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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.

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. 48 No. 3

ARTICLES

Crafting Next Generation Eco-label Policy 

Jason J. Czarnezki, K. Ingemar J├Ânsson & Katrina Kuh

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that public exposure of the label (so that people see it) and the exposure of the purchasing behavior (so that other people can see that you have bought the product) are key elements to the success of eco-labels—the social context around product purchasing may be as important as the eco-label itself. We recommend that behavioral insights be used to improve ecolabeling as traditionally understood by incorporating knowledge about behavioral tendencies into label design so as to allow for more accurate matching of consumers’ preexisting environmental preferences to eco-labeled goods, and develop mnext-generation eco-labeling policy with the potential to significantly expand the market for eco-labeled goods. Specifically, 1) Eco-labels could be purposefully designed and implemented to attract consumers motivated by social norms; 2) Eco-labels could appeal to a wider range of abstract norm alternate more broadly or locally accepted and strong abstract that are stronger and/or more broadly accepted or locally salient; and 3) Eco-labels could highlight private, near and near term benefits.

The Limits of Self-Interest: Results from a Novel Stated-Preference Survey to Estimate the Social Benefits of Life-Prolonging Regulations

Adam M. Finkel & Branden B. Johnson

The benefits of health, safety, and environmental regulations will be underestimated if regulatory agencies produce risk estimates that are biased low, but also if they undervalue the risk reductions that regulations offer. In such cases, regulatory interventions that would generate social benefits in excess of their costs will mistakenly be turned down. Conversely, overestimation or over-valuation of benefits will result in adoption of regulations whose costs exceed their true benefits. For several decades now, both of the standard methods used to estimate the value of a statistical life (VSL)—stated-preference and revealed-preference designs—construe the tradeoffs involved at a “micro” scale: individuals are asked to (or observed as they) react to a very small probability of grave harm affecting themselves, and trade off small changes in economic welfare in response. But regulators then apply the resulting VSL estimates to a quite different set of circumstances, wherein society collectively marshals large sums of money (tens of millions of dollars or more) to avert hundreds or thousands of “statistical fatalities” over a large population, rather than a fraction of a single life.

As part of a larger psychometric survey probing laypersons’ “regulatory cost literacy” and their attitudes towards uncertain regulatory costs and benefits, we instead posed questions at a “macro” scale that resulted in valuation estimates that may complement or challenge prior approaches to this issue. Depending on whether and how we excluded outliers, the mean response in our survey ranged from $5.5 million (in 2012 U.S.dollars, close to the roughly $9 million value currently used by many U.S. federal regulatory agencies) to $31.5 million. Our new stated-preference approach attempts to measure the “social value of life-prolonging regulatory benefits,” rather than the respondent’s personal valuation of a small change in her own mortality risk. Citizens may express higher implicit valuations when asked to gauge the acceptability of large life-prolonging regulatory programs because they are free to let altruism, and a concept we call here “shared purpose,” affect their thinking. We regard “shared purpose” as a feature of these benefits estimates, not a “bug.” Other implications of this novel approach for benefits imputation include the advantages of eliciting expressions of personal uncertainty rather than a single-point tradeoff, and the effects of anchoring tradeoff elicitation on either costs or benefits rather than solely on risk reduction benefits. We recommend more systematic reporting of inter-individual distributions of imputed valuations within micro-scale stated-preference studies. Time will tell whether this new method eventually becomes a useful complement to standard methods for informing regulatory benefit-cost analysis, or merely is a productive prompt to test the strengths and limitations of those standard methods more carefully.

COMMENTS

Investing in the Future: Why the SEC Should Require a Uniform Climate Change Disclosure Framework to Protect Investors and Mitigate U.S. Financial Instability

Robyn Bishop

Climate change is one of the most complex issues facing the United States and global economies today. International reduction of greenhouse gas emissions demonstrates a move away from fossil fuel energy and other related industries, and a transition to a lower carbon economy may disrupt economic sectors and cause sudden losses in global economic value. Over the past several years, many securities regulators and stock markets have begun to recognize that climate risks may be material to investors and financial markets. This shift sparked the creation of alternative disclosure frameworks, such as the Sustainability Accounting Standards Board (SASB) and the Task Force on Climate-Related Financial Disclosure (TCFD). This Comment recommends that the Securities & Exchange Commission require a uniform climate change disclosure framework, like SASB or TCFD, to protect investors and mitigate United States financial instability. This Comment begins by exploring the impacts of climate change on the economy, then provides a summary of the current SEC regulations. Next, it details both SASB and TCFD, and it concludes by addressing the benefits and challenges of the federal government adopting a third-party framework and the implications of imposing a more stringent system, using federal and local government adoption of Leadership in Energy and Environmental Design (LEED) green building standards as an example.

CHAPTERS

Wildfire Litigation: Effects on Forest Management and Wildfire Emergency Response

Elias Kohn

A fifteen-year-old boy recently launched a firework into a dry ravine and torched 48,000 acres of “pristine” forests along the Oregon Columbia River Gorge. The simple narrative follows that, absent this individual’s behavior, the Eagle Creek Fire would never have occurred. The problem with this simple narrative is it does not sufficiently consider the underlying causes of wildfires. The Eagle Creek Fire was not an isolated event. Rather, the fire was one of many increasingly damaging and uncontrollable wildfires fueled by multiple causes. This trend of increasingly damaging wildfires should raise questions about whether litigating after a wildfire, in order to deter careless behavior, can address these underlying causes, or whether some litigation may actually stall improvements to wildfire management. This Chapter suggests that the current litigation model may exacerbate some of the underlying causes of wildfires by deterring preventative fire management and restricting the use of prescribed burning, which is a tool that can mitigate wildfire damage. This Chapter also suggests that the current litigation paradigm negatively affects components of wildfire emergency response.

Tribal Rights to Groundwater: The Case of Agua Caliente

Zeslie Zablan

In 2017, the United States Court of Appeals for the Ninth Circuit ruled in favor of the Agua Caliente Tribe of Cahuilla Indians in a suit brought by the Tribe against two California state water agencies. In a monumental decision, the Ninth Circuit held that the Tribe had reserved rights to the groundwater underlying its reservation under the Winters doctrine, a century-old legal doctrine which governs reserved water rights on federal reservations of land. Although the core principles of the Winters doctrine are longstanding, many questions concerning the scope of the doctrine have remained unresolved. The holding of Agua Caliente is thus a historic decision, representing the only federal appellate authority explicitly extending the Winters doctrine to groundwater.

Agua Caliente is a significant victory for tribal water rights and can even be called groundbreaking. However, this Chapter argues that the Ninth Circuit’s ruling was not at all unprecedented. After examining the controlling case law, this Chapter concludes that the Ninth Circuit reached the correct result, as the holding in Agua Caliente aligns with Winters and its progeny. As the Supreme Court did in the Winters case that established the reserved rights doctrine, the Ninth Circuit in Agua Caliente has adhered to an enduring rule of fairness intended to give meaningful effect to the rights of Indians. 

ESSAYS

The Renaissance of Federalism 

Clint Bolick

In the following article, Justice Clint Bolick addresses a subject that should be of interest to environmental law students, practitioners and regulators. “Federalism,” writes Bolick, “is the fabric of our constitutional tapestry.” How particular political interests and parties view that tapestry depends, observes Bolick, on who holds power in our various governments. In pursuit of uniform national standards, those holding power in the national government tend to discount the scope of the states’ powers, but when those same interests are in the national minority they contend for federalism-based limits on national authority and more expansive state and local powers.

The history of environmental regulation since the 1960s reflects this opportunistic and unprincipled (Bolick calls it situational) approach to constitutional federalism. As advocates for environmental protection gained influence on the national political stage, they were able to persuade Congress to enact an assortment of national environmental laws relying heavily on Congress’s power under the constitution to regulate interstate commerce. A result was preemption of some state laws and reduced reliance on common law remedies. Objections by some states that these laws intruded on the reserved powers of the states were largely unsuccessful in the courts. But the Trump administration’s effort to roll back many of these national laws has led to a newfound interest on the part of environmental advocates in state and local regulation.

And that, argues Bolick, is a promising reminder of the founders’ wisdom in establishing federalism’s vertical separation of powers. Although state powers have been steadily eroded over the last century, the shifting political consequences of a powerful national government have helped sustain bipartisan support for the preservation of significant powers in the state governments. No doubt Bolick would prefer a more principled, less situational, stance on the vertical separation of powers from both ends of the political spectrum, but he is a realist as were those who designed the federal system more than two centuries ago. The founders conceived federalism as one of many structural restraints on the abuses of power that otherwise arise, inevitably, from political factionalism.  

Federalism debates are often framed as federal power versus states’ rights. But Justice Bolick reminds us that it is people, not states, that possess rights. Three examples of what Bolick calls “civil-disobedience federalism” underscore the importance of federalism to individual liberties. Recent state initiatives with respect to sanctuary for immigrants, legalized marijuana and the right to try experimental drugs all are driven by concerns for individual freedom. Similar concerns for the rights of individuals arise from both environmental degradation and environmental regulation. Justice Bolick’s article suggests that greater reliance on state and local governments, what he calls the “laboratories of democracy,” can benefit both freedom and the environment.

 

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