Books

---

Standing, in Cambridge Handbook on Climate Litigation (Cambridge University Press 2025)

The chapter explores the intricacies of the legal principle of standing, its role in climate litigation, and how it impacts the ability of parties to bring climate change-related lawsuits to trial. The author discusses interpretations of standing across different jurisdictions, such as the United States, New Zealand, and countries in Europe, and explains how these interpretations can either impede or facilitate climate litigation. He distills emerging best practice from this analysis, providing an insightful guide for future climate lawsuits. The author then identifies emerging best practice in interpreting standing rules in a flexible manner, thus allowing a broader range of actors to bring climate-related lawsuits and enhancing access to justice.

Climate Change Communication in Kolkata: Applying Communication Theories to Address Climate Change Displacement (with Lisha Samuel) in  Climate Change and Risk in South and Southeast Asia: Sociopolitical Perspectives (Routledge, 2022)

Atmospheric Trust Litigation in the United States: Pipe Dream or Pipeline to Justice for Future Generations?, in Climate Justice: Case Studies in Global and Regional Governance Challenges (ELI Press 2016)

Climate Change Impacts on Ocean and Coastal Law: Scientific Realities and Legal Responses (with Dr. Sarah Krejci) in Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (Oxford University Press 2015)

Ocean Iron Fertilization: Science, Law and Uncertainty, in Climate Change Geoengineering: Philosophical Perspectives, Legal Issues, and Governance Frameworks (Cambridge University Press 2013)

Greening the Forum: International Arbitration as a Pathway for Enforcing ESG in Climate Adaptation Commitments in Latin America, 58 Cornell Int’l L.J. 171 (202) (co-authored with Carla Noriega) (lead article)

As climate change vulnerability challenges in Latin America become more urgent, the enforcement of environmental, social, and governance (ESG) obligations—particularly those related to climate adaptation—is an emerging issue in arbitration in investor-State dispute settlement (ISDS). This article explores how arbitral tribunals are addressing ESG-related claims involving climate adaptation obligations in Latin America, assessing the extent to which climate adaptation measures are enforceable in ISDS frameworks. Following the introduction, Part I describes the applicable international and domestic climate change law frameworks and addresses contractual obligations that foreign investors have for ESG and climate adaptation in these projects. Part II addresses case studies in Peru, Colombia, and Ecuador to illustrate the tension between protecting investors’ interests and the State’s authority to enforce climate adaptation measures. Part III explores procedural challenges in ESG arbitration that threaten to limit the effectiveness of arbitration in the ISDS context. Part IV proposes substantive and procedural reforms to promote arbitration as a viable mechanism for enforcing climate adaptation standards in Latin America while balancing investor rights and public policy objectives.

Putting Lipstick on a Pig: Biogas, Methane Digesters, and the Greenwashing Playbook, 54 Env’t L. 545 (2024)

Industrial animal agriculture pitches biogas and methane digesters as solutions to the outsized methane footprint of concentrated animal feeding operations (CAFOs), yet these efforts merely seek to convey to the public that CAFOs’ operations are environmentally responsible. In reality, quite the opposite is true because biogas and methane digesters more deeply entrench these facilities into the status quo of unsustainable production and disposal methods at CAFOs. This article first describes industrial animal agriculture’s impacts on climate change, with a focus on methane emissions. It then addresses biogas and methane digesters as ineffective solutions to the methane emissions from CAFOs. Next, it examines how these misleading and inadequate responses in the industrial animal agriculture context parallel the fossil fuel industry’s greenwashing campaigns with blue hydrogen and carbon capture and storage facilities. The article proposes long-term and short-term accountability mechanisms to promote the phaseout of biogas and methane digesters in CAFOs. Effective long-term measures would involve implementing disclosure and verification standards much like those that are starting to be implemented in the fossil fuel industry context. These legislative efforts take time, however, and have not yet been implemented in the United States. In the meantime, an effective short-term response would be to pursue strategic litigation to raise awareness of and apply pressure to phase out these harmful measures by drawing on best practices from greenwashing lawsuits in the fossil fuel context. 

Enhancing Protection of “Climate Refugees” in Destination Hubs: A Comparative Analysis of Legal Mechanisms and Governance Challenges in the U.S. and India, 37 Harv. Hum. Rts. J. 293 (2024) (co-authored with Chhaya Bhardwaj)

The plight of climate refugees is a global crisis that requires global cooperation and regional responses. The United States and India are important regional destination countries for climate refugees. “Climate refugees” are not recognized as a category of people entitled to protection in either country; however, legal mechanisms in both countries can be applied to cross-border displacement due to climate change. Part I of the article introduces the challenge of defining the term “climate refugees.” Part II addresses legal mechanisms in India that can be used to protect people displaced across the border as refugees or protected persons, and Part III reviews these mechanisms in the United States. Part IV evaluates what the United States and India can learn from best practices in climate migration legislation in Europe and international human rights law. It also explores what these two countries can learn from each other’s best practices in developing governance frameworks for climate refugees. 

Coastal Migration With Dignity: Safeguards for Vulnerable Communities Disproportionately Burdened by Sea Level Rise Impacts, 54 Env’t L. Rep. 10744 (2024) (co-authored with Aashini Choksi)

This article proposes to apply social justice-oriented safeguards to diminish the vulnerability of communities in two climate migration case studies in the United States. First, it describes the troubling realities of “climate gentrification” in Florida as well as forced displacement from coastal areas for native communities in Alaska. It then addresses the existing federal and state legal frameworks in these contexts, and how gaps in each framework exacerbate the vulnerability of these overburdened communities. The article proposes law reforms to address these concerns. It first recommends adjustments to the Federal Emergency Management Agency’s (FEMA’s) authority that can help limit these vulnerabilities. It then addresses adaptive legal mechanisms in Florida to limit the burdens of climate gentrification on vulnerable communities. Finally, it proposes vulnerability assessments and funding mechanisms to protect Native Alaskan communities that need to be relocated away from coastal areas to safer inland destinations. The article concludes with broader reflections on the role of “receiving communities” as an emerging strategy to help displaced communities from coastal areas find a new place to call home.

Litigation to Protect the Marine Environment: Parallels and Synergies with Climate Litigation, 47 Wm. & Mary Env’t L. & Pol’y Rev. 595 (2023) (co-authored with Nadine Nadow and Hayley Dorrian-Bak) (lead article)

The world’s oceans are in crisis. Climate change impacts, biodiversity loss, plastic pollution, fisheries collapse, impacts to marine mammals, and vessel-based pollution are among the many threats the marine environment faces today. Fish biomass is predicted to drop by 3% to 25% by the end of the century due to climate change. Worse still, the amount of plastic in the world’s aquatic ecosystems is on track to hit 23 to 37 million tons per year by 2040. This Article reviews recent successes and obstacles in using litigation as a tool to address these concerns across several contexts in the marine environment. It surveys developments at the international, national, and subnational levels. The Article offers lessons from creative climate litigation strategies as a way to enhance litigation to protect the marine environment. It also recommends ways in which the ocean-climate nexus can provide mutual benefits in advancing the agendas of climate change regulation and ocean stewardship. Link

“Fool Me Once, Shame on You”: Promoting Corporate Accountability for the Human Rights Impacts of Climate Washing, 18 Intercultural Hum. Rts. L. Rev. 1 (2023) (lead article)

Effective climate change governance faces two overarching challenges. The first is mobilizing the political will to regulate climate change with sufficient ambition. Second, when regulatory measures are in place to address climate change, the next challenge is ensuring that governmental and private sector entities are on track to comply with these time-sensitive climate governance commitments. This article addresses the second challenge. It reviews “climate washing” litigation that seeks to hold fossil fuel companies and other private sector entities accountable for misleading the public about their compliance with climate change mandates or goals. The article argues that climate washing tactics threaten human rights to health, property, food and water, and life, especially in vulnerable communities, by postponing effective climate regulation and thereby amplifying the risks from climate change-related events such as severe storms, flooding, heat, and droughts. It proposes to incorporate human rights compliance mechanisms into companies’ characterizations of their climate change compliance to help ensure these entities are transparent and truthful in their efforts to comply with climate change governance mandates or goals.

Youth and Indigenous Voices in Climate Justice: Leveraging Best Practices from U.S. and Canadian Litigation, 45 Public Land & Resources L. Rev. 77 (2022) (lead article)

This article describes the evolution of youth and Indigenous climate justice litigation in the U.S. and Canada. It offers three recommendations to advance youth and Indigenous climate justice litigation in each country: (1) adjusting the type and scope of relief sought; (2) coupling the claims with rights-based arguments targeting laws at the federal and provincial levels in Canada and at the state level in the U.S.; and (3) capitalizing on the intersectionality between youth and Indigenous community claims. 

Anthropocene Accountability Litigation: Confronting Common Enemies to Promote a Just Transition, 46 Colum. J. Env’t L. 225 (2021) (climate change symposium issue)

This article offers a new perspective in the quest for climate justice. Myriad accountability lawsuits in the U.S. have been filed against the fossil fuel and industrial animal agriculture industries in the past few years, but these efforts have proceeded without coordination between the environmental and animal law fields. There has been no scholarly inquiry that unites the efforts to seek relief from “common enemies” for exacerbating the climate change crisis while profiting from their operations. The article first reviews the climate change impacts from the fossil fuel and industrial animal agriculture industries and examines how federal regulatory gaps and subsidies enable and exacerbate the climate change impacts from these industries. It then reviews legal theories in common law accountability litigation against these industries that seek damages for the harms these industries cause to public health and welfare, the environment, and animals. The article proposes that accountability litigation against the fossil fuel and industrial animal agriculture industries can facilitate a transition away from reliance on fossil fuels and factory farms to more sustainable alternatives. Positive outcomes from several related contexts including tobacco litigation, the phaseout of harmful substances in environmental regulation, and the COVID-19 crisis support the urgent need for this “just transition.” 

Atmospheric Trust Litigation: Foundation for a Constitutional Right to a Stable Climate System?, 10 Geo. Wash. J. Energy & Env’t. L. 33 (2019) (invited symposium submission) 

From Inside the Cage to Outside the Box: Natural Resources as a Platform for Nonhuman Animal Personhood in the U.S. and Australia, 5 Global J. Animal L. 54 (2017) (co-authored with Jonathan Crowe)

Banning Metal Mining in Guatemala, 40 Vt. L. Rev. 597 (2016) (co-authored with Raquel Aldana)

Ocean Iron Fertilization and Indigenous Peoples’ Right to Food: Leveraging International and Domestic Law Protections to Enhance Access to Salmon in the Pacific Northwest, 20 UCLA J. Int’l L. & Foreign Aff. 45 (2016)

Comment on Maxine Burkett’s Rehabilitation: A Proposal for a Climate Compensation Mechanism for Small Island States, 13 Santa Clara J. Int’l L. 125 (2015)

Corporate Responsibility and Climate Justice: A Proposal for a Polluter-Financed Relocation Fund for Federally Recognized Tribes Imperiled by Climate Change, 25 Fordham Env’t L. Rev. 10 (2013) (lead article, symposium issue)

International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples, 43 U. Ottawa L.J. 113 (2013) (invited symposium submission) (co-authored with Elizabeth Kronk Warner)

Commonality Among Unique Indigenous Communities: An Introduction to Climate Change and its Impacts on Indigenous Peoples, 26 Tul. Env’t L. J. 179 (2013) (co-authored with Elizabeth Kronk Warner) (lead article in special issue on climate change and indigenous peoples)

A Tale of Two Carbon Sinks: Can Forest Carbon Management Serve as a Framework to Implement Ocean Iron Fertilization as a Climate Change Treaty Compliance Mechanism?, 1 Seattle J. Env’t L. 1 (2011) (lead article of inaugural issue)

NEPA, National Security, and Ocean Noise: The Past, Present, and Future of Regulating the Impact of Navy Sonar on Marine Mammals, 14 J. Int’l Wildlife L. & Pol’y 326 (2010)

REDD, White, and Blue: Is Proposed U.S. Climate Legislation Adequate to Promote a Global Carbon Credits System for Avoided Deforestation in a Post-Kyoto Regime?, 19 Tul. J. Int’l & Comp. L. 95 (2010) (invited symposium submission)

Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time, 85 Wash. L. Rev. 197 (2010) (lead article, symposium issue)

Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate Change, and the International Environmental Law Framework, 27 Pace Env’t L. Rev. 555 (2010) (co-authored with Andrew B. Greenlee)

A Green Solution to Climate Change: The Hybrid Approach to Crediting Reductions in Tropical Deforestation, 20 Duke Env’t L. & Pol’y F. 87 (2009) (co-authored with Todd A. Wright)

Marine Protected Areas as a Mechanism to Promote Marine Mammal Conservation: International and Comparative Law Lessons for the United States, 88 Or. L. Rev. 255 (2009)

Massachusetts v. EPA and the Future of Environmental Standing in Climate Change Litigation and Beyond, 33 Wm. & Mary Env’t L. & Pol’y Rev. 121 (2008) (invited)

Automobile Emissions and Climate Change Impacts: Employing Public Nuisance Doctrine as Part of a “Global Warming Solution” in California, 40 Conn. L. Rev. 591 (2008) (lead article)

Climate Change, the United States, and the Impacts of Arctic Melting: A Case Study in the Need for Enforceable International Environmental Rights, 26A Stan. Env’t L.J. 3 (2007) (lead article)

Kyoto or Not, Here We Come: The Promise and Perils of the Piecemeal Approach to Climate Change Regulation in the United States, 15 Cornell J.L. & Pub. Pol’y 369 (2006)

Dawn of a New Era in the Extraterritorial Application of U.S. Environmental Statutes: A Proposal for an Integrated Judicial Standard Based on the Continuum of Context, 31 Colum. J. Env’t L. 87 (2006) 

Pesticides and Water Don’t Mix: Addressing the Need to Close a Regulatory Gap Between FIFRA and the CWA, 35 Env’t L. Rep. 10055 (2005) (co-authored with Matthew T. Stanger)

It’s All About What You Know: The Specific Intent Standard Should Govern Knowing Violations of the Clean Water Act, 9 N.Y.U. Env’t L.J. 304 (2001) (co-authored with Dayna E. Mancuso)

The Biosafety Protocol and The World Trade Organization: Can the Two Coexist?, 12 Pace Int’l L. Rev. 107 (2000) (with Gretchen L. Gaston)

Rethinking Citizen Suits for Past Violations of Federal Environmental Laws: Recommendations for the Next Decade of Applying the Gwaltney Standard, 16 Temp. Env’t. L. & Tech. J. 1 (1997) (lead article)

Constitutional Limitations on Anticompetitive State and Local Solid Waste Management Schemes: A New Frontier in Environmental Regulation, 14 Yale J. on Reg. 165 (1997) (co-authored with Mark E. Bennett)

Sovereign Immunity and Citizen Enforcement of Federal Environmental Laws: A Proposal for a New Synthesis, 15 Va. Env’t L.J. 1 (1995) (co-authored with Carolyn H. Cogswell) (lead article)

Broadening the Scope of Environmental Standing: Procedural and Informational Injury-in-Fact After Lujan v. Defenders of Wildlife, 12 UCLA J. Env’t. L. & Pol'y 345 (1994) (co-authored with Michael J. Myers)