CJEL


By Sean Coburn — Antarctica is one of the last true wildernesses, an area yet unblemished by significant human intervention.  It is considered “the epitome of remoteness and inaccessibility.”  However, Russia, China, India, Iran, and Turkey are all currently building or expanding bases in Antarctica.  This is in addition to a host of operational bases already established by many countries including Finland, Argentina, the United States, Chile, Germany, Australia, and New Zealand.  While various reasons, mainly scientific, are put forth for this flurry of activity, Antarctica presents a unique bounty for states—a potential vast reserve of untapped resources.  “The newer players are stepping into what they view as a treasure house of resources,” Anne-Marie Brady, a scholar at New Zealand’s University of Canterbury who specializes in Antarctic politics, told the New York Times.  In the past, Antarctica’s mineral wealth was seen as too distant and expensive to extract, but the […]

Eyeing 2048: Antarctic Treaty System’s Mining Ban


Michael Burger – Since the enactment of the Mineral Leasing Act in 1920 and the Outer Continental Shelf Lands Act in 1953 the United States federal government has leased onshore and submerged public lands to private companies to mine coal and drill for oil and gas, often at a steep discount, and often with little or no accounting for the broad scope of these fossil fuels’ environmental externalities.  The raft of environmental legislation that passed through Congress in the 1970s addressed these issues to some degree.  For example, the Federal Coal Leasing Amendment Act required the United States to, among other things, recover “fair market value” of each lease; the Surface Mine Control and Reclamation Act established a system for controlling local environmental impacts from coal mining; the National Environmental Policy Act required the federal government to assess, analyze and disclose potential adverse environmental impacts from federal actions, including cumulative […]

A Carbon Fee As Mitigation For Fossil Fuel Extraction On Federal Lands


Peter Howard & Jason Schwartz – U.S. climate regulations present a special case of federal agencies applying a global, rather than exclusively domestic, perspective to the costs and benefits in their regulatory impact analyses.  Since 2010, federal agencies have emphasized global valuations of climate damages for policies that affect carbon dioxide emissions, using a metric called the “Social Cost of Carbon.”  More recently, agencies have also begun to use a global valuation of the “Social Cost of Methane,” for methane emissions.  Yet lately, these global metrics have come under attack in courtrooms and academic journals, where opponents have challenged the statutory authority and economic justification for global values.  This paper defends a continued focus on the global effects of U.S. climate policy, drawing on legal, strategic, and economic arguments. International reciprocity presents the strongest justification for a global focus.  Because the world’s climate is a single interconnected system, the United […]

Think Global: International Reciprocity as Justification for a Global Social Cost of Carbon




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 […]

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


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 […]

Deep Space Thinking: What Elon Musk’s Idea to Nuke Mars Teaches Us About Regulating the ...



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 […]

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


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 […]

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy


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 […]

Building an Effective Climate Regime While Avoiding Carbon and Energy Stalemate



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 […]

Fossil Fuel Abolition: Legal And Social Issues


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.

Report from the West Virginia v. EPA Oral Argument


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 […]

People v. Rinehart, Conflicting Jurisprudence, and Certiorari