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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. 49 No. 2

ARTICLES

A Requiem for Regulatory Takings: Reclaiming Eminent Domain for Constitutional Property Claims

Danaya C. Wright

For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas’s admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court’s regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes’s prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain it, I argue that the Court should embrace the common law of eminent domain to provide a rational and reliable set of parameters for evaluating the constitutionality of government action that stops short of physical appropriation. In order to reclaim eminent domain, however, the Court would need to reject Justice Scalia’s elision of the harm-avoidance/benefit-conferring distinction of Lucas v. South Carolina Coastal Council and embrace the balancing rule of sic utere. It also needs to rethink its rejection of the public interest factor in Lingle v. Chevron U.S.A., Inc., for proper balancing requires a consideration of the public interest served by government action. The Court should embrace the balancing of harms and benefits and the offsetting of benefits from harms that routinely occur in eminent domain determinations. And finally, the Court should require that a cognizable property right be appropriated if compensation is to be paid. Thus, by realigning our constitutional property protections with the common law of eminent domain, the incoherence of the Court’s current regulatory takings jurisprudence can be mostly eliminated. Although there will always be hard cases, relying on the centuries-old common law of eminent domain rather than the Court’s failed experiment with regulatory takings can help provide a sensible and rational way to balance private property with the public welfare.

Toward a Populist Political Economy of Climate Disruption

David M. Driesen

Most academic thinking about the political economy of climate disruption focuses on what one might call the political economy of compromise. This idea, grounded in public choice theory, posits that one must craft policy proposals sufficiently appealing to special interests to pass. This idea underlies academic support for emissions trading based on grandfathering, as emissions trading often appeals to industry (because it is inexpensive and flexible) and environmentalists (because it limits emissions).

This Article advances an alternative vision of political economy—a populist political economy. Political candidates and their advisors might craft a climate policy to attract active support from people and entities not normally involved in climate policy debates, because it offers significant non-climate benefits chosen to generate votes in elections. This idea might be valuable in the United States, where ideological opposition to climate policy has defeated the political economy of compromise nationally but populism is on the rise.

This Article will focus on the idea of a carbon tax with revenue devoted to popular priorities (as opposed to environmental protection or deficit reduction), to illustrate the concept’s potential. It will discuss how to identify priorities sufficiently appealing to voters to motivate displacement of recalcitrant politicians.

Regulatory Shaming

Sharon Yadin

Should the government engage in public shaming? This Article is the first to define and explore an intriguing practice—“regulatory shaming.” Regulatory shaming refers to the publication of negative information by administrative agencies concerning private regulated bodies, mostly corporations, in order to further public-interest goals. For instance, regulatory agencies such as the Occupational Safety and Health Administration send out condemning press releases and use social media to publish workplace safety violations with the names of responsible companies, while the United States Securities and Exchange Commission and the Food and Drug Administration shame companies for high internal pay gaps and for blocking competition in the pharmaceutical industry. The United States Department of Health and Human Services rates nursing homes on a one to five star scale, and the United States Environmental Protection Agency assigns color ratings to factories according to level of compliance with environmental regulation.

The practice of regulatory shaming is at a crossroads. While some agencies are adopting shaming strategies, others do not; some are even rolling them back. In light of these contradictory trends, it is time to seriously explore shaming by administrative agencies from a normative perspective. The Article argues that shaming can be a legitimate, efficient, and democratic regulatory approach, and it suggests general considerations for utilizing shaming tactics.

Disciplining Utopia: The Future of Cooperative Landholding

Jedidiah J. Kroncke

Experimentation in communal land is an American tradition. From the colonial era onward, citizens have been inspired to build communities predicated on religious or economic ideas of property that would today be considered radical. Many historical American social movements, especially those tied to racial justice, explicitly imagined a communal relationship to land. Thus, while often held out internationally as the leading normative proponent of individual property rights, the United States has historically been seen as a destination for enacting experiments in cooperative landholding.

While customary land practices are still pervasive globally, the trope of the tragedy of the commons has nevertheless lent an air of inevitability to the privatization of land. Yet, at the turn of the twentieth century the most popular American economist was Henry George. George inspired attempts at home and abroad to recommunalize land based on an aggressive critique of private land markets. Georgist communities used common law trusts to organize land collectively on which communities could then grow. While experiments in this vein and other traditions of what are now called “intentional communities” have shown some durability, they have not yet been able to provide an easily accessible precedent for large segments of the American population to “opt-out” of land markets—equally true internationally in the struggle over alternative forms of development.

This Article examines these visions of cooperative landholding through a historical and comparative analysis to develop new insights for this now-frustrated and submerged American tradition. Primary among these is the growing disconnect of intentional land communities from social movement politics and their flawed embrace of idealized imaginations of how traditional communal land tenure systems operated. Such traditional systems were both routinely nondemocratic, and required the production of coercive norms which precluded easy exit by participants. In contrast, the domestic and international experience of other common interest land communities demonstrates that modern legal forms are unlikely to generate these types of coercive bonds on their own, and that thinner forms of commitment are more likely to produce dynamics of replication. Conservation and indigenous land trusts hold similar lessons for how the legal design of communal land is central to their success.

At the same time, the transition over the twentieth century from communal land being held in a trust to being held through the corporate form has only hastened the degeneration of land cooperatives, as many communitarians have prioritized localist direct democracy over the legal self-discipline that enables longitudinal commitments and durability. This Article posits that constructive legal self-discipline can be achieved through a renewed use of trusts or hierarchically-organized corporate collectives. Networking such institutions can more effectively confront startup barriers and regulatory dissonance, but most importantly allows communitarian land holding develop into genuine alternative models which can be accessed by citizens from all strata of society.

Toolkit for Integrating Climate Change into Ten High-Enrollment Law School Courses

Warren G. Lavey

Lawyers practicing in many areas require knowledge and skills related to climate change. While climate-related laws, regulations and cases appear in environmental and natural resources law courses and are the focus of seminars in some schools, these offerings reach relatively few law students. Most law courses do not include climate-related cases and other materials even when such resources would be useful in teaching fundamental competencies and skills in the subjects. Consequently, many current law students do not understand the challenges of and responses to climate change, affecting many aspects of the American governments, society, economy, and environment. Environmental law professors and, to a lesser extent, practitioners could help other faculty integrate climate change into the curriculum of at least ten basic or other high-enrollment, widely-offered law courses—contracts, property, torts, civil procedure, constitutional, business associations and securities, tax, administrative, land use planning, and international law. This Article describes the basis for this initiative, presents a toolkit of climate-related cases and other readings organized by law school course subject, proposes questions to guide students in the readings and class discussions, and suggests actions for law professors and lawyers around the United States and globally.

Specialization Trend: Water Courts

Vanessa Casado Perez

Defining property rights is not useful unless there is an enforcement system, either public or private, that backs it up. While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked. With climate change, water is becoming scarcer and conflict is rising. As a result, the need for an efficient and fair enforcement system is more necessary than ever.

Given the complexity of water law and the backlog in the judicial system, introducing specialization in the resolution of water cases should be encouraged. Enforcement may take different forms: from administrative agency decisions to judicial decisions. This Article focuses on the judiciary, where specialization in the environmental arena has gained traction in recent decades in the United States and abroad. Specialization ensures faster resolution and better-quality decisions. To achieve those benefits, jurisdictions do not need to create a whole new system of courts necessarily. For example, in water, specialization in the judiciary can range from special masters assisting generalist judges in water cases or general judges who get assigned all water cases on the docket to full-fledged specialized courts. Some jurisdictions have already introduced some of these measures. Other jurisdictions feel an acute need for them. This Article offers water-scarce jurisdictions a portfolio of specialization strategies for their judiciaries to solve water disputes and, perhaps, other climate change induced disputes.

First, the Article covers how the literature has analyzed specialized tribunals across different legal areas, along with their advantages and disadvantages. Second, it establishes the need for specialized water courts and their procedural particularities. Factual and legal complexity of water disputes demands specialization both at the trial and at the appellate level. Third, the Article analyzes existing examples of water courts. The cases analyzed include Colorado, Southeastern Spain, South Africa, and Montana water courts. In addition, it includes examples of other forms of specialization. The Article concludes by highlighting the lessons and guidelines that can be learned from those specialized strategies and advocates for incremental measures towards specialization, both in institutional design and in procedural rules.

Foundations of Insider Environmental Law

Jonathan Rosenbloom & Keith H. Hirokawa

Our Essay questions how we understand local governance of the environment. From the perspective of those outside a city, the city can be understood through an external perception of what is “good” or “bad” about the city. One might visit a city to witness the location of natural wonders, architectural or artistic features, and famous marketplaces, or events such as concerts, marches, and parades. The visitor can say, “I was there” or “I have seen that.” However, there is something missed by the outsider that is captured when an individual and a community declare, “this place is us.” This perspective, what we call the “insider’s perspective,” prioritizes the knowledge that emerges from the insider’s place-based viewpoint, including local values, relationships, myths, and mysteries. The insider perspective illuminates the attachment between local community and environmental features, and, in a meaningful way, helps to explain why that attachment is translated into local regulation of the environment. This view of local environmental regulation is “Insider Environmental Law.” It is the result of a community’s engagement with a particular local environment, the development of that community’s identity in a specific environmental context, and even the community’s survival and flourishing against the challenges and opportunities that are felt locally.

By distinguishing an insider’s from an outsider’s perspective, an analysis of local governance can view local regulation in a way more consistent with local communities and provide a better understanding of why communities do what they do. In the Essay, we explore classic rationales explaining local governance, including representation, democracy, participation, and a commitment to good and efficient governance. Relying on objective, uniformly practiced governance values, the rationales explain some aspects of local governance. In our view, however, the decentralization theories miss an important point about local governance. Specifically, there is no space reserved for the “here”—no space for the consideration of the manner in which place plays a role in the development of community identity and values and how that translates into local regulation.

 

 

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