Law Commons^™

The Great Climate Migration: A Critique Of Global Legal Standards Of Climate-Change Caused Harm, Mariah Stephens

Sustainable Development Law & Policy

Approximately 2.4 billion people, or about forty percent of the global population, live within sixty miles (one hundred kilometers) of a coastline. The United Nations (“U.N.”) determined that “a sea level rise of half a meter could displace 1.2 million people from low-lying islands in the Caribbean Sea and the Indian and Pacific Oceans, with that number almost doubling if the sea level rises by two metres.” The U.N. also reports that “sudden weather-related hazards” have internally displaced an annual average of 21.5 million people since 2008. Within the next few decades, this number is likely to continue to increase. …

Editors' Note, Rachel Keylon, Meghen Sullivan

Sustainable Development Law & Policy

For more than two decades, the Sustainable Development Law and Policy Brief (“SDLP”) has published works analyzing emerging legal and policy issues within the fields of environmental, energy, sustainable development, and natural resources law. SDLP has also prioritized making space for law students in the conversation. We are honored to continue this tradition in Volume XXIII.

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Manure, Methane, And Money: The Anaerobic Digester Disaster In California, Pegga Mosavi

Animal Law Review

The small, idyllic family farms that come to mind at the first mention of farming are all but gone, replaced by enormous factories that churn out animals at record speed, with little regard for their health and welfare. These factory farms produce a host of issues, including pervasive water and air pollution, particularly in vulnerable agricultural communities like those of the San Joaquin Valley in California. While the detriments of the factory farm model are numerous, contribution to climate change in particular has garnered significant attention. Animal agriculture in the U.S. produces 36% of the country’s methane, a greenhouse gas …

Accounting For Climate Change In United States Regional Ocean Planning: Comparing The Obama And Trump National Ocean Policies To A Climate-Forward Approach, Taylor Goelz

Sustainable Development Law & Policy

No abstract provided.

“At What Cost?’: The Future Of Securities Enforcement In Climate Change Litigation, Angela Washington

Sustainable Development Law & Policy

No abstract provided.

Climate Gentrification: An Imminent Threat To Oceanfront Cities, Marcel Apple

Sustainable Development Law & Policy

Overview

Traditionally, gentrification occurs when real estate prices appreciate, leading to significant cultural change in low-income communities and involuntary displacement of low-income residents. In recent years, Miami, Florida is beginning to feel the impacts of “climate gentrification.” High-income buyers, who historically develop property close to the ocean, are affected by rising sea levels and increasingly look inland to develop areas on higher ground. The influx of real estate investments in these is expected to lead to spiking home prices and property taxes, forcing many longtime community members to abandon their homes.

Homeowners in these communities already report approaches from developers …

Genetically Engineered Food, Food Security, And Climate Change, Joanna K. Sax

Faculty Scholarship

Malnutrition is the leading cause of death and disease worldwide. Climate change is an existential crisis. We need to feed people and address the role of agriculture in climate change – at the same time. This is problematic, as agriculture inherently creates issues that contributes to climate change. Utilizing science, through genetically engineered crops, is one way to close the harm gap between food security and climate change. This essay addresses the controversial issue of genetically engineered crops with the complicated issues of food security and climate change by analyzing three main issues: (1) how the science of genetically engineered …

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

Vecinos Para El Bienestar De La Comunidad Costera V. Ferc, Malcolm M. Gilbert

Public Land & Resources Law Review

The D.C. Circuit Court remanded three Brownsville, TX LNG approval orders to FERC for failing to adequately explain conclusions around environmental justice and climate concerns. The Court ordered FERC to reevaluate whether the projects are in the public interest. The LNG terminals and pipeline will disproportionately impact low-income, minority communities, and substantial greenhouse gas emissions from production and export will contribute to anthropogenic climate change. This case note explores the role that environmental justice and climate change play in federal agency decision-making processes, analyzes the legal framework for the Court's decision, and discusses how the outcome of this litigation could …

New Tech, New Deal: Mining Policy Options In The Face Of New Technology, Isabelle Ramdoo, Aaron Cosbey, Jeff Geipel, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Throughout the history of mining, technological innovation has played a vital role across all cycles of mining projects. The new wave of technological adoption is a combination of evolutionary and revolutionary technologies, with an increasing focus on the latter. An acceleration in investments in disruptive technologies in recent years has seen the large-scale mining sector finally catching up with a dynamic that has already advanced in many other sectors. The reasons for this shift include more difficult geology, declining ore deposits, the need to reverse a secular decline in productivity, the need to improve safety for mine workers, a need …

Cows V. Capitalists: Visions Of A Post-Carbon Economy, Alison Peck

Journal of Food Law & Policy

I was tempted to entitle this book review something like, "Why the Farm Bill Is the Key to Our Energy Future (Hint: It's Not About Ethanol, Methane Emissions, or Carbon Sinks)." But in addition to being too long to fit across the header of a law review page, such a title would have been slightly misleading. Actually, in Simon Fairlie's view, our future is about ethanol, methane emissions, and carbon sinks - but not in the way our current agricultural policies understand and deal with these subjects.

Global Food Security: In Our National Interest, David P. Lambert

Journal of Food Law & Policy

All Americans have a direct stake in the problem of global hunger, which has many dimensions. For most of us it is a profound moral issue, and we are guided by our faith to respond.

"All I Do Is Win": The No-Lose Strategy Of Cafo Regulation Under The Caa, Karl J. Worsham

Journal of Food Law & Policy

Corporate farms, often known as concentrated animial feeding operations ("CAFO'), provide inexpensive animal products but do so by externalizing the cost of their operation in the form of environmental harms and risks to human health. This article explores one possible approach to mitigating CAFO-caused harms. It argues that CAFO regulation under any one of three Clean Air Act ("CAA ") programs will result in net benefits, not just for air quality, but also for other CAFO-caused harms and thus, that CAA regulation of CAFOs is a no-lose strategy. The article then goes further to conclude that, while regulation under any …

The History And Future Of Genetically Modified Crops: Frankenfoods, Superweeds, And The Developing World, Brooke Glass-O'Shea

Journal of Food Law & Policy

In a 1992 letter to the New York Times, a man named Paul Lewis referred to genetically modified (GM) crops as "Frankenfood," and wryly suggested it might be "time to gather the villagers, light some torches and head to the castle." Little did Lewis know that his neologism would become the rallying cry for activists around the world protesting the dangers of genetic engineering. The environmental activist group Greenpeace made great use of the "Frankenfood" epithet in their anti-GM campaigns of the 1990s, though they have since backed away from the word and the hardline stance it represents. But genetically …

Equipping The Nigerian National Petroleum Corporation For The Low-Carbon Transition: How Are Other National Oil Companies Adapting?, Perrine Toledano, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye, Francisco Javier Pardinas Favela

Columbia Center on Sustainable Investment Staff Publications

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.

Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone …

Electric Utility Alignment With The Sdgs & The Paris Climate Agreement, Perrine Toledano, Aniket Shah, Nicolas Maennling, Ryan J. Lasnick

Columbia Center on Sustainable Investment Staff Publications

The 2030 Sustainable Development Agenda poses a unique and critical challenge to the energy sector: how to scale access to clean energy to power sustainable, economic development for a growing population, while simultaneously decarbonizing global energy supply. Expanding access to clean energy will play a crucial role in achieving nearly every one of the Sustainable Development Goals, including those related to agricultural production, health outcomes, educational performance, water systems, access to infrastructure, and reducing inequalities. However, practices by some actors in the energy sector, and continued over-reliance on greenhouse gas-intensive fossil fuels also undermine global efforts to mitigate climate change …

(Carbon) Farming Our Way Out Of Climate Change, Alexia Brunet Marks

Publications

Numerous climate-related emergencies highlight the challenges and urgency posed by climate change: the 2018 Intergovernmental Panel on Climate Change (IPCC) Report, the Global Climate Action Summit in California and international student walkouts, to name a few. While the IPCC Report sent an urgent cry to reduce total emissions and to achieve specific results—45% reduction by 2030 and net-zero emissions by 2050—reductions need to be combined with capturing and storing atmospheric carbon dioxide. Scientific studies have shown that an annual increase of 0.4% of carbon stored in soils would make it possible to stop the present increase in atmospheric CO2.

This …

Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

On September 27^th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights.

Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in …

Juliana V. United States, Daniel Brister

Public Land & Resources Law Review

In 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the …

Animal Agriculture Liability For Climatic Nuisance: A Path Forward For Climate Change Litigation?, Daniel E. Walters

Faculty Scholarship

Despite possessing statutory authority to regulate at least some contributing causes of climate change, environmental regulators in the United States have recently found themselves tied up in political gridlock. In response, advocates are turning from the regulatory track to a common law liability track, bringing public nuisance suits against fossil fuel producers and electric utilities. However, most of these public nuisance suits have met a common fate: they have been held to be displaced by the comprehensive regulatory framework for controlling greenhouse gas emissions contained in the Clean Air Act. As long as there is even the possibility of regulatory …

Manure Management For Climate Change Mitigation: Regulating Cafo Greenhouse Gas Emissions Under The Clean Air Act, Katrina A. Tomas

University of Miami Law Review

Climate change is the defining challenge of our time, which if unbridled, will imperil our communities and the viability of future generations. Efforts to reduce global temperature rise require more than merely reforming carbon dioxide emissions from the energy and transportation sectors. Notably, climate solutions cannot be reached without simultaneously addressing the more potent methane and nitrous oxide gases. In the United States, intensive factory farms, legally known as Concentrated Animal Feeding Operations (“CAFOs”), are responsible for large emissions of these two greenhouse gases due to manure mismanagement. While there are no federal environmental regulations in place for mitigating CAFOs’ …

Savior Of Rural Landscapes Or Solomon's Choice? Colorado's Experiment With Alternative Water Transfer Methods For Water (Atms), Lisa Dilling, John Berggren, Jennifer Henderson, Douglas Kenney

Publications

This article focuses on the emerging landscape for Alternative Transfer Methods (ATMs) in Colorado, USA. ATMs are developing within a legal landscape of water rights governed by prior appropriation law, growing demand for water in urban centers driven by population growth, and an aging rural farm population whose most valuable asset may include senior water rights. Rural-urban water transfers in the past have been linked to the collapse of rural economies if pursued to the extreme extent of “buy-and-dry,” where water rights were purchased outright and permanently removed from agricultural land (e.g. Crowley County). This article focuses on the emerging …

The Carbon Tax Vacuum And The Debate About Climate Change Impacts: Emission Taxation Of Commodity Crop Production In Food System Regulation, Gabriela Steier

Pace Environmental Law Review

The scientific consensus on climate change is far ahead of U.S. policy on point. In fact, the U.S. has a legal vacuum of carbon taxation while climate change continues to impact the codependence of agriculture and the environment. As this Article shows, carbon taxes follow the polluter-pays model, levying taxes on the highest greenhouse gas (“GHG”) emissions—and contributions to climate change. But this is not only unsustainable; it would also undermine agricultural production and, thus, food security. This Article describes how the law can regulate climate change contributions and promote adaptation and mitigation supported through carbon taxes in the agricultural …

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …