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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. 50 No. 1

ARTICLES

Atomizing the Clean Water Act: Ignoring the Whole Statute and Asking the Wrong Questions

Robert W. Adler & Brian House

When attempting to resolve difficult issues of statutory construction involving complex statutes, courts sometimes focus on individual words and phrases without evaluating how they fit within the text and structure of the whole statute. We call this “atomization” of the statutory text. Judges have fallen into this trap in construing the Clean Water Act (CWA) and other lengthy, complex federal environmental statutes. That tendency contributes to ongoing confusion about the scope and coverage of the CWA. During the 2019–2020 Term, the U.S. Supreme Court will resolve a circuit split in the most recent line of cases exhibiting this tendency. Courts have struggled to ascertain the scope of CWA permitting jurisdiction when pollutants reach water bodies through an intermediary conduit such as groundwater. Some courts have “atomized” that analysis, leading to further analytical confusion. Evaluating this issue in light of the functions CWA permits serve in the whole statutory scheme leads to more logical results. The “conduit” cases thus serve as a good example of the perils of atomization, and how it can be avoided through a whole text analysis. That method, in turn, can allow courts in some cases to avoid debates about the relevance of legislative history and other non-textual indicia of congressional purpose in statutory construction.

Climate Triage: A Resources Trust to Address Inequality in a Climate-Changed World

Shi-Ling Hsu

Global climate change poses an existential threat to human civilization because it disrupts the supply of natural resources that provide basic life staples—water, food, and energy. If humankind is unable to adapt to a less abundant and less predictable supply of resources, then the effective scarcity will, as it often has in human history, lead to conflict. There is a chance, if greenhouse gas emissions can be sufficiently reduced to avoid the most serious consequences of climate change, that efficiency and sharing measures can make up for climate-induced shortfalls. Natural resources are not generally managed or consumed very efficiently, so large savings in production and consumption are possible. And humankind has demonstrated a surprising capacity to organize and cooperate to efficiently share resources, even in times of scarcity.

However, a formidable obstacle stands in the way of such arrangements: economic inequality. Organic cooperation requires, if not homogeneity, a certain capacity to recognize and coalesce around a group interest. Sharp economic divisions are an anathema to such group coherence. This Article proposes a form of climate triage, a prospective equalizing measure to address natural resource shortages before economic inequality can sabotage cooperation: the creation of a resources trust to act as a supplier of last resort in case of climate-induced scarcity. A resources trust could be chartered at the federal, state, or regional level, and would acquire rights, options, and other assets required to step in and supply basic life staples to ensure reasonable access for the vast majority of individuals in a chartering jurisdiction. Without such an assurance, the pressure to take resources by force and to hoard them could be overwhelming. Hoarding would be the worst possible outcome, as it is grossly inefficient, unjust, and worst of all, self-reinforcing. The nature of hoarding is such that it exacerbates itself, creating ever-stronger incentives to hoard, so that once started, it becomes extremely difficult to stop. Hoarding in a climate-changed future would introduce a new, and potentially dystopic form of inequality, one with the potential for creating unrest.

San Diego Border Infrastructure Environmental Litigation: Return of the Walking Dead

Edward A. Fitzgerald

The Secretary of Homeland Security waived numerous environmental laws in 2017 that allowed the construction of new barrier fences and border wall prototypes on the U.S.–Mexico border in California. The Federal district court and Ninth Circuit upheld the Secretary’s waivers in In re Border Infrastructure Environmental Litigation. This Article argues that the federal courts’ decisions were erroneous because the waivers were ultra vires and unconstitutional. The Secretary’s waiver authority was limited to the border fencing specifically authorized in the Immigration Reform and Immigrant Responsibility Act. This fencing was completed in 2013. At this point the Secretary’s waiver authority ended, so the 2017 waivers were ultra vires. Furthermore, the Secretary’s waiver authority was unconstitutional. The unlimited scope of the waiver authority and constrained judicial review violated the non-delegation doctrine. Congress should terminate the Secretary’s waiver authority and enact legislation that balances national security and environmental protection along the border.

The Historical Evolution of the Methodology for Quantifying Federal Reserved Instream Water Rights for American Indian Tribes

Dylan R. Hedden-Nicely

From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America’s indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining a good environment for culturally important aquatic species. This Article—a companion to another in this Issue that addresses contemporary methodologies—focuses on but one part of that monumental effort: the historical development of the methods used to ensure adequate quantities of water remain in streams to maintain a healthy habitat for aquatic species.

The Contemporary Methodology for Quantifying Reserved Instream Flow Water Rights to Support Aquatic Habitat

Dylan R. Hedden-Nicely

Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people—particularly those in the region now called the Northwestern United States—placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A companion article in this same issue explores the evolution of the methodology for quantifying these water rights, which has slowly converged on the Instream Flow Incremental Methodology (IFIM) and its component part, the Physical Habitat Simulation Model (PHABSIM) methodology. The purpose of this Article is to provide an explanation of the current IFIM/PHABSIM methodology to put practitioners in the position to understand and meaningfully apply the method.

Blood in the Water: Shark Feeding, Tourism, and the Law

Catherine Macdonald & Andrew Carter

Shark tourism has become a significant driver of tourist dollars both in the United States and abroad over the past few decades, with shark provisioning (feeding), often used by shark tour companies to attract sharks for easy viewing. While shark tourism may provide economic incentives to protect vulnerable or endangered shark populations in some cases, feeding sharks to bring them into view has both ecological and safety implications, and impacts remain contested among scientists and environmentalists. This Article explores the legal implications of shark tourism, feeding activities, and the historical doctrine of ferae naturae. It also analyzes two case studies in Florida and Hawaii where tourism-related shark feeding bans engendered legal and political opposition, as well as difficulties in enforcement. As tourism activities become more popular, coastal communities in the United States and around the world have an increasing need to come to terms with the legal and governance challenges of wildlife tourism activities.

ESSAYS

Environmental Law at 50: A Cutting-Edge Journal Examining the Central Issues of Our Time

Michael C. Blumm

This Paper, a celebratory essay marking the 50th anniversary of the first issue of Environmental Law, the nation’s oldest and most comprehensive law student-edited environmental law review, discusses the background of the founding of the journal in 1970 and surveys the many symposia and leading articles it has published over the years. The output has been fairly astonishing in terms of the breadth of coverage and the innovative environmental ideas advanced. The Essay notes the numerous authors who have published in Environmental Law more than once, and an appendix catalogs some thirty years of publishing the articles of distinguished environmental visitors to Lewis & Clark Law.

The Ends and Means of Decarbonization: The Green New Deal in Context

Jonas J. Monast

Disputes about climate policy involve much more than whether or not to reduce greenhouse gas emissions. There is general agreement among proponents of climate policy that strategies should be cost effective, address distributional impacts, and incentivize investments in low-carbon technologies. Yet disagreements abound regarding additional goals of climate policy design.

Decarbonizing the economy means changing the sources of energy we use, how we transport people and products, how we produce food, and which resources we consume. Yet even among proponents of federal climate legislation there is strong disagreement regarding policy instruments. Recent proposals for a revenue-neutral carbon tax and a Green New Deal (GND) frame the opposite ends of the debate. On one end, the GND framework treats climate policy as an opportunity to steer the trajectory of the U.S. economy while also correcting social and environmental injustices. Proponents of the most expansive iterations of a GND argue that it is not possible to separate justice and economic considerations from environmental policy. At the other end of the spectrum, revenue-neutral carbon tax proposals reject the creation of new government programs and focus on controlling greenhouse gas emissions rather than the economic and social impacts of the policy.

This Essay identifies core disputes about the non-emission goals in state and federal climate policy debates that create barriers to legislative consensus. The Essay begins with a comparison of recent proposals to mitigate climate change, including pricing carbon via a carbon market or carbon tax, regulatory measures such as the Obama-era Clean Power Plan, state-based policies, and the GND. It then identifies three conflicts, the resolution of which will shape future climate policy developments: the role of decarbonization as technology policy, social justice policy, and fiscal policy. Deploying low carbon technologies is a critical piece of the climate mitigation puzzle, but stakeholders disagree whether decarbonization strategies should prioritize renewable energy or include technologies such as nuclear or carbon capture. Each policy discussed in this Essay considers some range of social impacts (at minimum, cost increases), but differ significantly about which social impacts to address and the how to address them. The policies also adopt different approaches to the link between fiscal policy and climate policy, with some generating revenue to fund new government programs, some returning revenue to U.S. citizens, and some not addressing the issue. The Essay concludes with comments about the early impacts of the GND on the domestic policy debate and opportunities to resolve it.

Environmental Law Review

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