Volume 52, Issue 1






How to Choose Between Environmentally Positive Actions When One of Those Actions Can Harm the Other: A Case Study of the Conflict Between the California Condor and Wind Turbines

Hope Babcock

This Article looks at the potential conflict between restoring endangered condors to the wild and installing wind turbines, an increasingly important source of renewable energy. The ideal terrain for each is the same as both are dependent on wind and require some degree of isolation from people. Yet, they cannot coexist in the same space without harm occurring to any condor that transects the sweep of a turbine’s blades. This Article explores various approaches to resolving conflicts involving incommensurable choices. The author rejects approaches that rest on commonsense norms, like first come, first served, moral principles, or on political realities because they are ambiguous and contestable. Nor does the author find it helpful to compare the
durability of a choice, the breadth of its public support, or the severity of the consequences of a wrong decision, as the choices become indistinguishable.

This Article concludes that the ease of replacing a use should be the dominant factor. Here, the irreplaceability of the condor means that it should prevail in any conflict with wind turbines as there are other equally viable sources of renewable energy. However, steps must be taken to lessen the negative impact of protecting condors on the growth of the wind turbine industry to be sure it continues to grow. One way to do that is to implement positive initiatives to offset harms to the losing side .


The Nondelegation Cliffhanger: Implications of the Potential Doctrinal Shift on Environmental Law and the Role of Environmental Advocacy

Frederick A. McDonald

Change is likely on the horizon for the current administrative state. In 2019, the Supreme Court decided Gundy v. United States and rejected a nondelegation doctrine challenge. However, despite the plurality failing to find justification for reviving the nondelegation doctrine, an assertive dissent by Justice Neil Gorsuch, joined by two other Justices, has indicated a clear intention to reexamine the doctrine and shift power away from administrative agencies. With the current 6-3 majority on the Supreme Court, the nondelegation doctrine has a real chance to disrupt the administrative state. In particular, a more restrictive interpretation of the nondelegation doctrine could have a profound impact on environmental law, essentially undoing years of successful agency action under these statutes.

This Article surveys a group of environmental laws and analyzes each under two of the three tests announced in the Gundy decision. The review illustrates that various environmental laws are vulnerable to a restrictive interpretation of the nondelegation doctrine, and that revival would be harmful to the current operation of agencies tasked with implementing these statutes. Additionally, this Article proposes ways to utilize environmental advocacy tactics for when the nondelegation doctrine is resurrected, which could ultimately result in benefits in the context of environmental law.


Distributional Consequences and Regulatory Analysis

Richard L. Revesz & Samantha P. Yi

Distributional analysis has been a formal part of the regulatory state since 1993, when President Clinton directed agencies to consider the distributional consequences of significant regulations alongside the
cost-benefit analysis of these regulations. President Obama reaffirmed and somewhat expanded this commitment. And both Presidents Clinton and Obama expressed particular concerns with distributional consequences in the environmental area, underscoring their respective commitments to environmental justice. Despite the undoubtedly good intentions embodied in these pronouncements, the analysis of the distributional consequences of regulations has never gotten off the ground. Unlike cost-benefit analysis, it has not become a meaningful part of the analysis of regulatory consequences.

On his first day in office, President Biden issued a Presidential Memorandum on Modernizing Regulatory Review, which calls on the Office of Management and Budget to propose procedures for analyzing the distributional consequences of regulations. This Article focuses on what it would take for the Biden effort to succeed where the Clinton and Obama efforts failed. In particular, agencies will need to be provided with clear guidance on the methodologies to use to conduct distributional analysis. The lack of a standardized approach is part of the reason that the prior efforts were doomed. Moreover, agencies will need to take seriously the already existing requirement, so far honored only in the breach, of analyzing the distributional consequences of different regulatory alternatives. Otherwise, they will never be in a position to answer the key question in this area: when are the better distributional consequences of one alternative sufficient to overcome another alternative’s higher net benefits?



Opportunities for Artificial Intelligence in Environmental Compliance

Robert Denney

The environmental compliance process has always been a significant undertaking by the United States Environmental Protection Agency (EPA). Engrained in the process is the call on the agency to use technology to foster more complete compliance with the nation’s environmental statutes. While these statutes were enacted during a “data-starved” time, engrained in them are technology-forcing mandates that have prompted exponential gains in the quality of the natural environment. Now, however, EPA faces new challenges to facilitate even greater gains during a time when the agency’s resources are dwindling.

This Essay analyzes how EPA has turned to technology to facilitate environmental compliance, both today and for applications in the future. The focus of this Essay is on artificial intelligence (AI) and machine learning, though the discussion also touches on more overarching forms of technology use, such as data analytics. Part II starts with a discussion of how the current environmental compliance process plays out, noting the under-compliance problem that is a consequence of EPA balancing a decrease in resources with the agency’s increasing regulatory responsibilities. Part III explains how EPA currently uses technology and big data as a means to mitigate the problems discussed in Part II. For example, the agency’s Next Generation Compliance initiative involves emissions technology and electronic reporting components that serve as a benchmark for how the agency will use technology moving forward.

Part IV concludes with a discussion of novel ways EPA can use AI to facilitate compliance in the future. This Part highlights two recent studies that used machine learning to predict noncompliance risk and to identify facilities that require a certain environmental permit but are currently operating without one. Problems with these future applications are also discussed, including data accuracy issues and systematic biases that may be inherent in the data used .



Charting the Boundaries of Hawaiʻi’s Extensive Public Trust Doctrine Post-Waiāhole Ditch

Ana Ching

Hawaiʻi’s public trust doctrine is unique in its breadth, its origins, and its constitutional basis. Perhaps the most expansive in the United States, the Hawaiʻi public trust doctrine extends to water, land, air, minerals, natural beauty, and Native Hawaiian cultural practices. Although the majority of Hawaiʻi’s public trust cases concern water issues, the Hawaiʻi supreme court has also applied the public trust doctrine in several important land cases. Significantly, the court has applied the doctrine to land extensions created during volcanic eruptions and, most recently, to Mauna Kea, a mountain peak controversially used for both modern astronomy and Native Hawaiian cultural practices. I survey several public trust cases, beginning with Waiāhole Ditch—a water case widely regarded as the cornerstone of Hawaiʻi’s modern public trust doctrine—and ending with the Hawaiʻi supreme court’s 2018 decision in Mauna Kea II.

A survey of the case law reveals that the expansive nature of Hawaiʻi’s public trust doctrine has not always led to greater protections for all trust resources, as courts have ruled that the doctrine requires a balancing between protection and maximum beneficial use. Applying this balancing test, court opinions have, in some cases, resulted in greater protection for Native Hawaiian rights to trust resources. In other cases, however, court application of the balancing test has resulted in resource allocations that harm native interests. In light of the dichotomous results, this Comment recommends that Hawaiʻi agencies like the Department of Land and Natural Resources implement inclusive, participatory processes to ensure that Native Hawaiian concerns are fully considered before taking actions affecting trust resources.