Yearly Archives: 2016


Emerging Legal and Institutional Responses to Sea-Level Rise in Florida and Beyond

David L. Markell – The legal environment for local government in Florida (the “State”) is beginning to change when it comes to sea-level rise (“SLR”).  Innovations in institutional structure and governance strategies are underway in the State as well.  This Article reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others.  It begins, in Part II, with the State’s decision, in 2011 legislation, to give local governments a new, optional tool—referred to as “Adaptation Action Areas” (“AAAs”)—to address sea-level rise and related issues in local comprehensive plans.  Part III turns to a second piece of Florida legislation, the State’s 2015 “Peril of Flood” legislation, which mandates that local governments begin to address sea-level rise and other causes of flood-related risks through their comprehensive planning processes.  Part IV discusses a third initiative, the Southeast Florida Regional Climate Change […]


Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future

Laurie Ristino & Gabriela Steier – Soil and water are inextricably related, a fragile and complex system upon which agriculture and, in turn, our species, depend.  Yet we tend to regard this relationship and its criticality in the singular dimension of drought, hindering progress in policy and law to improve agricultural sustainability.  Without necessary policy reforms designed to protect the delicate balance between soil health, water conservation, and agricultural yield, we are foreclosing a food secure future for our nation.  America’s agriculture and farm policy, as embodied in the Farm Bill, has devastated natural resources and, thereby, nature.  Single resource advocacy and land management, such as water or soil conservation, fails to address this systems-based challenge, which is inextricably tied to the farm bill safety net.  American agriculture, as defined by the U.S. Department of Agriculture (“USDA”), commands the majority of the land mass of the lower forty-eight states.  Agriculture […]


Michigan: An Intrusive Inquiry into EPA’s Rulemaking Process

Lauren Packard – In 2015, the Supreme Court decided Michigan v. EPA, finding that the U.S. Environmental Protection Agency (“EPA”) interpreted section 112 of the Clean Air Act unreasonably when it decided to regulate toxic mercury emissions from power plants without first considering compliance costs.  Justice Scalia, writing for a 5-4 majority, found that the term “appropriate and necessary” in section 112 “naturally and traditionally” includes a consideration of costs.  Consequently, the Court found that EPA’s decision to regulate mercury emissions did not warrant deference under Chevron v. Natural Resources Defense Council because EPA did not predicate its determination on an analysis of compliance costs.  Rather, EPA decided to regulate emissions from power plants because such emissions pose a public health hazard, pre-existing regulations did not adequately address this hazard, and control technologies exist to mitigate it.  In her dissent, Justice Kagan pointed out that the agency had considered costs […]


The Natural Gas Act, State Environmental Policy, and the Jurisdiction of the Federal Circuit Courts

Channing Jones – Market pressures will likely drive a continued push for the build-out of natural gas infrastructure in the form of pipelines, compressor stations, storage facilities, and liquefied natural gas (“LNG”) terminals (collectively, “natural gas facilities”).  Where these facilities would transport natural gas in interstate or foreign commerce, their siting, construction, and operation are generally governed by the Natural Gas Act (“NGA” or the “Act”) and fall within the regulatory jurisdiction of the Federal Energy Regulatory Commission (“FERC” or the “Commission”). Natural gas project proposals commonly encounter controversy and resistance, indicating a considerable amount of future litigation as proposals to construct or expand natural gas facilities grow with supply and demand pressures.  One area this litigation may center around is the limited but sometimes decisive range of authority states hold to regulate natural gas facilities with respect to certain environmental matters, chiefly in certifying state water quality standards compliance under […]


You Say You Want a REV Solution: Considering New York’s Marquee Energy Initiative as Climate Change Policy

By:  Andrew Ratzkin This past fall, in a pair of remarkable speeches at New York University and Columbia University, Governor Cuomo issued forceful, groundbreaking statements and demonstrated real leadership on climate change. He bluntly articulated the problem, and asserted its reality in direct, unequivocal terms. At the Columbia event, and elsewhere, New York’s Reforming the Energy Vision (“REV”) has been highlighted as the key pillar of the State’s climate change policy, the vehicle via which the State’s ambitious greenhouse gas (“GHG”) emissions reduction goals—forty percent reduction from 1990 levels by 2030, eighty percent reduction by 2050—would be achieved. This Article considers the REV from the standpoint of whether this initiative is likely to deliver on this promise. The New York State Public Service Commission (the “Commission”) has identified reduction of carbon emissions as one of six policy objectives associated with the REV.5 Yet, climate goals, to the extent identified in the […]


Deep Space Thinking: What Elon Musk’s Idea to Nuke Mars Teaches Us About Regulating the “Visionaries and Daredevils” of Outer Space

By: Thomas J. Herron Elon Musk, founder of California-based aerospace company SpaceX, was recently called a “supervillain” on The Late Show with Stephen Colbert after revealing his idea to detonate thermonuclear devices over the poles of Mars. Musk does not have sinister intentions; he wants to terraform the Martian atmosphere so that future generations of humans can live there.3 Musk has long been an advocate of colonizing Mars, arguing that a multi-planetary presence can safeguard the survival of humanity in the future, especially if a catastrophic event ever occurs on Earth. Musk believes that Mars has great potential to support human life in the future, and his plan to create a habitable Martian atmosphere is intriguing. Special nuclear devices would be detonated in space over the planet’s polar ice caps, “creating two tiny pulsing ‘[S]uns’ over the regions.” In theory, generating large amounts of heat over the Martian poles could vaporize […]


Public Interest Standing and Judicial Review of Environmental Matters: A Comparative Approach

By:  Jeffrey T. Hammons   Judicial review is vital to clarifying and enforcing environmental laws in the United States. The public can use judicial review to protect the environment and hold the government accountable for environmental harms. Redressing environmental harm is often led by non-governmental organizations (“NGOs”) specializing in environmental issues. However, the modern standing doctrine can be a barrier to redressing environmental harms because it is not flexible enough to address the unique factual situations that arise in environmental litigation. One situation that current standing doctrine struggles to address is when government action affects the public generally, but no individual person is harmed in a specific manner. That scenario can occur, for example, when the government fails to address a pollutant known to be harmful due to its climate change implications, as addressed in Massachusetts v. EPA. Another frequent situation is when government action affects a particular environment, but […]


Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy

By:  Myanna Dellinger Cecil the Lion. The name speaks for itself: famed alpha male lion lured outside a Zimbabwean national park to be shot for “sport” by American dentist Walter Palmer in the summer of 2015. Palmer reportedly shot Cecil with a crossbow, then stalked the lion for forty hours before finally killing and beheading it. Palmer reportedly paid over fifty thousand U.S. dollars to a local hunting guide and landowner for the hunt. In such “trophy hunting” agreements, wealthy individuals, typically from the Global North, pay locals such as guides or landowners, often in the Global South, to assist with the planned hunt of rare—if not outright threatened or endangered—species such as lions, polar bears, black rhinoceroses, and giraffes for a fee as a private contractual arrangement. In other cases, hunters obtain government permits to kill and import a rare animal. Allegedly, trophy hunts contribute to local economies and […]


Building an Effective Climate Regime While Avoiding Carbon and Energy Stalemate

By:  Michael Wara The world needs a new approach to achieving international progress on climate change. Despite prodigious diplomatic efforts over two decades aimed at limiting emissions of climate change pollutants, relatively little in the way of effective global governance has been achieved. This lack of progress has led some, including the U.S. government, to seek climate deals outside of the climate negotiations, leading to fragmentation of the Climate Regime. In Part II, I present one of the key dilemmas faced by U.S. climate negotiators over the past decade—whether to pursue reductions of a super-greenhouse gas within the Ozone Regime or within the Climate Regime. In Part II, I also argue that this dilemma is a symptom of a larger problem—the structure of climate negotiations. The negotiations currently place a narrow legal, economic, and political focus on the hardest part of the climate change problem—energy-related carbon dioxide emissions. This focus […]


Fossil Fuel Abolition: Legal And Social Issues

By:  Karl S. Coplan The scientific community agrees that release of over 565 gigatons of carbon dioxide equivalents into the atmosphere through 2050 would cause global warming in excess of the maximum tolerable level. The Fifth Assessment Report of the Intergovernmental Panel on Climate Change (“IPCC”) is even more pessimistic with regard to the maximum tolerable level. We have already burned through 570 gigatons of carbon dioxide equivalent (“CO2e”)—out of one teraton available—leaving only 430 gigatons of burnable carbon remaining. Ever. Currently, attempts to reduce the greenhouse gas (“GHG”) emissions rate—both domestically and globally—have focused on gradual reductions to achieve a sustainable rate by 2050. To date, these efforts have proven completely unsuccessful: carbon emissions global rates continue to increase. Although the IPCC has concluded that global greenhouse gas emissions must be cut between fifty and eighty percent by 2050,5 neither the now-lapsed Kyoto Protocol nor the most recent voluntary national commitments have come close.6 There is no realistic prospect that sustainable global controls on greenhouse gas emissions […]


Report from the West Virginia v. EPA Oral Argument

By: Trevor Gopnik 16th November, 2016 On September 27, 2016, the U.S. Court of Appeals for the District of Columbia Circuit sat en banc to hear oral argument in West Virginia v. EPA.  The outcome of the case, which will almost certainly be appealed to the Supreme Court, could determine the Obama administration’s legacy on climate change action: federal regulation of greenhouse gas emissions from power plants.  Members of the public, including the author, began lining up before 7:00 AM seeking a seat in the courtroom or one of the two overflow rooms with live video feeds.  Oral argument started promptly at 9:30 AM and continued with only a short break until 6:00 PM.


People v. Rinehart, Conflicting Jurisprudence, and Certiorari

By: Sahand Farahati 16th November, 2016 On August 22, 2016, the California Supreme Court rendered a decision in People v. Rinehart that upheld an effective ban on suction dredge mining in the state.  Suction dredge mining is a method that uses a high powered suction device to vacuum loose material from streambeds and then separate the silt and gravel from valuable minerals, often gold.  This method of mining is known to disturb endangered coho salmon habitats and contribute to mercury poisoning in humans and fish.  At the same time, miners argue that it is the only practicable method of excavating gold.  These conflicting interests were described by the Rinehart court as “arising from the competing desires to exploit and to preserve [the state’s] various resources.” Despite the court’s ruling, this may not be the end of the line for the case.  James Buchal, the attorney arguing against the ban, has said he […]


Access, Conservation, and Sustainable Use of Marine Genetic Resources in Areas Beyond National Jurisdiction: Emerging Issues of Consensus and Contention

By: Jacqueline Joyce Espenilla The growing global interest in the ABNJ (Areas Beyond National Jurisdiction) comes hand in hand with risk. Due to the lack of a comprehensive regulatory regime, the ABNJ is already beginning to face numerous anthropogenic pressures including overfishing, marine pollution, loss of biodiversity, irresponsible conduct of marine scientific research (introduction of light and sound, removal of substrates, sedimentation, etc.), and climate change (ocean acidification and ocean warming). If this situation continues unchecked, the ABNJ (and the MGRs found within it) may be negatively affected even before the ABNJ is fully understood by mankind. This risk has created a strong impetus for stakeholders to begin negotiations for an international legally binding instrument (“ILBI”) for the conservation and sustainable use of marine biodiversity of the ABNJ.


Public Land Fight in Utah: Will the President Designate Bears Ears a National Monument?

By: Michael Lehr 5th May, 2016 The fight over federal control of western land is on display in a large, remote area of southeastern Utah.  On one side is a coalition of Native American tribes, supported by conservation groups, urging the designation of a new national monument to protect 1.9 million acres of land including the culturally important area of Bears Ears.  On the other side are conservative federal, state, and county lawmakers seeking to advance a recently unveiled public lands bill titled the Public Lands Intuitive (“PLI”).   The proposed bill would protect 1.2 million acres of the Bears Ears area while also opening land for energy development and a wilderness area.  At one time, both sides where hopeful that the PLI could serve as a grand compromise, but the proposed bill, which involved years of meetings and planning, was not what environmental and tribal groups envisioned.  Instead, these […]