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Environmental Law Review Publishes New Edition; Focus on Ninth Circuit Review

February 18, 2020

Environmental Law, the nation’s oldest law review dedicated solely to environmental issues, published Volume 49, No. 4 in January 2020. This issue is focused on the Ninth Circuit Review, containing twenty-five summaries of environmental and natural resources cases in the Ninth Circuit Court of Appeals decided between January 2018 and January 2019.

Two chapters in the current issue were written by students. Each student chapter examined a controversial circuit split in environmental law.

Student Rachel Jenning’s article, Contractual Relationships Under Cercla: Restoring Cercla’s Innocent Landowner Defense, One Circuit at a Time, discusses the Ninth Circuit’s decision in California Department of Toxic Substances Control v. Westside Delivery of an interpretation of the Comprehensive Environmental Response Compensation Act (CERCLA) statute.

Hannah Clements’ article, Hypertextualism and The Clean Water Act: Rejecting Rigid Interpretations of Environmental Statutes, examines two approaches to interpreting the Clean Water Act, comparing the Ninth and Fourth Circuits’ practical-textual approach with the Sixth Circuit’s hypertextual approach. In comparing these two forms of textualism, this Chapter aims to exemplify why rigid, hypertextual approaches to interpreting environmental statutes can have disastrous practical impacts and lead to absurd results.

This issue also features articles from Lewis & Clark professors, Melissa Powers and Edward Sullivan.

Professor Melissa Powers’ article, Anticompetitive Transmission Development and the Risks for Decarbonization, discusses the Federal Energy Regulation Commission’s (FERC) law eliminating a federal right of first refusal (ROFR) and a case challenging a Minnesota ROFR on Dormant Commerce Clause grounds. The resolution of the lawsuit could have profound impacts on the transition to a decarbonized, multi-scalar, competitive energy system.

Professor Edward Sullivan’s and A. Dan Tarlock’s article, The Western Urban Landscape and Climate Change, surveys the efforts of six Western American cities, namely Los Angeles, San Francisco, Phoenix, Salt Lake City, Seattle and Portland to deal with climate change and uses four “markers” (i.e., transportation, land use, public services, and facilities and energy generation) to evaluate those responses.

The issue also includes the following articles:

Judge Diarmuid F. O’Scannlain’s article, 19th Century Indian Treaties and 21st Century Environmental and Natural Resources Issues: Is There a Connection?, discusses some of the questions raised when environmental policy is made through the judicial enforcement of the Stevens Treaties, particularly questions of interpretation, institutional competence, and State-Tribal relations.

Attorney Damien M. Schiff’s and Attorney Paul Beard II’s article, Preemption at Midfield: Why the Current Generation of State-law-based Climate Change Litigation Violates the Supremacy Clause, argues that deemphasizing litigation as a tool to obtain remedies to climate change makes sense given that the judiciary is institutionally limited to a case-by-case mode of operation, which is ill-suited to producing the comprehensive solution that climate activists demand.

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