Environmental Law Review

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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.

Additional content is available on our online journal, Environmental Amicus, which features online ideas from Environmental Law contributors and more. 

 

Current Issue: Vol. 52 No. 2

 

LAND ACKNOWLEDGEMENT

 

ARTICLES

The World’s Largest Ecosystem Management Plan: The Northwest Forest Plan After a Quarter-Century

Michael C. Blumm, Susan Jane M. Brown, & Chelsea Stewart-Fusek

For decades, the public forests of the Pacific Northwest were subject to widespread clearcutting of their old-growth trees as part of a federal policy promoting industrial logging. That era came to an end in the early 1990s, due to court injunctions enforcing environmental laws like the National Environmental Policy Act and the National Forest Management Act, as a response to diminishing old-growth dependent species like the northern spotted owl. Fulfilling a campaign promise to resolve the contentious issue by protecting both wildlife habitat and a logging industry important to local communities, President Clinton and his administration conducted a remarkable 1993 symposium on the economics and science of preserving rapidly disappearing habitat for Endangered Species Act- listed species like the northern spotted owl and several salmonids. The result was the 1994 Northwest Forest Plan (the NFP or the Plan), widely recognized as the largest commitment to ecosystem management worldwide. Somewhat surprisingly, the NFP is still in effect over a quarter-century later, despite determined efforts to eviscerate it.

This Article examines the NFP, its antecedents, provisions, court interpretations, and future. In many respects, despite persistent controversy over the legal underpinnings of the NFP, the Plan has provided substantial protection for the Northwest’s federal forests, and—although it did not end all public timber harvests—largely ended harvesting of public old-growth forests. Moreover, the Plan’s aquatic protection strategy has proved quite effective and worthy of emulation elsewhere. A postscript to this Article considers the effect of the recent Biden Administration executive order concerning old- growth forests on the NFP.

Although the Bush administration’s repeated efforts to terminate the Plan failed, the Obama administration removed about ten percent of the federal forests subject to the Plan from its reach, substantially undermining its ecological premises. The courts have so far sustained these removals, casting a pall of uncertainty over efforts to update the NFP to reflect current challenges posed by wildfires and climate change. This Article suggests that the goals of a revised NFP should be linked to the role that federal public Pacific Northwest forests can play in the U.S.’ international obligations to combat climate change. We recommend a number of changes to the NFP, including ending both post-fire salvage sales and the logging of mature and old-growth forests. To accommodate these changes, we suggest providing a “just transition” for affected rural communities and increased flexibility concerning the boundaries of protective terrestrial reserves in the southern reaches of the Plan. We maintain that despite lingering uncertainty about its scope of coverage, the NFP can and should continue to provide the signature example of landscape planning worldwide.

 

Are Sanctions the New SLAPP? Analyzing Oil Companies’ Weaponization of Ethics Accusations Against Human Rights Attorneys

Shannon Marcoux

This Article addresses a troubling trend that has emerged in the human rights and environmental rights litigation space over the last decade: the weaponization of ethics-related allegations against plaintiffs’ attorneys as an attempt to suppress litigation. While some states, though certainly not all, have passed legislation to address the harm caused by strategic lawsuits against public participation (SLAPPs), there is not a similar legislative effort to combat newer scrupulous litigation tactics. This Article situates the current weaponization of ethics complaints and sanctions against environmental attorneys within two larger historical phenomena: the longstanding phenomenon of weaponizing ethics and professional responsibility rules as an exclusionary tool within the legal profession and the development of increasingly scrupulous litigation tactics in environmental lawsuits.

 

Chasing Squirrels in the Energy Transition

Heather Payne

Due to the global lack of action to address emissions that cause climate change, more extreme options such as geoengineering, direct air capture, and carbon capture and sequestration (CCS) are being touted as both necessary and a way to enable the world to continue utilizing fossil fuels into the future. While all of these extreme options are economically prohibitive, technologically, CCS is the furthest developed, with pilot projects and some commercialization activities occurring. In addition to cost, the uncertain legal liability for CCS in the United States has so far hindered wide-scale adoption and development.

This Article argues that due to the nature of the potential harms of CCS projects—asphyxiation, releases to the atmosphere that contribute to climate change, and degradation of water quality—the United States should adopt a strict liability regime. Inadvertent releases of carbon dioxide stored in CCS projects would impact the whole world by increasing the amount of carbon dioxide in the atmosphere. However, the local impacts could be much more pronounced. As demonstrated by spontaneous releases of supersaturated carbon dioxide in Africa and the gassing of a small Mississippi town due to a rupture of the carbon dioxide pipeline that runs through it, a large release of carbon dioxide can sicken or kill. Given the technology currently envisioned, there is also a potential for water contamination, which could be especially problematic in the arid West. The push by some would-be CCS project developers is to dramatically limit liability. However, harms might not be discovered or occur until decades after the initial injection. But those harms are currently foreseeable, and catastrophic.

After discussing the current experience with CCS, this Article discusses the technology, its limitations, harms and their foreseeability, and how the risks caution for the affirmative adoptionof strict liability. While this Article focuses on the CCS, it could just as easily be written about hydrogen, coal gasification, or small module nuclear reactors. Using legal paradigms, we can stop chasing squirrels in the energy transition.

 

COMMENT

Land Land Use Regulations, Climate Change, and Regulatory Takings

Emily Guimont

By all indications, climate catastrophe is quickly approaching and will require that we employ all possible resources to counter it. This Comment focuses on the often-overlooked little guys: The local governments—cities, towns, counties—who have the most direct control over land use through tools such as comprehensive planning, zoning, and building codes. With a committed governing body and willing constituency, these local governments have the ability to take meaningful steps to reduce the causes and mitigate the effects of climate change.

However, these steps could bring local governments in conflict with the 5th Amendment’s Taking Clause, which prohibits the government from taking private property for public purposes without compensation. The regulatory takings doctrine, which holds that a government may commit a taking by simply regulating private land, complicates this risk: In order to address climate change, local governments must comprehensively, and perhaps strictly, regulate private land uses, but they likely cannot afford to litigate or pay compensation if those regulations are alleged to be takings. Therefore, it is vital that local governments understand the regulatory takings landscape so they can effectively regulate while avoiding litigation and costly compensation.

To that end, this Comment provides an overview of land use regulations and how they may be used to combat climate change; discusses the development of regulatory takings and current jurisprudence that impacts local governments; and provides suggestions to local governments who wish to effectively regulate while steering clear of any takings claims.