Environmental Law Review

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Welcome to 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 in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

Additional content is available on our online journal, Environmental Amicus, which features online ideas from Environmental Law contributors and more. 

 

Current Issue: Vol. 52 No. 4

 

 

LAND ACKNOWLEDGEMENT

 

ARTICLES

Constitutionalizing the Public Trust Doctrine in Chile

Michael C. Blumm & Matthew Hebert

The Chilean public, which has expressed widespread dissatisfaction with Chile’s environmental policies, recently rejected a new constitution that would have entrenched the public trust doctrine in the country’s fundamental charter. The rejection had little to do with the public trust provisions in the proposed constitution, and Chile’s president has promised a revised constitution will be drafted for a second referendum soon. This Article maintains that the revision should continue to include the public trust provisions.

The ancient public trust doctrine, which emanated from Roman law and was reflected in the 13th century Spanish treatise Las Siete Partidas, offers the promise of making publicly enforceable commitments to environmental protection that under current Chilean law have been discretionary, and therefore unfulfilled. An interdisciplinary white paper sponsored by the Chile California Conservation Council in 2021 drew on language from the Pennsylvania Constitution in recommending that the convention drafting the constitution include the public trust doctrine. The convention did in fact include public trust principles in the proposed constitution that was rejected. This Article explains what the public trust doctrine would mean to Chileans if future iterations of the constitution retain public trust doctrine language, arguing that such revisions will better position Chile to meet the environmental challenges ahead while accommodating the country’s commitment to private property.

 

Restoring the Emergency Room: How to Fix Section 7(a)(2) of the Endangered Species Act

Daniel J. Rohlf & Colin Reynolds

Biodiversity conservation policy in the United States, particularly as developed through the Endangered Species Act, has come to focus primarily on merely avoiding calamity. Section 7(a)(2) of the ESA prohibits federal agencies from carrying out, funding, or permitting actions that jeopardize threatened and endangered (listed) species, or destroy or adversely modify, their critical habitat. These prohibitions are among the ESA’s most important protections, which Congress envisioned as creating an “emergency room” for vanishing species. However, improperly narrow agency interpretations undercut these protections’ effectiveness, allowing continued adverse effects to both listed species and critical habitat so long as each incremental impact does not imperil the entire species or render ineffective an entire critical habitat reserve—a threshold almost never crossed.

There is a better way. Federal agencies charged with administering section 7(a)(2) should instead focus on maintaining minimum survival thresholds and species’ timely progress toward recovery in interpreting what it means to “jeopardize” listed species. These agencies should also embrace a “no net loss” approach to conservation of the physical and biological features of critical habitat that are essential to species’ recovery. While far-reaching, these reforms require no amendments to the ESA itself, and only minor changes to regulations interpreting the law. Additionally, this approach to biodiversity conservation is consistent with both the vision of the Congress that passed the ESA and the language of the ESA itself and would significantly advance U.S. protections for its most imperiled species and the ecosystems upon which they depend. At the same time, these reforms would improve standards for management of protected areas in the U.S. and thus help fulfill President Biden’s commitment to advancing biodiversity conservation and slowing climate change through protecting at least 30% of land and marine areas under U.S. jurisdiction.

 

ESSAY

Nature’s Trust: Protecting an Ecological Endowment for Posterity

Mary Christina Wood

 

BOOK REVIEW

Our Common Ground: A History of America’s Public Lands by John D. Leshy

Charles Wilkinson

 

COMMENT

A Critique of Federal Grant Programs as a Source of Funding for Green Space in Environmental Justice Communities

Alexandria McCaskill

Public green spaces, such as parks, sporting fields, streams and riverbanks, trails, and community gardens, are extremely beneficial to the health and wellbeing of a community. Unfortunately, environmental justice (EJ) communities, including low-income communities of color, are largely excluded from these benefits compared to middle and upper income communities. The federal government has acknowledged this disparity by providing competitive grants to fund green spaces in underserved neighborhoods. However, the current grant-based system does not address the systemic disenfranchisement that helps define EJ communities, and is therefore unlikely to properly address the absence of green space. This Comment explains the specific benefits of green space and the level of disparity between EJ communities and middle and upper income communities. It then outlines the current federal grant-based system, which primarily relies on state applications and matching funds. Next, it discusses why the current grant-based system is a poor solution to the lack of green space in EJ communities. Finally, this Comment provides alternative methods of properly funding equitable green spaces. While the current grant-based system is ill-equipped to solve the disparity in access to green spaces, the Biden administration is showing an interest and emphasis on environmental justice, which will hopefully allow EJ communities to come closer to matching the green space available in middle to upper income communities.