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Environmental Law Review

Established 1969         

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Welcome to the home page for Environmental Law, the nation’s oldest law review dedicated solely to environmental issues. Environmental Law is a premier legal forum for environmental and natural resources scholarship.

Environmental Law is published quarterly by the students of Lewis & Clark Law School, 10015 S.W. Terwilliger Blvd., Portland, OR 97219, in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

Online Journal 

Visit Environmental Law’s companion online journal, where you will find selected articles and essays from our print journal, web-only articles, and an archive of our 9th Circuit case reviews. You can also share your thoughts on what you see there by posting comments and engaging in an online conversation with other legal minds. 

Current Issue: Vol. 44 No. 4

Articles

Climate Change Triage
Noah M. Sachs

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.

This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet it has been overlooked by climate change scholars. The triage lens rules out climate policies—including the current emissions path—that will lead to catastrophic warming, and it puts options on the table that are marginalized in the current United Nations negotiations on a climate change agreement.

This Article examines three allocation principles that could potentially apply in climate change triage—utilitarianism, egalitarianism, and a market-based distribution—and it concludes that egalitarianism is the preferable allocation principle from the standpoint of ethics and international law. This Article ends by exploring four major policy implications that emerge from viewing climate change through the lens of triage.

Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain
Albert C. Lin

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing’s benefits and burdens, moreover, means that national and subnational views regarding fracturing’s desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

Not One Without the Other: The Challenge of Integrating U.S. Environment, Energy, Climate, and Economic Policy
Victor B. Flatt & Heather Payne

Energy use is intertwined with environmental harms, climate, and economic development. However, the United States has failed to balance these interests together to make effective policy that can address each of these issues. The need for such integrative policy has become more and more obvious over time and with the added challenges of climate change. This Article reviews the historical challenge of integrating these policies, and by reviewing the policy core of prior statutes and policy debates, identifies principles that could guide a legislative body in attempting to integrate these issues successfully. This Article also notes the politicization of these issues and discusses possible paths forward from the existing gridlock.

Will More, Better, Cheaper, and Faster Monitoring Improve Environmental Management?
Ryan P. Kelly

Two critical problems in environmental management are a lack of primary data and the difficulty of assessing the environmental impacts of human activities. Producing the information necessary to address these twin challenges is often difficult and expensive, which impedes decisions in environmental management. I focus here on the possibility of making data collection more powerful and more cost-effective with a suite of analyses made tractable by emerging technology for genetic analysis. More, better, cheaper, and faster information about the planet’s living resources promises to influence a wide range of legal and policy processes—from Clean Water Act compliance and related public health initiatives, to fishery stock assessments, to National Environmental Policy Act compliance—and could help to make value-laden resource decisions more transparent in the bargain. As gathering data becomes cheaper, we may observe downstream effects to the incentives and behaviors of public agencies. Moreover, if in the future primary data is less of a limiting factor in environmental decisions, it becomes increasingly important to understand the process of developing useful knowledge from raw data, and the processes by which such information may lead to action.

Essays

Wilderness and Culture
Eric T. Freyfogle

The term wilderness is one of the more mischievous, elusive, and conflict-laden words in the English language. The ways we think and talk about wilderness are well embedded in modern culture and the debates surrounding it have as much to do with meaning, values, and human perception as they have to do with the ever-changing physical world. This Essay explores the complex ways that wilderness and contemporary culture are linked. Its central claim is that the cultural clashes surrounding wilderness arise out of, and reflect, not just larger cultural currents, but fundamental confusions or deficiencies in the ways we comprehend the world and our place in it. They reflect deficiencies in the ways we think about ourselves as distinct beings, in our understandings of normative values and their origins and legitimacy, and in the limits nature imposes on our modes of living. These intellectual shortcomings play key causal roles in our ongoing patterns of misusing the natural order. They also help explain why we struggle so much to see the errors in our ways and to improve them, even when we have the facts and technology to do better. Once we see wilderness clearly, separating the physically real from the human-constructed, we can gain a better sense of our ecological plight. We can also see better how wilderness areas can benefit us, not just by supporting the health of landscapes, but by providing places and opportunities to stimulate much needed cultural change.

Comments

Nothing But Unconditional Love for Conditional Registrations: The Conditional Registration Loophole in the Federal Insecticide, Fungicide, and Rodenticide Act
Joanna Lau

This Comment examines the practice of the U.S. Environmental Protection Agency (EPA) of issuing “conditional registration” status to pesticides rather than requiring the pesticide manufacturer to comply with full registration requirements as outlined in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This Comment argues that conditional registration goes against the purpose of FIFRA by allowing potentially harmful pesticides to evade safety requirements and to permeate the environment with effects yet unknown.

This Comment analyzes the history of pesticide law in the United States as well as the structure and purpose of FIFRA and its pesticide registration process. This Comment further draws attention to the flaws of the conditional registration process, and finally discusses current litigation that has the potential to change EPA’s conditional registration practices.

An Endangered Theory: Vicarious Liability Under the Endangered Species Act
William M. McLaren

Who exactly can be held responsible for “taking” a member of a species protected by the Endangered Species Act (ESA)? Since the ESA’s enactment, this simple question, when brought before courts, invariably yields complex answers. Can a reckless boater be held liable for taking an endangered Hawaiian monk seal, assuming the boater knows that species is endemic to the area? Perhaps, yes. Does this conclusion differ regarding the entity responsible for providing that person with a boating license in the first place?

As the degree of causation and connection to the “take” becomes more remote, the lines of liability become blurred. This concept is solidified by a series of cases exploring issues similar to the questions posed above. The theory of ESA vicarious liability has expanded and contracted over time. Recently, its use has dwindled and its efficacy has come into question. To determine whether this fringe source of liability will have any place in the future of ESA jurisprudence, lessons must be learned from the past.

This Comment will attempt to draw out distinct themes from the small litany of cases on ESA vicarious liability. Further, those themes will be applied to other statutory regimes that operate to protect valued species, namely the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. In the end, some clarity will be shed on whether ESA vicarious liability has retained its viability or whether, all told, it is nearing its own extinction.

Compelling a Nutrient Pollution Solution: How Nutrient Pollution Litigation is Redefining Cooperative Federalism under the Clean Water Act
Laura Kerr

Nutrient pollution is one of the most pressing, costly, and complex environmental problems facing the nation’s waters. It is essential for states to utilize their Clean Water Act Water Quality Standard programs to combat the impacts of nutrient pollution. Yet, states have been slow to do so. Frustrated with states’ progress in addressing nutrient pollution, environmental organizations in Florida and the Mississippi-Atchafalaya River Basin attempted to compel the Environmental Protection Agency to act. These nutrient pollution battles that ensued in Florida and subsequently in the Mississippi-Atchafalaya River Basin are redefining the contours of cooperative federalism under the Clean Water Act.

Environmental Law Review

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