Environmental Law Commons^™

Pollution: The What Of Biodiversity Loss, Andrew W. Torrance, Bill Tomlinson

Texas A&M Journal of Property Law

This Article examines the damage to biodiversity caused by anthropogenic pollution at all levels—to the biosphere, to ecosystems, to communities, to populations, and to individual organisms. It also analyzes pollution control laws across the globe and their efficacy in mitigating or preventing harm to biodiversity. The analysis covers all forms of pollution—air, water, and land—that threaten biodiversity, noting both improvements and ongoing challenges in different regions. The Article provides a comparative study of diverse jurisdictions, including North America, Europe, Oceania, and Asia. It scrutinizes pivotal legislation such as the United States’ Clean Air Act, the UK’s Environment Act, and the …

Invasives: The How Of Biodiversity Loss, Andrew W. Torrance, Bill Tomlinson

Texas A&M Journal of Property Law

Invasive species are non-native organisms, existing outside of their original habitat, which may cause damage to the biodiversity in their new environment. These species often outcompete native species for resources, which can dramatically disrupt ecological balance and biodiversity. This Article first surveys existing invasive species laws, documenting the current legal frameworks that various countries use to manage invasive species. It then proposes an array of new legal approaches that may improve how human civilizations manage the complex issues surrounding invasives. Finally, it evaluates the prospects for preventing—or even rolling back—the harm invasives cause to biodiversity. The broad goal of this …

Goodbye, Zoning?, Michael Allan Wolf

UF Law Faculty Publications

American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

The Modern-Day Discovery Doctrine: Reforming Property Law's "Productive Use" Doctrine For The Age Of Climate Change, Shanthi M. Chackalackal

Michigan Journal of Environmental & Administrative Law

When European settlers first colonized the Americas, claiming Native land as their own, they largely believed their actions to be justified. To Europeans, property rights over land emanated from putting one's labor into that land, "improving" it by removing it from a state of nature. Absent such ''productive use," land had not been claimed and was therefore ripe for the taking. Yet while Native Americans had labored significantly and fundamentally shaped the land around them, European settlers deemed the Americas to be in a state of nature. Such attitudes towards Native American labor and property rights reveal a strikingly limited …

Who Owns The Heat? Property Rights In Geothermal Energy, Gabriel Eckstein

Faculty Scholarship

Landowners can have ownership claims to oil, gas, water, and other tangible natural resources located in their subsoil. But can they also claim rights to the thermal energy found below their land? With 50,000 times more heat energy within the top 10,000 meters (around 33,000 feet) of the Earth’s surface than contained in all of the world’s oil and natural gas resources combined, geothermal energy is a tremendously promising, clean, and renewable energy resource. Yet, ambiguities in property rights related to the development and ownership of geothermal energy resources raise questions about who is entitled to benefit from that potential. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Re-Imagining Tomorrow: A Technology, Innovation Law, And Ethics Symposium On Addictive Technology And Children, Margaret Chon

Seattle University Law Review

In this Foreword, Professor Margaret Chon introduces Seattle University's Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies.

Keynote Address: The Movement To Protect Kids From Addictive Technologies, Gaia Bernstein

Seattle University Law Review

In this keynote address, I describe my personal journey starting with a school outreach program I created in 2017 to address technology overuse among kids. While I initially advocated for self-help methods, I grew to recognize that the tech industry bore responsibility. This realization led me to write Unwired: Gaining Control over Addictive Technologies, which focused on collective action to pressure the tech industry to redesign its addictive products.

I then describe the movement to control addictive technologies and protect kids, which has gained momentum since the end of the pandemic. This movement combines grassroots parent activism with legal-political action. …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

Responding To Digital Addiction, Ned Snow

Seattle University Law Review

In Unwired: Gaining Control over Addictive Technologies, Professor Gaia Bernstein calls our attention to the growing problem of digital addiction. Digital addiction may sound like something out of a science-fiction novel or something that does not raise the same sort of real-life practical concerns as are present in a physical health crisis or an economic decline. But as Bernstein presents the evidence, we learn that the consequences of digital addiction can be just as harmful as a serious disease or a financial depression. Cognitive development disorders, anxiety, emotional depression, social isolation, and other mental health ills can be debilitating—as much …

The Ai Doppelgänger Dilemma: Cloned Voices In The Music Industry, Elizabeth Shields

Seattle University Law Review

With the rise of generative artificial intelligence (AI), there has been an influx of “voice clones”—deep-learning algorithms that create synthetic speech to realistically mimic human voices. Celebrities and, in particular, music artists, have been subjected to the proliferation of AI voice clones on social media platforms like TikTok and streaming platforms such as Spotify. Despite music utilizing AI voice clones having amassed much popularity, this technology can be harmful and highly invasive to musicians whose livelihoods often depend on their distinct voices. While legal scholars have attempted to articulate various rights that could protect a person’s voice, individuals are largely …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …

Life, Liberty And Property: Property As A Weapon Utilized Against Native Peoples And As A Tool To Strengthen Native Sovereignty In The Upper Midwest, Jacob R A Ludwig

HS 390 Primary Research Papers

While many Americans today recognize the continuing paternalism of the federal government towards Tribal governments, much still remains unknown to the public regarding the specific laws, policies and treaties that have provided the continuing legal authority for this paternalism. Throughout American history, the relationship between the federal government and Native American tribes can be seen through the use of violence both in law, and outside of it. Treaties, the basis for removal, have been used by both the federal government and subsequently tribal governments to assert their authority over land. In the Upper Midwest, various Anishinaabe tribes signed several treaties …

Rising Tides And Shifting Sands: Inadequacies In American Climate Responses And An Urgent Call For A Federal Climate Adaptation Policy, Armand J. Avila

Texas A&M Journal of Property Law

Climate change is an increasingly prevalent issue in policy discussions across the United States. Its effects can be observed and measured across ecosystems, industries, and legal jurisdictions, and it is felt in the homes of the people who live and work at the forefront of its impacts. Yet, the federal government’s current policies incentivize states, localities, and private citizens to make poor climate decisions and to put themselves at risk, leading to population growth and property development in some of the most at-risk areas of the country. At the same time, the federal government operates on an outdated disaster response …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Faculty Scholarship

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Taking Back Control: Using The Takings Clause To Hold Animal Agriculture Responsible For Its Waste Problem, Rowan Aragon

Northwestern University Law Review

Between the mid-twentieth century and modern day, the animal-agriculture model has shifted from small farms to industrial operations. During that evolution, the negative externalities of animal-farming practices have intensified. One of those externalities—animal waste—has become particularly problematic. Because of the sheer number of animals raised in the United States for slaughter and dairy production, the magnitude of animal waste produced is overwhelming. To deal with this problem, animal farmers often liquefy the animal waste and then spray it onto open fields. In that spraying process, liquefied animal waste carries through the air and reaches nearby homes, coating those properties with …

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Beyond Agency Authority: Regulating Sulfur Hexafluoride Under An Enhanced Title Ii Framework Of The Clean Air Act, Matthew Gawley

Fordham Environmental Law Review

This paper explores the critical need for robust Congressional action to regulate sulfur hexafluoride (SF6), a greenhouse gas with a global warming potential more than 20,000 times greater than carbon dioxide. Recent Supreme Court decisions––in West Virginia v. EPA and Loper Bright Enterprises v. Raimondo––to restrict EPA authority and end the Chevron doctrine have curtailed federal environmental agencies’ regulatory authority, shifting the responsibility for addressing major environmental challenges back to Congress. Despite being addressed under Title I of the Clean Air Act (CAA) through the 2022 Inflation Reduction Act (IRA), current SF6 regulations prove grossly inadequate. The utilities industry––the largest …

Article Iii Standing For Cercla Private Cost Recovery Actions: How The Test's Strained Logic Belies Its Authority, Jonathan M. Palacios

Fordham Environmental Law Review

This Note examines how Article III standing doctrine applies to

private plaintiffs’ cost recovery actions under § 107(a)(4)(B) of the

Comprehensive Environmental Response, Compensation, and

Liability Act. A review of judicial decisions reveals inconsistencies

in the analysis of injury in fact and traceability, and suggests that

current Article III standing doctrine is misaligned with its purported

objectives. In response, this Note proposes a structured framework

for assessing injury in fact and a refined approach to analyzing

traceability that distinguishes between different forms of causal

uncertainty. These doctrinal adjustments should better align case

outcomes with Article III standing doctrine’s constitutional and …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …