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Environmental Law Review

Established 1969         

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.

Current Issue: Vol. 51 No. 1

EDITOR’S NOTE

Sara Slabisak

Editor in Chief

ARTICLES

Administrative Bulkheads

Kenta Tsuda

Administrative agencies routinely predict the effects of their policy decisions. Unsurprisingly, they err, sometimes with catastrophic consequences. The cost of administrative prediction failure has been paid in lives, devastated ecosystems, untold sums of squandered tax dollars, and foregone wealth. As familiar names like Deepwater Horizon, Flint, and Fukushima attest, even in advanced industrialized societies, environmental policy remains a domain in which administrative prediction failure is strongly felt.

A crucial task for administrative law is to reduce the toll of such bureaucratic mistakes. One means is an administrative bulkhead rule: a rule that circumscribes administrative power where the costs of prediction failure are greatest. Like collision bulkheads in ships, such rules cabin the downside risk of prediction failure. This  Article confronts the problem of agency prediction failure and the applicability of a bulkhead rule under one of the United States’ most important administrative-environmental laws, the National Environmental Policy Act (NEPA). In passing NEPA, Congress attempted to impose analytical rigor and environmental solicitude  on federal policy making. Today however, courts and agencies interpret NEPA to impose no coherent instructions regarding how they are to approach decisions that pose low probability but catastrophic risks to the environment. The prevailing  interpretation is wrong.

This Article interprets NEPA to provide a “bulkhead rule.” Surveying the statutory text and the voluminous case law interpreting it, this Article argues the statute’s scope and significance thresholds are subject to raised administrative-review  requirements where actions have potential non-localized impacts. Uncertainty is treated differently depending on the cost of an agency mistake: where risks are not localized, and can imperil systemically important natural systems, the law demands deeper scrutiny and onerous procedural checks.

A Sketch of Ecological Property: Toward a Law of Biogeochemical Cycles

Peter D. Szigeti

We are already seeing the combined effects of a global bundle of ecological catastrophes: not only climate change, but also ocean acidification, mass extinctions, habitat losses, and different types of chemical pollution. Legal adaptation to the unfolding ecological catastrophes has so far been public law–focused: mostly international law and administrative/environmental law. We can  now say leaving ecological adaptation to domestic and international public law has not brought the required results, and it is time to “ecologize” property law at the very least. But how can this be done?

The way to make property law ecologically responsive is to change the basic building blocks of property rights. Instead of imaginary containers made up of invisible lines on the ground, property would be maintained and calculated as shares of the basic biogeochemical cycles that sustain all life on Earth (the carbon cycle, the water cycle, the nitrogen cycle). The first principles of property should be
the collective responsibility to maintain existing biogeochemical cycles as cycles, and not create new poisonous cycles such as the dioxin cycle, the methylmercury cycle, or the microplastics cycle. Further basic principles would include limited alienability, cyclical trade, and staggered ownership of resources. These principles
would both make property ecologically responsive and maintain it as a workable system of entitlements and free-market exchanges. Such a system is not only possible, but also has strong examples and antecedents within the common law as well as statutory and international regulatory systems.

The Emerging Law of Outdoor Recreation on the Public Lands

Robert B. Keiter

Outdoor recreation is assuming a prominent role across the public lands, presenting the responsible federal agencies with difficult, new management challenges. Since World War II, recreational uses of public lands have been on a steady upward trajectory, which has only accelerated during this century. Today, an increasingly diverse array of outdoor activities, each pressing for greater access to the public domain, is spawning considerable controversy while raising  corresponding environmental concerns. The outdoor recreation industry is now an economic powerhouse and, together with recreation participants, is becoming a notable political force. Curiously, prevailing law says very little about recreation on the public lands, unlike the laws governing timber, mining, and other resource uses. Instead, Congress has broadly delegated management authority to the responsible agencies and otherwise primarily relied upon special protective designations—national parks, wildlife refuges, and wilderness areas—and various funding mechanisms to meet recreation demands. As a result, the agencies,
presidents, and courts are piecemeal developing what amounts to a common law of outdoor recreation. This Article explains how that is occurring and what it portends for recreation policy on the public lands, while also suggesting additions to the governing law.

Beyond Emissions: Migration, Prisons, and the Green New Deal

Wyatt G. Sassman & Danielle C. Jefferis

The Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond
emissions reductions, and who should be a part of this conversation?

Using examples from immigration law and policy, this Article envisions what climate policy beyond emissions looks like in two key areas: climate migration and immigration detention. Rightfully so, the Green New Deal makes several gestures toward the impact its proposals would have on immigration policy and migrant
communities. The Green New Deal identifies that climate change will cause—indeed, already has caused—mass migration, labels climate change as a national security threat, and recognizes that climate change will disproportionately impact migrant communities. And it expressly sets out to stop and prevent further  oppression of migrant communities. As a framework, the Green New Deal demands attention to the intersection of climate and immigration policy and meaningful commitment to reforms in the areas of immigration law that the Green New Deal impacts.

We argue that failure to consider the role of immigration reform in climate policy risks undermining the Green New Deal’s goal of aligning environmental and economic policy with racial, social, and economic equality, as well as its specific goals focused on migrant communities. To address the impact of climate change on mass migration and vulnerable communities, immigration reform should be understood as a key element of climate policy guided by the Green New Deal. We start that conversation by offering proposals that integrate key immigration reforms into a climate policy that looks beyond borders and beyond prisons.

ESSAYS

Integrating Social and Environmental Safeguards in the Implementation of the Paris Agreement’s Sustainable Development Mechanism

Railla Veronica D. Puno

Climate change is without a doubt the single most daunting challenge of our time. The impacts of climate change are already being felt and indicators show that they are here to stay. While early projections demonstrate that the Paris Agreement falls short of the efforts needed in the face of the looming climate crisis, the inclusion of new mechanisms to address climate change are promising. Article 6.4 of the Agreement provides for a new system, called the Sustainable Development Mechanism, which aims: “(a) To promote the mitigation of greenhouse gas emissions while fostering sustainable development; (b) To incentivize and facilitate
participation in the mitigation of greenhouse gas emissions by public and private entities authorized by a Party; (c) To contribute to the reduction of emission levels in the host Party, which will benefit from mitigation activities resulting in emission reductions that can also be used by another Party to fulfill its nationally
determined contribution; and (d) To deliver an overall mitigation in global emissions.”

At present, it is hard to determine whether this mechanism will be effective given that the Parties to the Paris Agreement have been in a stalemate over its rules, modalities, and procedures since 2018, even as the rest of the Paris Agreement “rulebook” was adopted by the Parties that year. It is vital that social and environmental protections are in place before the mechanism is fully implemented
to ensure that the guiding principles of the Agreement—including the promotion of human rights, ecosystems integrity, and climate justice—are respected when taking action to address climate change. To this end, best practices on environmental and social safeguards, as utilized under the Green Climate Fund and the REDD+ Framework, should be incorporated under the Sustainable Development Mechanism.

Law as an Instrument to Solve the Orbital Debris Problem

Edwin Kisiel

In the last half century of space exploration and use, thousands of satellites have been launched to orbit Earth. These satellites perform essential functions to foster global communication, navigation, and security duties. However, the prevalence of
satellites and space exploration have increased the amount of debris in space and ultimately, the risk of collisions. If the orbital debris problem remains unchecked, large parts of Earth’s orbit could become unusable due to numerous potential debris
obstructions. The technology to track and remove debris from orbit is becoming more feasible, and these advances now demand development of a legal solution to match. The legal solution proposed in this Essay uses the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as a model to
create a system of financial incentives for satellite owners and operators to cover orbital debris cleanup costs and settle claims for collisions and cleanup through international commercial arbitration. Implementing this legal solution would give satellite owners and operators incentive to minimize the risk of collision and
would equitably assign the responsibility to ensure cleanup of orbital debris.

Energy Transitions in the Trump Administration and Beyond

Alexandra B. Klass

This Essay evaluates U.S. transitions in the energy sector between 2016 and 2020 against the backdrop of the Trump administration’s stated priorities regarding energy policy and the administration’s successes and failures in implementing those policies. Specifically, this Essay details President Trump’s policies and regulatory actions with regard to the electricity sector, the transportation sector, energy development on public lands, and federal approvals of energy infrastructure projects. It ends on a somewhat hopeful note, recognizing that while the Trump administration certainly slowed the pace of a U.S. clean energy transition, the transition continued to make forward progress as a result of countervailing trends in
economics, technological advances, private sector preferences, and policy development at the state and local levels. Thus, a foundation exists for the Biden administration to accelerate that transition, hopefully in time to minimize U.S. contributions to global climate change and create the clean energy economy we urgently need. 

COMMENTS

Atlantic Richfield Co. v. Gregory A. Christian et al.: Can Strict Liability be too Strict?

Rachel Jennings

On December 3, 2019, the Supreme Court of the United States heard oral argument for Atlantic Richfield Co. v. Gregory Christian, which involved one of the largest and oldest Superfund sites in the U.S.—the Anaconda Smelter. The case chronicles the conflict between one of America’s dirtiest industries and the residents who suffered while the Smelter thrived. The underlying case, Gregory Christian v. Atlantic Richfield Co., and the Atlantic Richfield Co. (ARCO) appeal raised issues of first impression for both the Montana state courts and the Supreme Court. This case revealed tensions between the Comprehensive Environmental Response,  Compensation, and Liability Act of 1980 (CERCLA), a complex federal statute, and areas of authority traditionally left to the states—namely land use and property ownership—resulting in questions of federal supremacy, due process, and statutory
construction.

This Comment focuses on the issue of whether landowners within a
Superfund site are necessarily required to seek permission from the Environmental Protection Agency (EPA) in order to undertake activities on their private properties or face severe consequences under CERCLA. By definition, these landowners classify as “covered persons” under section 107(a) of the statute but whether these individuals would also qualify as “potentially responsible parties” (PRPs) under the statute remained an issue of first impression. The importance of this question should not be underestimated. Whether the property owners, who were expressly absolved of any possible liability by the EPA throughout litigation, would somehow become PRPs under CERCLA after over thirty-five years of the EPA’s involvement at the site, and only just before ARCO’s filing of its petition for certiorari to the Court, raises serious due process concerns for individuals living within Superfund sites.

Leveraging Mandatory Licensing Under the Clean Air Act — A Novel Framework to Domestic Reduction of Greenhouse Gases

Jessica Bernardini

With climate change looming closer to the tipping point each day, and the United States government unable to pass any form of a comprehensive climate action policy, the Environmental Protection Agency (EPA) must step up to fill this void. At this time, many environmentally beneficial technologies exist that can mitigate
climate change. For instance, many fossil-fuel companies hold patents to some of the most promising carbon neutral or carbon negative technologies. Unfortunately, the Patent Act does not require that these technologies be put into practice. This Comment proposes a two-step framework that leverages a never-utilized provision of the Clean Air Act, the Mandatory Licensing provision, and the EPA’s authority to regulate greenhouse gases under the New Source Performance Standards, to fill the void left by the absence of a comprehensive federal climate action policy.

The two-step framework this Comment proposes relies on the EPA’s existing authority and agency deference in regulating greenhouse gases from fossil-fuel electric generation plants. First, the EPA utilizes a statutorily authorized pathway to regulate carbon dioxide emissions based on the availability of carbon-capture technologies. And second, the EPA invokes the Mandatory Licensing provision to  provide accessibility to the carbon-capture technologies in the marketplace. This Comment explores anticipated industry-based challenges to the proposed technology-based emission reduction standards and analyzes the potential impacts that invoking (or threatening to invoke) the Mandatory Licensing provision may have on the technology market and regulated industries. In addition, the Comment considers the potential to deter monopolistic behavior and how the market may proactively take control to avoid government intrusion and facilitate technology transfer at reasonable licensing fees. The Comment concludes with a brief review of a similarly stringent air pollution regulation that affected the fossil-fuel electricity generating industry and how this proposed framework may play out in light of that previous regulation.

With no comprehensive climate change policy, the EPA should establish a steep carbon dioxide emissions regulation of fossil-fuel electric generating facilities. To anticipate and counter industry claims of inaccessible technologies and to deter anticompetitive behavior, the EPA should leverage its full authority and invoke the Mandatory Licensing provision. Such an action would ensure technology transfer and reasonable licensing of critical patented technologies.