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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. 48 No. 4

ARTICLES

Linking Heterogeneous Climate Policies (Consistent with the Paris Agreement)

Michael A. Mehling, Gilbert E. Metcalf & Robert N. Stavins

The Paris Agreement to the United Nations Framework Convention on Climate Change has achieved one of two key necessary conditions for ultimate success—a broad base of participation among the countries of the world. But another key necessary condition has yet to be achieved—adequate collective ambition of the individual nationally determined contributions. How can the climate negotiators provide a structure that will include incentives to increase ambition over time? An important part of the answer can be international linkage of regional, national, and sub-national policies, that is, formal recognition of emission reductions undertaken in another jurisdiction for the purpose of meeting a Party’s own mitigation objectives. A central challenge is how to facilitate such linkage in the context of the very great heterogeneity that characterizes climate policies along five dimensions: type of policy instrument, level of government jurisdiction, status of that jurisdiction under the Paris Agreement, nature of the policy instrument’s target, and the nature along several dimensions of each Party’s Nationally Determined Contribution. We consider such heterogeneity among policies, and identify which linkages of various combinations of characteristics are feasible; of these, which are most promising; and what accounting mechanisms would make the operation of respective linkages consistent with the Paris Agreement. 

Symbolic Legitimacy and Chinese Environmental Reform

Alex L. Wang

At the heart of debates over Chinese rule of law is the question of state legitimacy. Critics argue that legitimacy requires liberal democratic rule of law. Chinese leaders have long relied on performance legitimacy—economic development and maintenance of social stability—as the core basis of their rule. Western scholarship on modern Chinese law and politics has, to a significant degree, critiqued the ability of China’s current institutions to perform as claimed.

But apart from any actual results that Chinese governance may generate, the entire project of governance reform can be structured in a way that influences public impressions of state legitimacy. The process of reform is not only about attaining performance goals, but is itself a kind of performance. This act of “performing performance” also signals competence, commitment to the people, tradition, nationalist strength, and a host of other positive values to citizens and other audiences. This focus on the reform process itself as a means of “symbolic legitimation” is an aspect of China’s “authoritarian resilience” that existing scholarship has virtually ignored.

This Article develops the concept of symbolic legitimation and identifies its key tools, structures, and approaches. Central to the phenomenon is uncertainty created by complexity, active information control, and populist politics. When outputs are difficult to ascertain, reform inputs come to stand for outcomes. Even more, the reform process itself becomes an output that can signal state legitimacy, apart from any results the process might produce. The Article presents case studies on eco-civilization reform, air pollution, soil pollution, ozone-depleting substances, and climate change to illustrate the concept.

To be clear, symbolic use of law and governance is present in any country, regardless of region or regime type. This Article’s contribution is to shine a light on the ways in which symbolic reform works in China’s authoritarian setting. Put another way, this is about the particular stories that the Chinese state tells about itself. At the same time, the findings here will be of interest to those concerned about the growing impact of information manipulation and populism on governance in the United States and other countries.

No Fracking Way: An Empirical Investigation of Local Shale Development Bans in New York

Caroline Cecot

Across the United States, local governments and states have adopted measures to restrict shale development that uses high-volume hydraulic fracturing and horizontal drilling (collectively, fracking) within their borders, hindering a national energy policy that relies on continued access to natural gas trapped within shale formations. This Article takes an empirical look at what might motivate these local anti-fracking measures by analyzing the behavior of New York towns from 2010 through the end of 2013. Before New York’s highest court recognized a town’s authority to ban fracking and before the state officially banned fracking, more than a hundred shale-rich New York towns adopted bans or moratoria on fracking. The results show that towns most likely to adopt bans were those with residents that were more vulnerable to potential water contamination and those with little history of prior oil-and-gas development. Moratoria adoption, in contrast, was largely associated with residents’ environmental preferences. The results suggest that, at least when deciding to ban fracking, towns weigh the local costs and benefits of the practice, relying on their knowledge of local conditions and vulnerabilities. The results, then, lay the groundwork for state and federal efforts to reduce local opposition by facilitating responsible shale development, with provisions for taking into account local knowledge and incentives for optimal activity levels, acceptable risk-taking, and comprehensive remediation. 

Veto-ing the Veto?: Limited Options Remain under Clean Water Act Section 404(c) for EPA to Allow Development of the Pebble Deposit

Kevin O. Leske

On July 21, 2014, the United States Environmental Protection Agency (EPA) took its first step under Clean Water Act (CWA) § 404(c) to protect the pristine Bristol Bay watershed in southwestern Alaska. It proposed to restrict the use of certain waters in the watershed for the disposal of dredged or fill material associated with mining a large ore deposit.

CWA § 404(c) gives EPA the authority to prohibit (in other words, “veto”) an area as “a disposal site” under the act. The section specifies that this decision be made whenever EPA determines “that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” Here, EPA recognized that the Bristol Bay watershed had “unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America” and thus protection was necessary.

However, on July 19, 2017, under the new Trump Administration, EPA signaled its intent not to move forward with the protection of Bristol Bay. Now an application for the development of the “Pebble Deposit” is pending. Naturally, a legal showdown concerning the proposed Pebble Mine is inevitable. Although in a surprising move in 2018, EPA temporarily suspended the proceeding to withdraw the 2014 CWA § 404(c) Proposed Determination, the fate of the Bristol Bay watershed remains in question because EPA further indicated that it “intends at a future time to solicit public comment on what further steps, if any, the Agency should take under § 404(c) . . . in light of the permit application [for the Pebble Mine] that has now been submitted to the U.S. Army Corps of Engineers.”

What steps can (and, arguably, must) EPA take in a future action involving CWA § 404(c) and the Pebble Project? And what if EPA again attempts to withdraw its 2014 Proposed Determination? This Article examines these key questions. It first explains that a court is unlikely to permit EPA to withdraw the 2014 Proposed Determination on the same basis that EPA proposed to withdraw it in 2017. Moreover, in light of the 2014 Proposed Determination, EPA’s options are now limited with respect to allowing development of the Pebble Deposit. The article concludes that principles of administrative, constitutional, and environmental law demonstrate that it will be difficult for EPA to justify not finalizing its 2014 proposal to prohibit the disposal of mining waste into this sensitive area. 

Sowing the Seeds of Controversy: What the Dicamba Debacle Reveals About the Modern Pesticide Registration Process and Why the EPA Must Act

John Frank Knox

The American farmer has long been the worldwide leader in agricultural management practices leading to increased yields. Innovation in agriculture, like any other industry, is a vital component to sustaining progress and viability in future seasons. The United States relies upon formulations of pesticides and herbicides as a method of controlling and reducing threats to priority crops. The usage of these substances led to the natural development of a resistance trait in some weeds. Advances in chemical technology now seek to leverage genetic engineering of seeds to counter this resistance. This process of agricultural innovation and development has taken place for decades with little, if any, interest from the general public. That changed dramatically in 2015 when new blends of an old herbicide went into use before it was fully tested and vetted for safety, igniting a firestorm that would soon engulf farmers, chemical manufacturers, state legislators, and the United States Environmental Protection Agency (EPA). This Article will examine the Dicamba controversy focusing on the registration process that has largely been the source of conflict. This Article asserts that Monsanto’s refusal to authorize third-party volatility testing during the Xtendimax registration process and the EPA’s silence following efforts at highlighting the potential adverse environmental effects demonstrate a need to amend the regulatory rules regarding herbicide registration. Specifically, 40 C.F.R. §  158.75 should require a party seeking to register, or reregister, a pesticide to submit to additional data testing when the EPA or a state environmental agency has determined a threat of unreasonable adverse effect to the environment actually exists.

ESSAY

Resisting Deregulation: How Progressive States Can Limit the Impact of EPA’s Deregulatory Efforts

Craig N. Johnston

  

COMMENT

“From Frisbees to Flatulence”: Regulating Greenhouse Gases from Concentrated Animal Feeding Operations Under the Clean Air Act

Danielle Elefritz

The grave threat of global climate change calls for immediate political action to mitigate climate change through the reduction of greenhouse gas emissions from the largest emitting sectors, including the agricultural sector. Crop and livestock production have been largely disregarded as a source of greenhouse gas emissions in the United States and thereby present an opportunity for mitigating vast amounts of domestic greenhouse gas emissions—a small but momentous feat in the fight against climate change. This Comment calls for the regulation of greenhouse gases from Concentrated Animal Feeding Operations through the Clean Air Act’s Prevention of Significant Deterioration program as implemented by states through incorporation in their State Implementation Plans. This Comment focuses on this approach because it is promising, even given the present political climate, and because little, if any, study or consideration has been given to it. Parties interested in pursuing this avenue for regulation should target effective lobbying strategies at state legislatures and those state agencies responsible for implementing and revising their states’ State Implementation Plans.

 

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