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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. 3

ARTICLES

LAW, EXPERTISE AND RULEMAKING LEGITIMACY:
REVISITING THE REFORMATION

Sidney A. Shapiro

In the 1960s and 1970s, the courts fashioned a slew of new administrative procedures resulting in a “reformation” of American administrative law as Richard Stewart’s iconic article characterized these developments. Once we expect administrative procedures to legitimize rulemaking by promoting interest group political pluralism, however, we lose sight of public administration as a political-legal system. There is, an even deeper problem, however. By focusing exclusively on constraint, both proponents and opponents of regulation ignore the contribution that expertise makes to the legitimation of administrative law. If administrative law is to legitimate administrative government, we need have a different conception of what we are doing. To be legitimate, an agency must do more than stay within its legal authority; it must also be able to protect people and the environment as Congress has required it to do. Administrative law, therefore, must facilitate that mission as well as constrain it.

CLIMATE CHANGE COMMON LAW NUISANCE SUITS: A LEGAL-EFFICIENCY ANALYSIS

Victor Flatt & Richard O. Zerbe

Multiple common law nuisance lawsuits have been filed against companies to either get them to stop emissions of greenhouse gases or to seek damages for harm from climate change. In American Electric Power v. Connecticut, the United States Supreme Court held that federal common law nuisance lawsuits for injunction of emissions activities were preempted by the Clean Air Act. The viability of state common law nuisance lawsuits, especially for damages, remains an open question, though several lower courts have weighed in on various aspects.

This Article provides an economic analysis showing that common law strict liability nuisance lawsuits for climate change damages would increase economic efficiency in all circumstances as well as provide an important incentive for climate change mitigation innovation. Because nuisance determinations can turn on arguments of economic efficiency, we argue that our findings argue for state common law nuisance lawsuits for damages from greenhouse gas emissions to be preserved and allowed to go forward.

CONSTITUTIONAL ENVIRONMENTAL LAW, OR, THE CONSTITUTIONAL CONSEQUENCES OF INSISTING THAT THE ENVIRONMENT IS EVERYBODY’S BUSINESS

Robin Kundis Craig 

Constitutional environmental law has become a recognized and institutionalized specialty within environmental law, an acknowledgement of the pervasive interactions between the U.S. Constitution and the federal environmental statutes that go well beyond the normal constitutional underpinnings of federal administrative law. This Article posits that constitutional environmental law is the result of Congress consciously deciding that environmental protection is everybody’s business—specifically, from Congress’s decisions that states should participate in rather than be preempted by federal environmental law, that private citizens and organizations should help to enforce the statutes, and that private land and water rights are necessary components of national environmental protection. Nevertheless, despite almost five decades of constitutional environmental litigation and scholarship, the federal courts had never recognized environmental rights within the U.S. Constitution until 2016, raising the possibility that constitutional environmental law may soon assume another dimension.

IS THE ENVIRONMENTAL APPEALS BOARD UNCONSTITUTIONAL OR UNLAWFUL? 

William Funk 

The Supreme Court’s decision in Lucia v. SEC, holding that Administrative Law Judges are officers of the United States, raises various questions regarding other administrative officials not traditionally considered officers of the United States. This Article addresses the question whether the Environmental Protection Agency’s Environmental Appeals Board (EAB) is unconstitutional or unlawful. First, the Article establishes that in light of Lucia and other case law, the members of the EAB are clearly officers of the United States, but probably inferior officers. The question then is whether Congress has provided for their appointment by the Administrator of EPA, and there is no statute clearly so providing. The Article assesses whether the creation of the government-wide Senior Executive Service could constitute such authorization. Moreover, even if it did, it is not clear that the Administrator has the authority to delegate to the EAB his final decisional authority in EPA adjudications in light of other specific statutory authorizations of delegation but the lack of such an authorization with regard to the EAB. The Article does not suggest that it is unwise policy to have the EAB act in lieu of the Administrator to make final agency decisions in adjudications, but it does suggest that the current legal authority for the EAB is on shaky ground.

JUDGES, BUREAUCRATS AND THE LEVIATHAN STATE: A REPLY TO PROFESSOR FUNK (35 YEARS LATER)

James Huffman 

ESSAYS

DOMESTICATING GUIDANCE

Peter L. Strauss 

This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents—statements of general policy and interpretive rules—that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. ยง 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes or regulations. The APA is explicit that in adopting these texts, agencies are not required to use the notice and comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world—hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency’s political leadership for their adoption

Documents like these are common worldwide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency’s political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are “practically binding.” The basic arguments of this Essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies “binding” on some agency staff) from what impermissibly “binds” the public; and, second, that soft law instruments can often be found “final” for purposes of judicial review—if they are, in effect, the agency’s internal law—and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about “Auer deference” that the Supreme Court addressed in Kisor v. Wilkie1 twelve weeks after the celebration of Professor Funk are also briefly addressed.

ENSURING COMPLIANCE: EQUITABLE RELIEF IN THE FACE OF VIOLATIONS OF SUBSTANTIVE ENVIRONMENTAL STANDARDS

Craig N. Johnston 

COMMENT

THE APA AS AN ENVIRONMENTAL LAW

Ross A. Stansberry 

The Trump Administration took office with an environmental agenda focused on rolling back regulations promulgated by the Obama Administration. However, the Administrative Procedure Act (APA) has repeatedly stalled the Administration’s rushed deregulatory agenda because the Administration failed to satisfy the APA’s requirement to provide a reasoned explanation for its decisions. This is not the first time the APA has served as a roadblock to deregulatory administrations. The Bush Administration suffered its own setbacks due to noncompliance with the APA. This Comment analyzes the APA’s requirement for a reasoned explanation and draws parallels between the Trump and Bush Administration’s failures. The Comment also provides strategies administrations can use under the APA for resilient environmental rulemaking and effectively reversing the rules of their predecessors, as well as strategies for litigants seeking to challenge an administration’s environmental policy reversal.

Environmental Law Review

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