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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. 50 No. 4

ARTICLES

Fish and Wildlife Management on Federal Lands: The Authorities and Responsibilities of State Fish and Wildlife Agencies

Lane Kisonak

This Article rebuts certain legal analyses and factual assertions offered by Martin Nie et al., Fish and Wildlife Management on Federal Lands: Debunking State Supremacy, 47 ENV’T L. 797 (2017), regarding the extent of state authority to manage fish and wildlife within their borders. Like Dr. Nie et al., this Article reviews relevant provisions of the U.S. Constitution, state and federal case law, and federal statutes enacted for the management of federal lands and conservation of wildlife. In contrast with Nie et al., however, this Article shows how this complex legal framework reserves state fish and wildlife agencies primary wildlife management authority.

This Article also discusses the relevance of the North American Model of Wildlife Conservation, a conceptual framework embracing normative and descriptive elements, to wildlife professionals in state and federal agencies. Finally, the Article cites several examples to show how state-federal collaboration in service of wildlife and habitat conservation enhances these essential activities and shows that such cooperation is mutual and based on issues of common interest to state and federal agencies and the natural resources under their regulation.

Response to Kisonak’s “Fish and Wildlife Management on Federal Lands: The Authorities and Responsibilities of State Fish and Wildlife Agencies”

Martin Nie, Kenneth Pitt, Christopher Barns, Jonathan Haber, Julie Joly, & Sandra Zellmer

This Article responds to the central arguments and themes presented in Kisonak’s “Fish and Wildlife Management on Federal Lands: The Authorities and Responsibilities of State Fish and Wildlife Agencies.” None of the core findings and assertions made in our 2017 Article are seriously challenged by Kisonak, and neither is the debate over wildlife federalism advanced in any substantive way. Kisonak’s selective application of the public trust doctrine, emphasis on the North American Model of Wildlife Conservation, and misreading of key public land statutes and case law sows unnecessary confusion. The fact remains federal public land agencies have obligations, not just the discretion, to manage and conserve fish and wildlife on federal lands, and such a responsibility goes beyond providing habitat. The legal framework established by the U.S. Constitution and federal public land law provides states an important role to play in wildlife management and the most productive path forward is for them to work within this system as co-trustees of wildlife. On a positive note, we concur with Kisonak about the crisis facing the nation’s biological diversity and the need to act urgently. But an important part of the answer to this global and national crisis is found in the rule of law and by state and federal public land agencies embracing their obligations to conserve wildlife.

Private (Utility) Regulators

Heather Payne

The concept of the regulatory compact has long underpinned regulation of electric utilities: In exchange for a government-conferred monopoly over electricity services, the utility company submits itself to substantial government oversight, which—in theory at least—ought to prevent the emergence of monopolistic prices and other anticompetitive inefficiencies. Nevertheless, as this Article reveals, existing regulatory treatment of electric utilities fails to deliver on the public benefits of the regulatory compact. The Article supports this conclusion by highlighting previously overlooked indicators of utility companies’ inefficiencies, and it attributes those inefficiencies to information asymmetries and regulatory capture.

Having demonstrated problems with the existing regulatory compact, this Article then turns to potential solutions. In so doing, the Article draws from a seemingly unlikely source: private equity. Though superficially distinct, the “business” of private equity actually shares important functional similarities with the task of public utility regulation, as private equity managers, like public utility regulators, must “oversee” the businesses without altogether taking over management of the company itself. Given these shared challenges, public utility regulators would do well to utilize tools that have yielded success within the private-equity sphere. Specifically, the Article points to two such tools—zero-based planning (“ZBP”) and complete transparency—that, it argues, will enable regulators, intervenors, and non-traditional market participants to innovate and ensure a more cost-effective energy transition.

While this would be a radical departure from current regulatory proceedings, it is necessary if the regulatory compact is to survive in a water- and carbon-constrained world. Utilities, through their actions in rate cases, are entrenching their positions, requiring both more time and money for any transition to the new energy system to occur. Adoption of these changes, fostering innovation, and allowing a natural monopoly to exist only where explicitly necessary to meet grid and customer needs may be enough to ensure the regulatory compact works in the public interest going forward.

Blockchain Technology for Environmental Compliance: Towards a “Choral” Approach

Miriam Allena

Blockchain technology is increasingly attracting the attention of governments and public institutions around the world. As a distributed ledger that is tamper resistant and available as a multiplicity of copies constantly updated in real time, it has the potential to profoundly innovate the way in which public registers are kept, enabling improved data management and faster data sharing. Above all, that technology heralds a potential withdrawal from the scene of the State and public authorities, by making it possible to certify the completion of particular activities or compliance with certain formal requirements without involving a centralized administrator or an independent third party.

This Article examines the impact that blockchain technology could have on monitoring compliance with environmental regulations, rendering the process much more efficient thanks to its greater involvement of various non-public actors, including regulated entities and the general public. Specifically, blockchain allows for “dispersed” checks to ensure that environmental data have been submitted on time and are complete. This is, in turn, a prerequisite for subsequent checks, including substantive ones, into their accuracy and more effective enforcement of environmental law. At the same time, the technology lays the groundwork for the active involvement by regulated entities and the general public in creating public databases, giving rise to a system which this Article will refer to as “notarized transparency” within which environmental information is already reliable when it is created and can be more easily shared. This Article argues that the blockchain has the potential to reconfigure environmental protection according to a multi-polar logic, preventing (or significantly reducing) instances of corruption, maladministration and regulatory capture. In this regard, it paves the way for a form of “choral participation” in the protection of the environment capable of generating higher levels of environmental compliance and transcending the juxtaposition between command-and-control and market-based tools. Under the entirely innovative approach thereby brought about, dynamic forces within society become directly involved to perform functions that have previously fallen within the purview of public agencies and in reconfiguring certain traditional market mechanisms in innovative and potentially more effective terms.

Regulating Best-case Scenarios

Arden Rowell

Over the last decade, an increasingly robust interdisciplinary literature has developed to guide policymakers in managing worst-case scenarios—catastrophes, natural hazards, disasters, and ecological collapse. As of yet, however, there is no reciprocal literature for the opposite of such catastrophic risk: for regulating and managing phenomena that expose society to the possibility of “wonders” or “miracles”: extreme-upside events, such as might result from geoengineering, an effective COVID vaccine, successfully colonizing other planets, eradicating mosquito-borne illnesses, curing cancer, or implementing other socially or environmentally transformational new technologies. A careful comparison of the policy implications of extreme-upside outcomes with extreme-downside outcomes suggests at least a partial explanation for the asymmetric attention to extreme-downside events: psychological phenomena like loss aversion lead to greater attention to, and care for, what are perceived as potential extreme losses than for concomitant extreme gains. Unfortunately, while understandable, this asymmetric focus on perceived losses may also generate unnecessary and even counterproductive despair, while simultaneously obscuring extraordinary opportunities for improving social welfare and environmental quality, and for using law and policy to achieve wonderful outcomes. 

Reimagining the Climate Migration Paradigm: Bridging Conceptual Barriers to Climate Migration Responses

Eliza Pan

Relatively little scholarly literature has examined the ways in which conflicting conceptual frameworks have contributed to a general failure to address the increasingly ineluctable, increasingly complex challenges associated with climate change-induced migration. This Article addresses this gap by critiquing two prevailing paradigms of climate migration and by laying the groundwork for a hybrid approach. I begin by chronicling the emergence and dimensions of the climate migration quandary currently confronting the international community. I proceed to analyze the underlying premises and fundamental flaws of humanitarianism and prudentialism as frameworks for conceptualizing climate migration. Under humanitarian theories, which draw on Kantian cosmopolitanism and Rawlsian distributive justice, climate migrants are actors with fundamental rights and constrained choices; however, in practice, they are often treated as objects of injustice and support. Meanwhile, prudential theories integrate principles of political realism, economics, and securitization that privilege national interests with limited rational bases and at-times alarmist undercurrents. This Article explores the prospects for a hybrid framework that draws on the merits of humanitarianism and prudentialism yet incorporate new principles in formulating, implementing, and enforcing climate migration responses.

Oregon’s Amphibious Public Trust Doctrine: The Oswego Lake Decision

Michael C. Blumm & Ryan J. Roberts

In late 2019, the Oregon Supreme Court decided the Oswego Lake case, concerning public access rights to the State’s only allegedly “private” lake, located in suburban Portland. The court’s unanimous decision was pathbreaking for it interpreted the State’s public trust doctrine, for the first time, to apply to uplands adjacent to navigable waters necessary for accessing those waters. The court also clarified that the doctrine applies to fish and wildlife, and to local governments as well as the State, and invoked private trust principles in articulating public trust duties. The plaintiffs achieved all these results over the objections of the State, which has long sought a narrow judicial interpretation of the doctrine’s public rights. However, the court did not give the public immediate rights to access Oswego Lake, limiting upland access rights to waterbodies that meet the federal test for title: they must have been suitable for commercial trade or transport at statehood in 1859. Although this test may be a boon to historians versed in the settlement conditions of the mid-nineteenth century, it lacks any perceptible policy justification a century and a half post-statehood. The court made no attempt to explain why it restricted public access from public lands to public waters to such an arcane and archaic test.

This Article discusses the Oswego Lake decision, explaining the history of the lake and the persistent efforts of the Lake Oswego Corporation to monopolize access to it. These efforts have proved to be surprisingly successful, even though for over 100 years Oregon State law has recognized public rights to use all waterbodies capable of supporting recreational watercraft, which far outnumber the few waterways that passed the federal test in 1859. The court’s decision means monopoly use of the lake will continue until the courts determine evidence from the lake’s history satisfies the federal test, likely a long and expensive process. This Article examines how the Oswego Lake case reflected the political dynamics of local government captured by wealthy landowners as well as the State’s antipathy for carrying out public trust duties. Appendix A responds to a recent comment by Dean Huffman. Appendix B sets forth an initiative proposed by an Oregon bar section that would establish a “legal guardian for future generations” to protect public trust rights the State apparently cannot.

CHAPTER 18 - DAM REMOVAL

Undamming the Pacific Northwest: An Update

Michael C. Blumm

This paper, a chapter in a book on Pacific Salmon law, is a follow-up to a nearly 10-year old article on dam removal in the Pacific Northwest:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2101448

It includes recent developments such as the promised removal of four federally licensed dams on the Klamath River and the proposed removal of four federal dams on the Lower Snake River.

CLEAR THE AIR

Adding Confusion to the Muddy Waters of the Oswego Lake Decision: A Response to Dean Huffman

Michael C. Blumm & Ryan J. Roberts

Dean Jim Huffman’s recent article in Environmental Law on the Oswego Lake decision claims that the Oregon Supreme Court’s decision is a “confused treatise on the public trust doctrine,” objecting to the court’s decision on a number of grounds, including its recognition of public access rights, its creation of a so-called “public use” doctrine, its use of the law of private trusts, and its recognition of the state’s claim of ownership of water within its jurisdiction. Moreover, somewhat astonishingly, Huffman claims that the rights of the people cannot be violated by the representatives of the people, seemingly ignoring over a century of case law. Although we agree with a few of Huffman’s criticisms, he overlooks some important public trust interpretations of the Oswego Lake court, such as its recognition of the trustee status of municipalities, and confuses other issues, like the state’s distinction between what it calls “navigable-in-fact” waters (those which support recreational watercraft today) and those those waterways that are navigable under the federal title test (commercially navigable around the time of statehood). We explain our criticisms in this essay.