Environmental Law Review
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.
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. 50 No. 3
The poor, persons of color, and indigenous peoples often turn to the courts to correct the injustice of companies and governments causing environmental harms in their communities. Existing interpretations of tort, statutory, and constitutional law do not adequately fit the situations faced by environmental justice plaintiffs, however, so defendants often move to dismiss for justiciability reasons like lack of standing or the political question doctrine or for failure to state a claim. Plaintiffs therefore need to frame their lawsuit so it gives the best chance of surviving the motion to dismiss. One possibility is stasis theory from classical rhetoric, which provides a systematic strategy for identifying the most likely issue upon which a judge will rule and developing arguments and counterarguments around it. This Article explains how stasis theory can inform environmental justice litigation by explicating the pleadings, briefs, and opinions in two similar climate justice cases. Because the law upon which they rely is inapt or undeveloped, plaintiffs should avoid framing the case as one of disputed facts resting upon undisputed law because the defendants can shift the ground to the stasis of procedure. Having asserted that unsettled law is settled, the plaintiffs will lack convincing counterarguments to defendants’ challenges that only the political rather than judicial branches can address complex harms or that the plaintiffs lack standing, so the court will likely break the stasis in the defendants’ favor and order dismissal. The plaintiffs should therefore concede claims based on a legal entitlement and instead assume a fighting stance in the stasis of qualification where they can tap into the narrative of environmental justice to make appealing arguments. Those could be a request for equity because the law is not only ineffective but harmful, or because many common law torts or environmental or civil rights laws are close but imperfect fits for their situations, the plaintiffs could highlight rather than downplay this incongruity via recourse to one of the four legal stases. By conceding the higher grounds, the plaintiffs keep the fight away from arguments that are stronger for the adversary. The compelling stories of distributive and corrective injustice that plaintiffs can tell might create sufficient affective connections with the judge to persuade her to rule in plaintiffs’ favor. Having recognized the need for judicial intervention in the face of inadequate law, the judge then has a basis for denying the procedural challenges.
Louis J. Kotzé & Anél du Plessis
Although climate change litigation is rapidly increasing worldwide, and despite Africa being one region predicted to be most severely affected by climate change, the continent has not yet seen any significant growth in this specialized form of litigation. Only a comparatively small number of court cases have been recognized as climate-change conflicts in Africa. While briefly reflecting on possible reasons for this surprising trend, the primary objective of this Article is to offer a first comprehensive interrogation of the state and prospects of climate change litigation in Africa with a focus on three cases from South Africa, Uganda, and Nigeria. The analysis commences with a characterization of current trends in and forms of climate change litigation emerging the world over, including a brief assessment of the climate change conflicts usually litigated, and the challenges and benefits associated with this specialized form of litigation. The Article then discusses the unique nature of climate change impacts in Africa and assesses how this could shape the litigable climate change conflicts on the continent. Drawing on three cases from the countries mentioned above, and mindful of the risk of over-generalizing, the authors highlight and critically reflect on possible emerging climate change litigation trends in African courts, while also comparing them to trends now emerging worldwide.
Keith H. Hirokawa & Linnea E. Riegel
Cultural values reflect the ecosystems in which they develop. Various cultures across the globe have developed unique and interactive relationships with their surrounding environments, providing human societies with important cultural and resource connections. The depletion of natural resources and the disregard of the way ecosystems function present challenges for these connections. Of course, Congress has adopted laws intended to protect cultural resources, but such laws have failed to effectively navigate the competing interests in natural resources use and have undermined the integrity of specific places, ecosystems, and peoples. In large part, such failures are caused by design, prioritizing the use of natural resources and ignoring the role that the natural environment plays in forming cultural values.
The protection of cultural resources would benefit from an effective regulatory framework that demands consideration of non-market values provided by ecosystems. This Article offers an ecosystem services approach that focuses on the cultural benefits humans reap from functioning ecosystems. This approach goes beyond the market valuation of natural resources and recognizes that ecosystems provide valuable cultural benefits when left in place. Adopting a cultural ecosystem services approach to natural resources management will help understand where and how ecosystems provide cultural benefits and identify to whom they provide a benefit. Adoption, in turn, would produce a planning approach that demands a richer understanding of the flow of ecosystem services to ensure that the risks to, and trade-offs of, valuable cultural ecosystems play a role in managing the use of natural resources.
Robert w. Adler
Translational ecology is a comparatively new approach to the pursuit of ecology and other environmental sciences, the implications of which for environmental law have not previously been explored significantly. Emulating the concepts of translational medicine, proponents of translational ecology seek to increase the relevance of their research of important environmental problems by improving how effectively they communicate research results to end users of that science. These proponents collaborate with those end users to identify research that is “actionable” rather than purely “curiosity-driven” or theoretical, recognize that values as well as science have a legitimate role in environmental decisions, and engage in ongoing dialogues about the relationship between science and other issues and values to build trust across disciplines. Several major federal environmental statutes provide examples of ways in which translational ecology could contribute to better implementation of environmental laws. More broadly, translational ecology has the potential to transform the relationship between science and law in setting and implementing environmental policy.
Jacqueline A. O’Keefe
Although Rule 19 claims can arise in virtually any category of case, they have a particularly prominent expression in natural resource disputes. Cases involving natural resources commonly involve a great number of interests, represented by many parties. A recent Ninth Circuit case that is currently pending certiorari by the Supreme Court is an excellent example. In Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, an environmental group brought suit against the federal government for its issuance of various permits to the Navajo Nation for coal mining activities. The Ninth Circuit held that the case must be dismissed under Rule 19 because Navajo Nation was an indispensable party that could not be joined due to sovereign immunity. This case involved matters regarding real property, contracts, corporations, and prompted my research into common contexts for Rule 19 cases. Exploration of five common categories of cases in which Rule 19 claims arise provides insight into not only environmental cases but help elucidate a seemingly unpredictable area of law.
Locating Liability for Climate Change: A Comparative Analysis of Recent Trends in Climate Jurisprudence
Throughout the last half decade, plaintiffs across the country, and indeed the world over, have turned to courts in the eleventh hour hoping to hold governments and corporations responsible for causing and exacerbating the climate crisis. Most, but not all, of these cases have been unsuccessful. Notably, the Ninth Circuit recently dismissed Juliana v. United States, the well-known lawsuit wherein twenty-one young people alleged that the United States federal government violated their substantive due process rights by affirmatively causing climate change. In the wake of the Juliana holding, this Paper surveys recent climate-related case law in order to unpack why some cases have proven more successful than others. Specifically, the Paper focuses on two theories of liability for climate change: public nuisance and the public trust doctrine. In the public trust context, young people, the Juliana plaintiffs included, have brought a concerted campaign against governments seeking to vindicate alleged constitutional and public trust obligations. Such cases have been raised across the country in both federal and state courts and have led to mixed, albeit mostly negative, results. In the public nuisance context, cities, states, and counties have sued fossil-fuel companies for damages to compensate for these governments’ climate-related expenses. In comparing these two burgeoning lines of case law, this Paper focuses on the procedural obstacles holding climate claimants back—standing, political question doctrine, and preemption—and argues that none of these concerns should foreclose relief in either the public nuisance or the public trust contexts.
CLEAR THE AIR
Michael C. Blumm & Ryan J. Roberts
Dean Jim Huffman’s recent article in Environmental Law on the Oswego Lake decision claims that the Oregon Supreme Court’s decision is a “confused treatise on the public trust doctrine,” objecting to the court’s decision on a number of grounds, including its recognition of public access rights, its creation of a so-called “public use” doctrine, its use of the law of private trusts, and its recognition of the state’s claim of ownership of water within its jurisdiction. Moreover, somewhat astonishingly, Huffman claims that the rights of the people cannot be violated by the representatives of the people, seemingly ignoring over a century of case law. Although we agree with a few of Huffman’s criticisms, he overlooks some important public trust interpretations of the Oswego Lake court, such as its recognition of the trustee status of municipalities, and confuses other issues, like the state’s distinction between what it calls “navigable-in-fact” waters (those which support recreational watercraft today) and those those waterways that are navigable under the federal title test (commercially navigable around the time of statehood). We explain our criticisms in this essay.