and the environment; industry self-regulation; economic instruments; sustainable finance; the state of international environmental law; and environmental law in developing countries.

Articles

Peter Adriaens & Deborah De Lange, Field Structuration Around New Issues: Clean Energy Entrepreneurialism in Emerging Economies (Ross School of Business, Paper No. 1180, 2012), available at http://ssrn.com/abstract=2171852.

Abstract (by authors): This research contributes to the literature on emerging industries by examining how an organizational field takes form as a new entrepreneurial venture arises and is legitimized. Clean energy firms face unprecedented challenges, arising in emerging economies where energy infrastructure is inadequate or non-existent. These are local contexts where there are no preexisting related industries, yet the intent is to diffuse renewable energy widely to an extent that it could spur broader local economic development. This research proposes that in the absence of legitimacy-building mimetic, normative and regulative mechanisms, unique types of endorsements legitimize and enable new firms in nascent industries.

Kyle W. Danish, International Environmental Law and the "Bottom-Up" Approach: A Review of the Desertification Convention, 3 Ind. J. Global Legal Stud. 133 (1995)

Carla Dickstein, Diane Branscom, John Piotti & Elizabeth Sheehan, Commentary, Sustainable Development in Practice: a Case Study Analysis of Coastal Enterprises, Inc.'s Experience, 12 J. Affordable Hous. & Cmty. Dev. L. 411 (2003).

Abstract (from introduction):  This paper argues that CED practitioners have a great deal to share in the current sustainability dialogue because of CED's historic commitment to social justice and equity and practitioners' concrete experience in the field. Although “sustainability” has been defined and redefined and sustainability indicators have been generated through visioning and collective planning processes, concrete examples of how to put sustainable development goals into action are in short supply.  At the same time, the concept of sustainable development explicitly raises preservation of natural resources and the environment to a status equal to the other goals of the development process. The concept forces CED practitioners to redefine their systems of operation, partners, and points of intervention.  This paper examines sustainable development from the specific experience of Coastal Enterprises, Inc. (CEI), a CED practitioner. It first defines the elements of sustainability and the importance of the concept to CED, the current state of sustainable practice in the CED field, and CEI's specific history in sustainable economic development practice. The paper then moves to case studies from CEI's recent sustainable development projects, focusing on several that have incorporated explicit environmental goals. Finally, there is a discussion of the lessons from those cases that are relevant to the CED field as a whole.

Neil D. Hamilton, America's New Agrarians: Policy Opportunities and Legal Innovations to Support New Farmers, 22 Fordham Envtl. L. Rev. 523 (2011).

Abstract (adapted from author): This Article addresses how law and policy can be employed to create opportunities for new farmers and considers how this relates to the expansion of local and regional food systems. Part I considers the traditional role played by the United States Department of Agriculture (“USDA”) in supporting new farmers and addresses how the work of the USDA can be enhanced. This discussion builds on the leadership of USDA Secretary Thomas J. Vilsack who, in a July 2010 appearance before the Senate Agriculture Committee, articulated a goal of helping create 100,000 new farmers. Further, this Article presents an extensive set of ideas and recommendations on how the USDA can achieve this goal. Part II considers three topics which address key issues facing new farmers. The three topics are: 1) how the local food policy councils proliferating across the nation can incorporate efforts to support new farmers; 2) how a “new farmer fund” generated in part through market-based consumer-oriented support can be used by organizations working to train and assist new farmers; and 3) how a “farm school” model may address the labor law issues associated with traditional models of on-farm “internships” and apprentices” while expanding the opportunities for people interested in learning about farming. The Article concludes with a brief discussion of the connection between efforts to support new farmers and expanding local and regional food systems and how these developments are both part of the growing national interest in healthy food and direct farmer-to-consumer marketing.

Carmen Huertas-Noble, Jessica Rose & Brian Glick, The Greening of Community Economic Development: Dispatches from New York City, 31 W. New Eng. L. Rev. 645 (2009).

Abstract:  Community development corporations and other community-based organizations have recently begun to make major efforts to incorporate environmental elements into their projects. This Article examines this healthy trend, and lawyers’ contributions to it, through the work of three groups in three diverse communities of color in New York City. It is based on the authors’ experience providing or directing transactional legal assistance to those groups as directors of law school community economic development clinics (Huertas-Noble at CUNY, Glick at Fordham) or of legal services community development units (Rose at Brooklyn Legal Services Corp. A). Our clients are merging activism for economic development and environmental justice to create green-collar jobs for local residents, build affordable housing that is environmentally friendly, and use local land for sustainable projects that serve and improve the community. In the Cypress Hills section of East New York in Brooklyn, an established community development corporation works creatively to amass the financing required to make its buildings increasingly green. In West Harlem, a prominent environmental justice organization fights for community - serving sustainable land use and for programs to prepare people of color to get their fair share of jobs and contracts in the emerging green economy. In the South Bronx, a new organization forms worker-owned enterprises that train and employ local residents, protect the environment, and offer the potential for residents to accumulate a modicum of local wealth. Other articles in this symposium report a similar convergence of CED and environmental justice efforts in other parts of the country.

Heather Hughes, Enabling Investment in Environmental Sustainability, 85 Ind. L.J. 597 (2010).

Abstract (from author): An extensive, public conversation about creating incentives for commercial actors to take more responsibility for environmental harm is underway. Very few participants, however, identify commercial finance law as a potential site for developing these types of incentives. This Article proposes an “environmental practices money security interest” (EPMSI) that could be added to Uniform Commercial Code (UCC) Article 9 to facilitate transactions that enable good environmental practices. The concept of the “super-priority” security interest-a collateral-security device and priority rules designed to enable certain types of investments-is well established in commercial law. Article 9 contains rules governing two such interests: the purchase money security interest for acquisition of goods and the production money security interest in agricultural finance. The EPMSI would grant priority over earlier investors to financers whose extensions of credit enable debtors to invest in improving environmental impact.

Leslie A. Gordon, Sustainability - Law Firm Clients Demand Clean Tech Practices, 34 S.F. Att'y 16 (2008).

Bruce Ledewitz, The Constitutions of Sustainable Capitalism and Beyond, 29 B.C. Envtl. Aff. L. Rev. 229 (2001-2002).

Abstract:  As environmental crises mount, the law and forms of governance must change. This article explores the challenges provided by recent sustainability literature to the law. As the article demonstrates, the sustainability literature, while it contains economic analysis and solutions to environmental problems, does not systematically address the questions pertaining to the design of law and political institutions. To that end, this article poses the challenge to the legal profession, particularly law schools and their students, to incorporate sustainability into their worldview.

Lisa M. LeSage, Sticky Thickets: Local Regulatory Challenges for Small and Emerging Sustainable Businesses, 31 W. New Eng. L. Rev. 673 (2009).

Abstract:  "Sustainability" is the ubiquitous new buzzword for the twenty-first century. Large corporations everywhere tout their "sustainable" and "earth friendly" practices. Yet the explosive growth in sustainable business practices is not just a multinational corporate phenomenon. Small businesses and micro-entrepreneurs, especially in the western United States, long have been leaders in the development of sustainable business practices. The problem, however, is that these innovative small businesses on the cutting edge of sustainability frequently run headlong into the intractable thicket of local regulatory enforcement mechanisms-mechanisms that often foster and reinforce regressive behavior and methodologies, and exploitive growth over sustainable growth.

Andrew P. Morriss, William T. Bogart, Andrew Dorchak & Roger E. Meiners, Green Jobs Myths, 16 Mo. Envtl. L. & Pol'y Rev. 326 (2009).

Abstract:  A rapidly growing literature promises that a massive program of government mandates, subsidies, and forced technological interventions will reward the nation with an economy brimming with "green jobs." Not only will these jobs improve the environment, but they will be high paying, interesting, and provide collective rights. This literature is built on mythologies about economics, forecasting, and technology.  This article surveys the green jobs literature, analyzes its assumptions, and shows how the special interest groups promoting the idea of green jobs have embedded dubious assumptions and techniques within their analyses. Before undertaking efforts to restructure and possibly impoverish our society, careful analysis and informed public debate about these assumptions and prescriptions are necessary.

V. Jean Ramsey & John H. Williams, Small Business and Clean Air Regulations: Issues and Problems, 8(1) J. Bus. & Entrepreneurship 53-69 (1996).

Anthony B. Schutz, Toward a More Multi-Functional Rural Landscape: Community Approaches to Rural Land Stewardship, 22 Fordham Envtl. L. Rev. 633 (2011).

Abstract (adapted from article): This Article explores how farms and ranches can adapt to meet consumer demand for outdoor activities like hunting, wildlife viewing, hiking, or simply enjoying the solace of spending time in rural places. These places hold breathtaking landscapes, but they are often privately owned, relatively inaccessible to the general public, and have not been managed to produce the ecosystem services that would support these activities, despite strong evidence of consumer demand. Historically, farms and ranches have been managed for a single dominant use, undertaken wholly upon an individual's landholdings. Entering the emerging market for nature-based experiences requires that farms and ranches adapt from fragmented single-use businesses to multi-functional enterprises that cooperatively operate at larger spatial scales. This Article explains how lawyers can help farmers and ranchers can make such a move. It refers to the emergence of these enterprises as “nature-based entrepreneurship.” Nature-based entrepreneurship attempts to capitalize on consumer demand for nature-based activities, while also furthering the conservation movement on private lands. As a consumer-oriented conservation approach, nature-based entrepreneurship involves an embrace of market liberalism in pursuit of environmental goals. And, as this Article explains, it may be one of the few feasible means of attaining environmental goals on vast, privately owned rural landscapes.

Judd F. Sneirson, Green is Good: Sustainability, Profitability, and a New Paradigm for Corporate Governance, 94 Iowa L. Rev. 987 (2008-2009).

Abstract: This article relates the concept of sustainability - that we must meet our present needs without infringing on future generations' ability to do the same - to corporate governance and seeks to reconcile any conflicts between the two. The largest of these conflicts is the commonly held view that companies must strive to maximize shareholder wealth and affirmatively neglect all other constituencies and considerations. This article debunks this myth, both as a matter of law and as a function of social norms, market influences, and corporate law theory. The article then presents a new paradigm for corporate governance wherein companies voluntarily commit themselves to sustainable business practices. One of these new sustainable business models is the "B Corporation" certification that has garnered recent attention in the national business press. A second model hails from Oregon, where a newly enacted corporate law provision encourages businesses to pledge to act sustainably.

Online Resources

John Audley & Scott Vaugh, Time for the NAFTA Environmental Watchdog to Get Some Teeth (June 24, 2003).
http://www.globalpolicy.org/globaliz/econ/2003/0703cec.htm

Hempsons, Environment and Sustainability
http://www.hempsons.co.uk/sectors/health-and-social-care/services/environment-and-sustainability/

Gray E. Taylor, Radha D. Curpen & Christopher Somerville, Canada: Focus On Legal Aspects of Sustainability
http://www.mondaq.com/canada/article.asp?articleid=112252

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