Kenneth T Kristl

Cleaning Up Our Rivers, Lakes, and Streams: Water Quality and Widener

Kenneth T. Kristl — Thu, 18 Aug 2011 13:38:10 PDT

Climate Change Litigation – Power Point Slides, Chapter Three

David R. Hodas et al. — Wed, 04 Nov 2009 09:39:18 PST

Diminishing the Divine: Climate Change and the Act of God Defense

Kenneth T. Kristl — Tue, 21 Apr 2009 13:43:41 PDT

The Act of God Defense-the notion that climatic events like storms and floods beyond the control of humans can excuse a defendant's liability for a plaintiff's damages - has long been recognized in tort, admiralty, and (at least theoretically) environmental law. Climate change promises to increase the frequency and severity of the very climatic events historically considered Acts of God, and thus raises the question of whether and to what extent climate change will adversely impact the continued vitality of the Act of God Defense. The article explores how the Defense has developed and been applied in tort, admiralty, and environmental law, finding that the key concept driving the defense is foreseeability of the climatic event itself (Event Foreseeability) or of actions that could be taken to prevent or mitigate the effects of the event (Response Forseeability). By exploring the theoretical bases for the defense, it is clear that notion of foreseeability raises significant issues with the defense Climate change promises to increase Event Foreseeability, and with such increased knowledge of likely impacts, will in turn raise the required level of Response Foreseeability to the point that a defendant must engage in economically inefficient responses if it wants to retain the ability to assert the Defense. The article concludes that the theoretical problems with the defense, coupled with their amplification by climate change, will likely combine to reduce the applicability of the Act of God defense in a warmer world.

Are Franchise Agreements Headed for a Crash Landing?

Kenneth T. Kristl — Wed, 18 Feb 2009 14:29:23 PST

Clinic Provides Environmental Defense, Legal Training

Kenneth T. Kristl — Wed, 18 Feb 2009 14:26:12 PST

Now Comes the Hard Part: Cleaning Up Delaware’s Streams, Rivers and Bays

Kenneth T. Kristl et al. — Wed, 18 Feb 2009 14:24:49 PST

Renewable Energy and Preemption: Lessons from Siting LNG Terminals

Kenneth T. Kristl — Thu, 22 Jan 2009 11:58:35 PST

Limits on Legislative Court Judicial Power: The Need for Balancing Competing Interests

Kenneth T. Kristl — Wed, 07 Jan 2009 12:34:03 PST

Coordination of a Large Environmental Permitting Effort

Kenneth T. Kristl et al. — Wed, 07 Jan 2009 12:30:56 PST

A Boundary Dispute’s Effect on Siting an LNG Terminal

Kenneth T. Kristl — Wed, 07 Jan 2009 12:26:28 PST

Allocating Responsibilities for Environmental Cleanup Liabilities through Purchase Price Discounts

Kenneth T. Kristl — Wed, 07 Jan 2009 12:20:42 PST

Making a Good Idea Even Better: Rethinking the Limits on Supplemental Environmental Projects

Kenneth T. Kristl — Fri, 12 Dec 2008 13:25:49 PST

Supplemental Environmental Projects (SEPs) allow a defendant in an enforcement action under federal environmental laws to reduce its civil penalty by agreeing to undertake an environmentally beneficial project it would not otherwise be required to do. Properly structured, SEPs benefit the enforcement plaintiff, the defendant, and the environment, and federal policy encourages the use of SEPs. A first of its kind examination of SEP utilization rates in federal enforcement actions finds that—despite active encouragement within and by EPA—SEPs are only used in about 13% of federal enforcement cases. After examining the development of federal policy concerning SEPs, likely explanations for the low utilization rate are EPA’s insistence on (1) a “nexus” between the SEP and the violations that are the subject of the enforcement action, and (2) the use of a maximum 80% mitigation percentage that allows a defendant at most $0.80 in penalty reduction for every $1.00 of SEP money spent. The article argues that the nexus requirement is not required either by statute or the constitution, and that EPA’s own policy statements on nexus reduce it scope and creates problems on a programmatic basis. The article also argues that the mitigation percentage limit creates an economic disincentive for SEP utilization. The article concludes that the elimination or substantial relaxation of the nexus requirement and the use of a dollar for dollar penalty reduction would substantially increase SEP utilization and, consequently, benefits to the environment.

Keeping the Coast Clear: Lessons About Protecting the Natural Environment by Controlling Industrial Development Under Delaware’s Coastal Zone Act

Kenneth T. Kristl — Fri, 12 Dec 2008 13:21:42 PST

Passed in 1971, Delaware’s Coastal Zone Act was a pioneering law that declared as public policy the prohibition of heavy industry and the regulation of manufacturing within Delaware’s coastal zone because of the environmental threats posed by such development. This article is the first comprehensive scholarly analysis of how the Act has been interpreted and applied to protect Delaware’s coastal environment. It provides an extensive analysis and annotation of how the Act’s terms have been used and the principles of statutory interpretation that inform the Act’s continued application. The article argues that the Act’s prohibitions on heavy industry and bulk product transfer facilities, as well as the requirement that manufacturing facilities “offset” their negative environmental impacts, can serve as a blueprint for any coastal state seeking to protect coastal natural resources. It concludes that, while the Act has been a success within Delaware, threats to its continued vitality exist and must be met by increased vigilance and fealty to the principles of interpretation that have guided it through its history