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Environmental Law Review

 

environmental law review logo, law journal

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.

 

 

Current Issue: Vol. 51 No. 3

 

LAND ACKNOWLEDGEMENT

 

SYMPOSIUM LETTER

 

ARTICLES

 

Climate Risk in the Electricity Sector: Legal Obligations to Advance Climate Resilience Planning By Electric Utilities

Romany M. Webb, Michael Panfil, & Sarah Ladin

Electricity generation, transmission and distribution, and load are all impacted by weather patterns. Electric system assets have been designed for historic weather conditions with the goal of ensuring reliability and quick recovery following extreme events. However, climate change is causing major shifts in historic weather patterns
and more frequent and severe extremes, which are creating new risk profiles for the electric system. Proactive climate resilience planning by electric utilities to identify, respond, and rationally allocate these climate risks is thus increasingly salient. This Article argues that it is also legally required.

Recently published industry studies demonstrate that accurate, specific, and actionable climate resilience planning is possible. Nevertheless, and despite the significant benefits of climate resilience planning, relatively few electric utilities have engaged in the process. This Article explores two legal doctrines, public utility law and tort law, which we argue obligate electric utilities to plan for the impacts of climate change on their assets and operations. Public utility law requires electric utilities to meet, among other things, prudent investment and reliability standards. Tort law establishes a duty of care that obligates electric utilities to, among other things, avoid foreseeable harm when performing acts that could injure others. We argue that, as climate science becomes more precise and predictive, these legal standards take on new meaning and require electric utilities to engage in climate resilience planning.

 

Will Regulators Catch the Drift? NFCC v. EPA and Breathing New Life Into Pesticide Regulation

George Kimbrell, Sylvia Wu, & Audrey Leonard

In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model is heavy reliance on synthetic pesticides and fertilizers, chemical inputs necessary for large monoculture production. In the most recent twenty-first-century version of this ever-entrenching paradigm, pesticide companies sell a seed/pesticide cropping system, comprised of crops genetically engineered (GE) to resist multiple pesticides, allowing “over the top” spraying at new times of the year and in new ways. These crop systems have significantly increased the pesticide load on our foods and into our environment, creating huge externalized environmental and health costs.

Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals.

A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F.3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: despite scientists and farmers raising significant concerns, EPA conditionally registered new, over-the-top dicamba pesticide spraying as the “next generation” of pesticide-resistant cropping systems. That first-ever such approval led to 20 million more pounds of dicamba sprayed annually, a twenty-three-fold increase, across approximately 50 million acres at new times of the year and in novel ways.

EPA’s approval created a debacle that agronomists say is unprecedented in the history of U.S. agriculture: the spraying of massive amounts of dicamba resulted in millions of acres of crops, trees, and wild plants damaged by dicamba spray droplets drifting off-field during application; dicamba vapor clouds damaged vast fields from fencerow to fencerow; dicamba-laced water ran off sprayed fields; and even rainfall was contaminated in areas of intensive use. Millions of acres of off-field dicamba drift and runoff resulted in widespread destruction of crops, economic losses, social upheaval to rural communities, and harm to endangered species and other
wildlife. 

 

Climate Change and Animal Agriculture: Federal Actions Protect the Biggest Contributors from the Disasters They Cause

Shanna McCormack

Animal agriculture is a major contributor of greenhouse gases involved in climate change. Current changes in the climate are driving a shift in weather patterns that will cause an increase in frequency and intensity of extreme weather events including heat waves, drought, heavy downpours, floods, hurricanes, wildfires, and winter storms. Consequences of the increased extreme weather events are far-reaching and are expected to substantially impact economic growth, human quality of life, and farmed animals. This Article discusses the connection between animal agriculture emissions and climate change. It examines climate change in several regions of the United States: the Southeast, the Midwest, and the West because while each region will experience drastic changes, the changes will differ greatly. This Article also talks about the federal protections and incentives in place for animal agriculture operations to operate regardless of their environmental impact and how the federal protections further insulate animal agriculture operations from the environmental damage they cause. It then explores options for how these protections can be altered to lessen the environmental impact of animal agriculture operations.

 

COMMENTS

 

Oregon’s Concentrated Animal Feeding Operations: Air Quality as the Epicenter of Environmental Justice Issues & Regulatory Solutions

Josie Moberg

The expanding presence of the Confined Animal Feeding Operation (CAFO) in Oregon implicates several environmental justice issues—issues where the environmental harms of an industry disproportionately impact low-income Black and Indigenous communities and communities of color generally—including neighborhood pollution, workers’ rights, water wars, global hunger, and climate crisis. This Comment argues that air emissions are the epicenter of these environmental justice issues, specifically in the form of local neighborhood pollution, farmworker workplace contamination, and greenhouse gas emissions that contribute to the global climate crisis. Accordingly, this Comment argues that air emissions are also the epicenter of regulatory solutions to remedy these environmental injustices. It argues that the most relevant pathway toward heightened checks on CAFO operations lies in air emissions regulation, under the federal Clean Air Act and Oregon state legislation. With the legislative changes advocated for in this Comment, new and existing CAFO operations would have to
significantly adjust their practices to remain legally operative. However, CAFOs could also choose to adjust their practices if compliance with regulation proves to be too expensive, creating the need to de-classify themselves from categories subject to those regulations in the first place (such as major sources of pollution or even CAFOs at all). Ultimately, whichever method CAFO operators choose would likely have its own positive corresponding effects for environmental justice communities.

 

NINTH CIRCUIT REVIEW CASE SUMMARIES

 

CHAPTERS

 

Fire Management in a Climate Changed World: Opportunities for the Biden Administration Under the National Environmental Policy Act

Dara Illowsky

With dramatic photographs of massive fires blazing through human communities across the western United States, perennially gracing the news each summer, wildfire in the face of climate change has become a hot topic in popular culture in recent years. The forest management community, in contrast, has long debated how best to safely and effectively manage fires in a way that protects human lives and property while also preserving ecological stability in western United States forests. In the absence of a fully settled solution, the Ninth Circuit’s recent decision in Bark v. United States Forest Service (USFS) demonstrated the importance of the National Environmental Policy Act (NEPA) in ensuring that the USFS at least fully and transparently considers all relevant factors when assessing the relationships between a forest management decision, wildfire, and climate change. The Trump administration’s rescission of the 1978 NEPA regulations and the Obama administration’s 2016 Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (2016 GHG Guidance), however, severely undercut federal agencies’ obligations to consider climate change and incorporate meaningful opportunities for public participation in its environmental analyses of major federal actions. This Chapter proposes that, to provide support for USFS to better manage forests and fires in a way that builds adaptive resilience and thus better protects both human and ecological communities in the long term, the Biden administration should repromulgate the 1978 NEPA regulations and the 2016 GHG Guidance. The Chapter highlights components of these policies that are particularly useful for managing fire in a climate-changed world, and suggests possible improvements to better equip USFS to make intelligent and informed decisions around forests, fires, and climate change.

 

Wars, Walls, and Wrecked Ecosystems: The Case for Prioritizing Environmental Conservation in a National Security-Centric Legal System

Skye M. Walker

Maintaining a strong military. Furthering national security by securing the skies, seas, and borders. Promoting peace and order by using tear gas to diffuse chaotic and potentially dangerous situations. To the U.S. government, these are laudable objectives—objectives that often outweigh other policy goals such as environmental conservation. As a result, U.S. laws are ridden with exemptions and waivers that allow the Department of Defense and Department of Homeland Security to bend, if not entirely circumvent, environmental requirements. Unsurprisingly, the U.S. Supreme Court, the Ninth Circuit Court of Appeals, and U.S. District Courts within the Ninth Circuit have commonly rejected claims challenging the legality of military operations under environmental laws such as the National Environmental Policy Act, showing exceptional deference to the Armed Forces. This response from Congress and federal courts enabled the destruction of ecosystems and the acceleration of climate change, with few legal repercussions for the parties responsible. While pushing back against exemptions and military super-deference are important objectives, one additional opportunity may inspire change more quickly and produce effective results, namely, reforming the Department of Defense’s and Department of Homeland Security’s budgets to include greater appropriations for environmental work. The time is now to seek justice for the environment, and it need not come at the cost of jeopardizing national security or military preparedness.