Law Commons^™

The Greater Yellowstone Ecosystem Revisited: Law, Science, And The Pursuit Of Ecosystem Management In An Iconic Landscape, Robert B. Keiter

University of Colorado Law Review

Thirty years ago, the Greater Yellowstone Ecosystem (GYE) concept and ecosystem management surfaced as key to preserving this legally fragmented region's public lands and wildlife in the face of mounting development pressures. Yellowstone's grizzly bears were in sharp decline and wolves were absent from the landscape, while bison and elk management issues festered. The GYE's national forest lands were subject to extensive logging, energy leasing, and other commercial activities that cumulatively threatened the region's ecological integrity. In the face of extreme jurisdictional complexity and a strong commitment to agency discretion, a high-profile federal "Vision" effort to improve and better coordinate …

Bulldozing Infrastructure Planning And The Environment Through Trump's Executive Order 13807, Alejandro E. Camacho

University of Colorado Law Review

No abstract provided.

Reevaluating Environmental Citizen Suits In Theory And Practice, David E. Adelman, Robert L. Glicksman

University of Colorado Law Review

Citizen suits are frequently cited as an essential legal innovation by virtue of their capacity to provide a backstop to lax or ideologically antagonistic administrations. Drawing on data from fifteen years of litigation under two prominent environmental statutes, we find little evidence that citizen suits effectively serve this role in practice. Instead, we find that limited resources and institutional barriers strictly limit the number of citizen suits filed annually against the federal government under two of the most litigated environmental statutes, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). While our findings do not negate the …

Contingent Delisting, Justin R. Pidot

University of Colorado Law Review

No abstract provided.

Ecosystem Services And Federal Public Lands: A Quiet Revolution In Natural Resources Management, J.B. Ruhl, James Salzman

University of Colorado Law Review

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twentyfive years ago-the language of ecosystem services. Ecosystem services are the range of benefits that ecological resources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services framework arose in the mid-1990s and quickly became a central strategy for fusing ecology and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem …

Honoring Sally Jewell, Charles Wilkinson

University of Colorado Law Review

No abstract provided.

Dustbowl Waters: Doctrinal And Legislative Solutions To Save The Ogallala Aquifer Before Both Time And Water Run Out, Warigia M. Bowman

University of Colorado Law Review

Eighty-three years after the Dust Bowl, residents of America's High Plains face a dire threat: their primary aquifer faces depletion, and entire sections of the country are set to run out of groundwater by the end of the century or sooner.

The Ogallala Aquifer provides a significant amount of America's agricultural irrigation water and is a primary source of drinking water for Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming.

This Article argues that policymakers should slow the Aquifer's depletion rate by implementing changes to irrigation technology, crop choice, consumer behavior, legal doctrine, and legislation. This Article …

Not Just Air Pollution: How The Clean Air Act Can Fix Zoning, Transportation, And Afforadable Housing, Nicholas D. Monck

University of Colorado Law Review Forum

The Clean Air Act of 1970 produced a revolution in environmental law. From its unique approach to federalism to its technology forcing provisions, it remains an innovative statute to this day. In light of the growing threat posed by climate change, federal administrators have worked to adapt its text to deal with greenhouse gasses and carbon emissions. Global warming, though, is not the only context in which the Clean Air Act (CAA) can be used in ways not originally intended. Although not meant as an urban planning law, the CAA’s Transportation Control Plans (TCPs) offer an opportunity to promote smarter …

The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy

Publications

No abstract provided.

Environmental Justice And The Possibilities For Environmental Law, Sarah Krakoff

Publications

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not …

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

Rethinking Public Land Use Planning, Mark Squillace

Publications

The public land use planning process is broken. The land use plans of the principal multiple-use agencies—the United States Forest Service and the Bureau of Land Management (“BLM”)—are unnecessarily complex, take too long to complete, monopolize the time and resources of public land management agency staffs, and fail to engage the general public in any meaningful way. Moreover, the end result is too often a plan that is not sufficiently nimble to respond to changing conditions on the ground, a problem that appears to be accelerating due to climate change.

It might seem easy to chalk up these problems to …

Sustainable Development: Energy, Justice, And Women, Lakshman Guruswamy

Publications

This article will first offer a functional synopsis relevant to its remit, of the concept of sustainable development (SD) embodied in international law and policy that reflects a tension between economic and social claims as contrasted with environmental protection. While the dominant place acquired by the economic and social dimensions of SD will be recognized, it will argue consistent with the predicate of justice discussed in the article, that the protection of the human environment encompasses the plight of the energy poor and their women and children. Second, the article will delineate the contours of one of the great developmental …

Environmental Gentrification, Sarah Fox

University of Colorado Law Review

Gentrification is a term often used, much maligned, and difficult to define. A few general principles can nonetheless be distilled regarding the concept. First, gentrification is spurred by rising desirability of an area for housing or commercial purposes. Second, this rising desirability, following basic supply-and-demand principles, leads to higher property values and rents in an uncontrolled market. Third, gentrification leads to a shift in the demographics of a neighborhood. This shift can change not only the socioeconomic and racial composition of the area but also the community's character, as residential and commercial options begin to reflect the preferences of the …

Reviving The Environmental Justice Potential Of Title Vi Through Heightened Judicial Review, Rachel Calvert

University of Colorado Law Review

Title VI of the Civil Rights Act has unrealized potential to correct the racialized distribution of environmental hazards. The disparate impact regulations implementing this sweeping statute target the institutional discrimination that characterizes environmental injustice. Agency decisions routinely deny claims that federal funds are contributing to projects that disproportionately pollute minority communities, allegedly in violation of Title VI disparate impact regulations. These dismissals are effectively final, as trends in civil rights jurisprudence have essentially foreclosed would-be litigants' opportunities for meaningful judicial review. Their last remaining avenue for recourse is to trigger an arbitrary and capricious review of agency actions, but the …

Why You Should Be Unsettled By The Biggest Automotive Settlement In History, Sarah Dadush

University of Colorado Law Review Forum

No abstract provided.

Feeding The Eco-Consumer, Alexia Brunet Marks

Publications

There is a lot of talk about making our food system more “sustainable,” and eco-consumers — those who consider environmental sustainability as an important purchasing priority — are making themselves heard. This growing consumer segment is rapidly gaining national attention for moving more sustainable products to the market, and for its willingness to pay more for these options. However, while economists normally predict that higher prices lead profit-minded suppliers to enter a market to meet a new and growing demand, this transition is not occurring at the pace one would expect.

This Article argues that land tenure status — whether …

Identity Harm, Sarah Dadush

University of Colorado Law Review

In September 2015, the world learned that Volkswagen had rigged millions of its "clean diesel" vehicles with illegal software designed to cheat emissions tests. Contrary to what had been advertised, the vehicles are anything but clean. When affected owners learned that their cars were toxic, what were they most upset about? Was it that their cars were now worth fewer dollars? Or that they had been deceived into being hyperpolluting drivers, when they thought they were being green? Coverage of the emissions scandal strongly suggests that affected car owners experienced both kinds of disappointment, economic and noneconomic, and in heavy …

Holding The Harmful Harmless: Lessons From Gold King Mine, Timbre Shriver

University of Colorado Law Review

The disaster at Love Canal focused the nation's attention on hazardous waste sites left behind by years of corporate recklessness and mismanagement. To fill the regulatory gap and prevent future incidents like Love Canal, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The statute not only empowers the EPA to retroactively hold parties responsible for the mismanagement of hazardous waste, but it also provides a funding mechanism-Superfund-to ensure that the most dangerous sites are cleaned up even when responsible parties cannot be found or, more likely, are insolvent. However, an often-overlooked provision in the CERCLA framework grants …

Climate Change Disinformation, Citizen Competence, And The First Amendment, James Weinstein

University of Colorado Law Review

No abstract provided.

Getches-Wilkinson Center Newsletter, Fall 2017, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

Text Of Solicitor Opinions And A Presidential Letter Regarding National Monuments And The Antiquities Act Of 1906, Mark Squillace

Research Data

These five full-text documents are cited in Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473 (2003), available at http://scholar.law.colorado.edu/articles/508; and/or Mark Squillace, Eric Biber, Nicholas S. Bryner & Sean B. Hecht, Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 Va. L. Rev. Online 55 (2017), http://www.virginialawreview.org/sites/virginialawreview.org/files/Hecht%20PDF.pdf:

• U.S. Department of the Interior, Office of the Solicitor, Opinion of Apr. 20, 1915 (cited in Opinion of January 30, 1935, M-27657).

• U.S. Department of the Interior, Office of the Solicitor, Opinion of June 3, 1924, M-12501, M-12529 (cited …

Entrepreneurial Administration, Philip J. Weiser

Publications

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a …

Pride And Prejudice And Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, And State Exceptionalism Failed Flint, Michigan, Brie D. Sherwin

University of Colorado Law Review

It was just over forty years ago, shortly before the Safe Drinking Water Act was passed, that a group of mothers in the small, sleepy town of Woburn, Massachusetts realized there just may have been a connection between their children's leukemia and the town's water supply. They withstood the terrible smell and masked the water's rancid flavor with orange juice. For months they inquired, complained, and assembled in hopes that someone in a position of authority would notice what was so obvious to them. And for months they were dismissed and even ridiculed. Turns out they were right. It took …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

The Colorado River Revisited, Jason Anthony Robison

University of Colorado Law Review

Fifty years ago, former Stanford Law School Dean Charles Meyers published The Colorado River, 19 STAN. L. REV. 1 (1966), arguably the most famous piece of legal scholarship ever written on this vital water source and the complex body of laws governing its flows-colloquially, the "Law of the River." That piece and a companion, The Colorado River: The Treaty with Mexico, 19 STAN. L. REV. 367 (1967), offered seminal accounts of the legal histories, doctrinal features, and unresolved perplexities of the Law of the River's international and interstate allocation framework. Five decades later, between thirty-five and forty million U.S. residents …

Clean Electrification, Shelley Welton

University of Colorado Law Review

To combat climate change, many leading states have adopted the aim of creating a "participatory"g rid. In this new model, electricity is priced based on time of consumption and carbon content, and consumers are encouraged to adjust their behavior and adopt new technologies to maintain affordable electricity. Although a more participatory grid is an important component of lowering greenhouse gas emissions, it also raises a new problem of clean energy justice: utilities and consumer advocates claim that such policies unjustly benefit the rich at the expense of the poor, given the type of consumer best able to participate in the …

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

Getches-Wilkinson Center Newsletter, Fall 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.