Coevolution of Law and Science: A Clean Water Act Case Study

Robert W. Adler – Despite recent political attacks, science is integral to environmental law and other regulatory regimes that are informed by new scientific research. It is inaccurate, however, to view the relationship between law and science as static. Traditionally, science is either seen as a servant of the legal system, responding to and supporting the applicable statutes and regulations; or we expect the legal system to respond or “catch up” to scientific advances. A more useful model, borrowed from evolutionary biology, is coevolution, an ongoing process in which law and science interact over time in an iterative process. A case study from the Clean Water Act (“CWA”) biocriteria program illustrates this dynamic process and suggests ways in which law and science can interact more effectively in the CWA and other regulatory regimes. It also highlights the conceptual difference between “scientific knowledge” and “regulatory knowledge,” and the importance of that […]

Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise

Shana Jones, Thomas Ruppert, Erin L. Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, and Jason M. Evans – Coastal communities are becoming increasingly aware of the risks to local infrastructure from more frequent and severe flooding, more extreme storm surges, and sea-level rise. As local governments are responsible for the lion’s share of land use decision-making and infrastructure development in coastal communities in the United States, local governments in the coastal zone will play a key role in adapting to the changing climate. Local decision-makers are facing hard questions about whether to build new infrastructure, adapt existing infrastructure to new standards, continue maintaining existing infrastructure as is, or abandon infrastructure altogether. Monroe County, Florida, for example, has begun to factor sea-level rise considerations into decisions related to road improvement projects, creating specific design standards addressing elevation and working to weigh the benefits and costs of different adaptation options such as […]

Blocking Interstate Natural Gas Pipelines: How to Curb Climate Change While Strengthening the Nation’s Energy System

Jason Bressler – Over the past decade, the growth of natural gas, propelled by the fracking boom, has played a pivotal role in meeting the nation’s ever-expanding energy needs. Simultaneously, it has helped lower energy costs, reduce greenhouse gas emissions, and diminish dependence on foreign energy. Despite these benefits, and the fact that the United States has an abundance of extractable natural gas, the future of this resource as a solution to the nation’s energy demand remains uncertain. This uncertainty is largely attributable to the roadblocks preventing the development of interstate natural gas pipelines—the safest and most efficient means of transporting natural gas. The most formidable roadblock to the construction of interstate natural gas pipelines is Section 401 of the Clean Water Act (“Section 401”), which gives states the power to block construction of any pipeline that may interfere with their water quality standards. States’ use of this “veto” power has escalated in recent years, in what appears to be […]

Avoiding the Doldrums: Evaluating the Need for Change in the Offshore Wind Permitting Process

Mitchell Hokanson – Seventeen of the eighteen warmest years in recorded history have occurred since 2001, and temperatures have increased more than a full degree Celsius since the late 1880s. In line with this upward trend in global temperatures, 2017 was the second warmest year in recorded history, and the highest without an El Niño event. Experts agree that much of this change is due to the greenhouse effect—a process in which certain gases, called greenhouse gases (“GHGs”), in Earth’s atmosphere trap energy from the sun, which results in higher temperatures. While some GHGs are naturally part of the atmosphere, human activity has greatly contributed to the current atmospheric stockpile. To avoid the worst of climate change’s effects, some climate scientists have called for a concerted effort to limit global temperature change to 2 degrees Celsius. This 2 degree goal is also found in the Paris Agreement. There is also an appetite to limit […]

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

Kevin J. Lynch – The law of takings receives much attention from courts and scholars.  Yet much of that attention focuses on the questions of whether or not a taking has occurred, or whether the taking was for a public use.  Less attention has focused on the appropriate measure of just compensation.  This is understandable, because in many cases the requirement to pay just compensation would be too burdensome on the government, particularly in the more recent line of regulatory takings cases, and so if a taking is found, the government simply abandons its regulation and pays no or reduced compensation.   Nevertheless, courts have attempted to grapple with the just compensation question and developed a variety of approaches that might be used to determine damages for takings on a case-by-case basis.  Yet the lack of clear guidance from the courts and the potential for high damages awards due to the […]

Corrupt at Its Core: How Law Failed the Victims of Waste Dumping in Côte d’ Ivoire

Rebecca Bratspies – On August 19, 2006, citizens of Côte d’ Ivoire woke to suffocating odors. Overnight, five-hundred tons of hazardous waste had been illegally dumped across the country’s largest city, Abidjan.  Thousands were sickened.  The incident stands as one of the most flagrant environmental crimes in recent memory.  Now, more than a decade later, it is past time to examine the tragedy as an act of environmental corruption and to use the incident to draw lessons about the failures of global environmental governance.  The case is particularly instructive because the multi-national oil-trading company involved, Trafigura, has recently been back in this news; this time because of South Korean allegations that the company was involved in oil shipments to North Korea in violation of United Nations (“UN”) Sanctions. With regard to the dumping in Côte d’ Ivoire, Trafigura “strenuously maintains that it did nothing wrong and its staff acted in […]

Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review

Lee C. Rarrick – [C]omprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country . . . . -Justice Jackson The power of executive review remains imperfectly limited and defined—it therefore holds such potential dangers and advantages.  By executive review I mean the power of the President to interpret the law and determine for himself whether a given law or provision is constitutional.  Most commentators agree that this power exists legitimately in one form or another.  But some argue that it is virtually unbounded, save for the president’s own sense of deference to the other branches and his self-interest to remain in office.  Such a comprehensive power surely is as dangerous as that of which Justice Jackson warns in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, if not more so.  Moreover, if fully utilized, executive review would leave the judiciary with no […]

Federal Indian Reserved Water Rights and the No Harm Rule

Christian Termyn – Most American Indian rights to water trace their origins to 19th century treaty negotiations with the United States.  The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations.  In the century since Winters, the development of a legal doctrine around reserved water rights has centered largely on defining and quantifying the amount of water to which tribes are entitled.  With an increasing number of tribes holding quantified water rights, a more recent project (and the broad focus of this Note) seeks to integrate tribal water use within the dominant system of western water law: state prior appropriation doctrine. Where water is scarce, even a slight change in practice by one water user may affect the availability of water to other users of a […]

Linking Across Borders: Opportunities and Obstacles for a Joint Regional Greenhouse Gas Initiative-Western Climate Initiative Market

Augusta Wilson – Despite the strong consensus in the scientific community that anthropogenic climate change requires urgent attention, neither the United States nor Canada has implemented a comprehensive national policy to reduce greenhouse gas emissions.  Into this void have stepped two regional cap-and-trade programs that regulate greenhouse gas emissions in parts of both countries.  One, the Regional Greenhouse Gas Initiative (“RGGI”), is a partnership of nine states in the northeastern and mid-Atlantic U.S.  The other, the Western Climate Initiative (the “WCI”), is a partnership between California and the Provinces of Québec and Ontario.   Both programs have been operating for several years, demonstrating that cap-and-trade programs can achieve cost- effective emissions reductions.   Nonetheless, both markets have faced difficulties at various points, including volatility of allowance prices and the withdrawal of partner jurisdictions. One often-cited mechanism for improving the functioning of cap-and-trade markets is to link them with other markets.  In this […]

To Negotiate a Carbon Tax: A Rough Map of Interactions, Tradeoffs, and Risks

Justin Gundlach – This Article assumes that the federal government will assign a price to carbon dioxide emissions via legislation by the early 2020s for one or more of myriad reasons.  This Article’s purpose, however, is not to substantiate that assumption, but to explore a particular aspect of the adoption of such legislation.  The contents of that legislation will reflect negotiated agreements—built on various political tradeoffs—over a host of policy issues, ranging from taxes to energy efficiency standards.  These tradeoffs would implicate not only the tax’s scope and rate, but also the policies with which the tax would interact.  This Article describes interactions between a carbon tax and various existing and proposed policies relating to climate change, energy, and environmental protection.  It proceeds in five parts: Part II highlights three key points of background; Part III summarizes the universe of policies that can be expected to interact with a carbon […]

Reserving a Place for Nature on Spaceship Earth: Rethinking the Role of Conservation Easements

Sean M. Kammer & Sarah E. Christopherson –   It has been over half a century since Kenneth Boulding introduced the metaphor of the Earth as a “spaceship.” In his compelling analogy he argued that, due to increasing human demands, the Earth was becoming more like a spaceship carrying limited supplies (and limited capacity to receive pollution) than an open prairie spreading endlessly to the horizon.  In what he called the “cowboy economy,” “consumption is regarded as a good thing and production likewise,” with the economy’s success being measured solely “by the amount of the throughput from the ‘factors of production.’”  Boulding pointed out that a portion of this throughput is necessarily “extracted from the reservoirs of raw materials and noneconomic objects” and that another part consists of “output into the reservoirs of pollution.”  In the “spaceman economy,” in contrast, “throughput is by no means a desideratum, and is indeed […]

Environmental Personhood

Gwendolyn J. Gordon – Parks are people too, my friend.  So quipped an August 2016 headline making reference at once to Mitt Romney’s flip commentary on corporations and to recent developments in New Zealand law enabling landscapes to be named as legal persons—that is, as entities possessing juridical rights akin to those of corporations.  In the wake of this and other developments of the concept, legal personhood has struck observers as a promising tool for protecting nature—an idea overdue given the now seemingly unexceptional nature of corporate personhood in protecting corporate rights.  Far from being the settled, stolid doctrine that its long tenure might have it appear to be, however, corporate personhood is quicksilver; it seems an endlessly adaptable concept.  How might we come to understand the environment as a similarly flexible rights-holder in a way that is robustly protective of environmental interests?  This Article argues that, as an example […]

Where No Man Has Gone Before: The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements

Emily Hush – It is no secret that the planet is warming and that humans have had something to do with it.  Over the last one hundred and fifty years, the global average concentration of carbon dioxide in the Earth’s atmosphere has increased to unprecedented levels and continues to rise.  As the climate becomes warmer, the world will face ocean acidification, sea level rise, decreasing biodiversity, and more extreme weather events. At the end of the twentieth century, many nations recognized that climate change is a global phenomenon requiring cooperative action, and began to seek international solutions to prevent disastrous warming and to mitigate unavoidable impacts.  Sustainable development is central to this international response to climate change.  International agreements like the United Nations Framework on Climate Change and the Paris Agreement are indispensable to furthering sustainable development worldwide.  However, the complexity of such large multilateral agreements presents a barrier to […]

Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework

Alessandra Mistura – The publication of a Policy Paper on Case Selection and Prioritization (the “Policy Paper”) by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in September 2016 has reignited the longstanding discussion about the status of environmental crimes under international law.  The Policy Paper expressed the intention of the OTP to consider, in the selection of crimes to be submitted to the jurisdiction of the ICC, those committed through, or resulting in, “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”  Such wording soon gained widespread attention, prompting many news outlets to declare that, from now on, the ICC would focus on prosecuting “environmental crimes.”  The news sources’ enthusiasm, however, appears misplaced for several reasons. The first and foremost objection comes from a consideration of the ICC’s limited jurisdiction.  In fact, this is strictly confined by […]

Can Trump Build a Wall? The Administrative Obstacles to the Border Wall

By Patrick Maguire — While campaigning for the presidency, then-candidate Donald Trump promised his supporters he would build a wall on the southern border of the United States to thwart the flow of immigration from Mexico.  President Trump appears determined to follow through on his promise.  On January 25, 2017, five days after being inaugurated, the President issued an executive order with the goal to “secure the southern border of the United States through the immediate construction of a physical wall on the southern border.”  According to the order, the authority to build a wall is derived from the Secure Fence Act of 2006, a statute that has already been utilized to construct physical barriers along the border with Mexico.  This order, along with the President’s executive order banning the immigration of refugees, has incited a firestorm of protests across the country.  While the debate has justifiably focused on the […]