Current Issue

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 […]