Environmental Law Review
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. 53 No. 3
Robin Kundis Craig
Marine biodiversity is an important component of global biodiversity, which is under threat from a variety of anthropogenic stressors. Some of the most important of these include overfishing, pollution, invasive species, climate change, and ocean acidification. After summarizing the scientific evidence that global marine biodiversity is declining, this article examines the two primary legal approaches to protecting marine biodiversity: area-based management, including marine protected areas; and species-specific protections. While, in general, place-based legal protections can offer the most holistic approach to protecting marine biodiversity, especially when warming oceans are inducing species shifts, this Article argues that both the United States and the global community should increase protections for individual species at the same time. Species-based protections are especially critical for highly migratory species, like bluefin tuna.
For more than 50 years, the international community has sought to address the “notorious failure” by many flag states to exercise effectively their jurisdiction over the vessels they flag. This failure is the root cause of illegal, unreported, and unregulated (IUU) fishing, resulting in economic losses of tens of billions of dollars, unsustainable fishing, and food insecurity. Beneficial owners of vessels have evaded legal responsibility arising from efforts to control IUU fishing by concealing their identities behind impenetrable corporate structures, reflagging their vessels to other states, and changing the name of their vessels. Legal actions against crew do little to change the economics for either the vessel owner or the flag state.
To counter these moves, legal strategies should focus on holding non-complying flag states responsible for their failure to exercise effectively their jurisdiction over the vessels they flag. Through litigation, non-flag states might recover their costs of monitoring, control, and surveillance of IUU vessels, as well as costs of enforcement and prosecution. Because international tribunals have only allowed compensation for “extraordinary costs,” this Article argues that the array of expensive strategies used to combat IUU fishing—for example, observer programs, vessel monitoring, and electronic monitoring—are extraordinary costs taken to combat the extraordinary problem of IUU fishing. Countermeasures—legally authorized action taken against non-complying flag states for non- compliance that would otherwise be illegal—may be a more effective response. A non-flag state could, for example, ban imports of key export goods of the non-complying flag states or engage in high seas boarding and inspection of vessels flagged to such states. Under either approach, states would create a financial disincentive that outweighs the financial incentive of flagging IUU fishing vessels. Non-complying flag states may opt to begin exercising their jurisdiction effectively over their vessels or deregister those vessels and close their registry. States could also pay non-complying flag states to close their vessel registries. Vessels that have sheltered under flags of non-compliance eventually would find a flag state that does exercise its jurisdiction effectively over the vessel to avoid being stateless. Only then will our fisheries resources be adequately protected.
NOTES & COMMENTS
A number of recent United States Supreme Court decisions have repeatedly weakened the litigation power of general class action claims brought under Rule 23(c). While these decisions have made bringing complex environmental tort claims more difficult, one key alternative which has started to fill this need is the issue class action under Rule 23(c)(4). This Article addresses the recent developments in issue class litigation, as well as looking at how modern suits have utilized the niche rule to ensure the continued success of complex environmental litigation.
Temporary Membership? The Flaws of the H-2A Agricultural Temporary Guest Worker Program in the Crimmigration Context
Human migration is not a novel concept; people have always been on the move. Reasons for migration vary: some move for economic opportunities, some to study, others to be with family. Climate disasters are forcing masses of people to migrate to more hospitable places. Arguably, the biggest motivation for global migration is to seek employment, particularly in agricultural labor. In response to the rise of global migration, many countries, including the United States, developed various employment programs to keep track of who entered the country and for how long. Often, these programs required workers to apply for a visa, which provided legal status. One such program is the H-2A Temporary Agricultural Guest Worker Program, which allows U.S. employers to petition for noncitizen workers to enter the country and perform seasonal agricultural labor. On paper the program appears to clearly outline responsibilities and expectations of both employers and employees, but the program’s flaws leave H-2A workers particularly susceptible to employer abuses.
Both Congress and the Department of Labor attempted to update the H 2A program to address the constant, fluctuating demand for agricultural labor. In March 2021, lawmakers passed the Farm Workforce Modernization Act, which made various procedural changes to the H-2A program. More recently, on October 12, 2022, the Department of Labor added a final rule to the Federal Register that further amended the H-2A program. The rule attempted to strengthen worker protections and program integrity, modernize the application process, and expand employer access to the program.
Despite these efforts to strengthen the H-2A program and invest in worker protections, these limited changes are unlikely to remedy the problems that persist with temporary guest worker programs.
Due to a century of disruption in natural fire in ecosystems paired with the rapid growth of the Wildland Urban Interface (WUI), wildland fire has become one of the most pressing issues in forest management because it places millions of people in close proximity to dangerous wildfires. Throughout the American West, forest managers are now facing declining forest health, high fuel loads, and inefficient systems for confronting the wildfire crisis, all while making decisions that dramatically affect the communities that live in the WUI. As policymakers wrestle with containing the dangers of intensifying wildfires, it becomes critically important that solutions consider the needs and desired outcomes of environmental justice communities who bear the consequences of land management decisions.
Forest management decisions concerning federal public lands have long neglected and disregarded the rural communities and Indigenous peoples most directly impacted by wildland fires. With each passing fire season wreaking further devastation on vulnerable communities, it becomes increasingly necessary to develop policy solutions that prioritize the groups with the most at stake. By promoting a just transition for forest-dependent communities, we can seek to rectify previous mismanagement and injustices while working towards a healthier environment.
This Chapter begins by evaluating the history of federal forest management and how policy regimes have created unsustainable conditions for remedying the wildfire crisis, then discusses possible solutions for uplifting rural and tribal communities in the WUI to develop better fire policy and restore prosperity to neglected groups. With particular focus on what the Biden administration has done in its first term, the Chapter analyzes what steps the administration has taken towards incorporating environmental justice into fire policy and what other policy initiatives are worth exploring further.