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Environmental Law Review

 

Est. 1969   

 

Welcome to 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 in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

 

 

Current Issue: Vol. 51 No. 2

 

LAND ACKNOWLEDGEMENT

 

ARTICLES

 

Climate Change and the Criminal Justice System

Laurie L. Levenson

The past decade has been the warmest in history. But while there has been a great deal of attention paid to infrastructure sustainability issues, less attention has been focused on the impact of climate change on our criminal justice system. This Article anticipates how climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.

This Article first examines three ways climate change is challenging our criminal justice system—from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation. Drawing in part on lessons from the response to the COVID-19 pandemic, this Article makes ten recommendations on how such challenges can be met.

 

Wilderness Law in the Anthropocene: Pragmatism and Purism

Phillipa C. McCormack, Benjamin J. Richardson, David Takacs, & Kees Bastmeijer

Wilderness is vanishing. Despite explicit legislative protection of wilderness values for over half a century, rapid environmental degradation worldwide in recent decades has severely diminished the extent and quality of terrestrial and marine wilderness to the point where we must reassess the fundamental premises and future of wilderness law. With increased human demands on the natural world, and with climate breakdown looming, the very notion of “wilderness” itself may one day be considered meaningless or irrelevant. We examine legal developments in the United States, Australia, and Europe to critically evaluate the state of wilderness law. In this Anthropocene era, when humans control so much of Earth’s resources, we examine whether the law should aim for a “purist” approach, in which wilderness areas are simply left untouched, or a “pragmatic”‘ approach, in which wilderness is actively managed to maintain its cherished values in the face of mounting adversity. A variety of intermediary positions are conceivable between these endpoints, and the best approach to wilderness management will likely depend on several considerations including who or what “wilderness” is meant to serve, the geographic and biological features of the landscape, environmental threats the area faces, the presence of Indigenous or other local communities, and the values that the guiding law means to serve. We offer recommendations to improve wilderness law to navigate the Anthropocene. We suggest proceeding with care and humility, staying as close to purism as possible, while acknowledging that sometimes we must take a pragmatic approach and intervene to preserve the wilderness qualities our laws are designed to protect.

 

Logistical and Tax-related Obstacles to Coordinating Conservation Land Assemblages

Daniel Pessar

Assembling large tracts of property in the for-profit and nonprofit sectors can offer a bigger opportunity than any one parcel could offer on its own. But even though for-profit developers regularly aggregate plots over short periods of time, conservation groups almost never succeed in aggregating property over the short term. Conservation assemblages, if they happen at all, tend to take many years or even decades. This Article will summarize the opportunities and challenges presented by conservation assemblages, including the logistical and tax-related obstacles faced by conservation groups. The Article includes two case studies of successful conservation assemblages which illustrate the complexity involved and the opportunity available to professionals able to bring these projects together.

 

Crafting an International Legal Framework for Renewable Energy on the High Seas

Todd Emerson Hutchins

Ocean renewable energy (ORE) technologies, such as wind, waves, and biomass harvesting, have rapidly advanced and are proliferating around the world. This Article considers whether existing Law of the Sea sufficiently manages ORE development on the high seas and, if not, what type of regime would best effectuate a sustainable and just allocation of such resources. Part II introduces ORE systems, highlighting factors that will push ORE development further from shore out into the high seas beyond national jurisdiction. Part III considers whether the existing international legal framework for allocating ocean resources, principally the United Nations Convention on the Law of the Sea (LOSC), can adequately govern ORE development on the high seas. In finding existing treaties and mechanisms are insufficient, this Part forewarns that disorderly development will likely lead to overexploitation and unjust resource allocations, potentially sparking geopolitical tensions and ecological disaster. Part IVexplores alternative ocean resource management regimes, such as expanded exclusive zones for renewable energy administered by individual nations, regional organizations, and a global administrative authority. Parts V and VI conclude that a hybrid approach, which combines the most advantageous elements of each alternative, is necessary and exhort the United Nations to either call for a new convention or adopt a high seas ORE implementing agreement as an annex to the existing LOSC.

 

 

COMMENTS

 

The Federal Public Trust Doctrine of Illinois Central: The Misunderstood Legacy of Appleby v. City of New York

Michael Benjamin Smith

The public trust doctrine imposes obligations and restrictions on governments in their exercise of sovereign power over property and resources of great public value. For environmental plaintiffs alleging that the federal government has breached its fiduciary obligation as a steward of natural resources, the vitality of the public trust doctrine hinges on whether courts conclude that it is exclusively a state law doctrine or also applies to the federal government. Courts have split on the issue, disagreeing over the proper scope and application of the U.S. Supreme Court’s seminal 1892 public trust case, Illinois Central Railroad v. Illinois.

Several courts, including the D.C. Circuit, have leaned on an isolated quotation from Appleby v. City of New York—an obscure 1926 U.S. Supreme Court breach-of-contract case that discussed Illinois Central—for their conclusions that the public trust doctrine does not apply to the federal government. That presumed pillar of support, however, crumbles under scrutiny of the facts and reasoning of Appleby. The Appleby Court in fact recognized and ratified the broad principle of Illinois Central, under which public trust obligations inhere in sovereignty and would thus bind the federal government along with states.

This Comment offers a thorough analysis of Appleby that may enable environmental plaintiffs to counter assertions that the Supreme Court has foreclosed the possibility of a federal public trust obligation. Although later Supreme Court dicta suggest otherwise, Appleby supports a conclusion that the public trust doctrine binds all sovereigns, including the federal government.

 

Preventing the Impending Death of Privacy by the Smart Grid

Dustin Vergason

This Comment discusses the benefits of the continuing evolution of a smarter electricity grid and how to overcome the negative effects these advancements will have on privacy. Ensuring both utilities and consumers can utilize the full range of smart technologies to better control and manage electrical usage could have enormous impact on the integration of more renewable power sources and assist in slowing climate change. The installation of smarter electrical meters and more internet-connected appliances can give utilities and their customers increasing information about the best time to use electricity. In many areas of the country, utilities have installed, and are continuing to install, digital smart meters capable of communicating incremental and real-time usage back to the utilities. This information can be used in a variety of beneficial ways including grid management, future system planning, and energy efficiency programs. However, this information comes at a huge cost to customers’ privacy. Incremental electricity usage data for individual homes can reveal an incredible amount of data on what is happening in the customer’s home. Fears over this invasion of privacy has led to opposition in many areas of the country where utilities have installed or attempted to install
smart meters. Privacy advocates have raised alarm by stoking fears of governmental and corporate invasion of privacy within the home and have ultimately been successful preventing some smart meter installation.

Juxtaposed against these privacy concerns is the need to combat climate change and advance renewable energy development. Not only will a smarter grid allow utilities to create a more stable and efficient grid, it will also allow consumers to see the real time cost of electricity which could encourage improved, more efficient usage. Knowledge of the costs of electricity at different times of the day would give consumers the option to shift power usage to times where demand is less and cost of power lower. Increased integration of renewable power would be greatly aided by this, as would the reliability of the nation’s aging electrical grid. Taking full advantage of a smarter grid would greatly enhance carbon-neutral power sources and is vital to combatting climate change.

This Comment argues that consumers can both have their cake and eat it too. Privacy can be adequately protected with carefully drafted laws while still allowing utilities and consumers to gain the advantages of a smarter grid. Antiquated privacy laws in many states either lack the privacy protections needed to adequately protect utility customers or have strict privacy protections that do not allow proper use of smart grid technology. Requiring balanced privacy protections for consumers will improve the implementation of the smart grid and reduce the large-scale opposition from privacy groups that has sprung up in many areas. This will allow utilities and consumers to take advantage of the smart grid technology to make informed choices on electricity usage and reduce climate impacts of electricity, all without having to surrender privacy within the home.