Environmental Law Commons^™

Insurgent Until Proven Innocent: Land, Power, And The Right To Defend Rights, Kelsey Jost-Creegan

Michigan Journal of International Law

As the climate crisis intensifies, advocates worldwide have stood up to defend their communities, territories, and environment. In response, they have faced violent retaliation. This repression persists despite evolving international, regional, and national-level legal frameworks around the “right to defend rights” and the “right to protection.” This article begins by providing a comprehensive overview of this evolving legal landscape. Against this backdrop, the article examines the tactics and architectures of violence used to repress land and environmental defenders through the lens of counterinsurgency theory.

The article proposes a typology of counterinsurgent violence including: surveillance; stigmatization; criminalization; arbitrary detention; infiltration; cooptation; …

Corporate Fiduciary Duties And The Climate And Biodiversity Crisis, Eric W. Orts, Sandra G. Schafhäutle

Michigan Journal of Environmental & Administrative Law

This Article argues that addressing one of the most urgent environmental challenges facing humanity today—the global climate and biodiversity crisis—calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by …

The Energy And Environmental Footprint Of Ai, Michael P. Vandenbergh, Ethan I. Thorpe, Jonathan M. Gilligan

Michigan Journal of Environmental & Administrative Law

Artificial intelligence (AI) has the potential to create major economic and social benefits, but also to rapidly escalate electricity demand and its associated environmental impacts. Information availability has been a cornerstone of environmental law for half a century, and this Article argues that providing information to individual, corporate, and other users about the electricity demand and environmental impacts of AI can reduce those impacts without delaying development of the technology. Little is known about how different large language models (LLMs) compare on these metrics, though. To address whether users have access to the information necessary to address this shortcoming, the …

Expressive And Acquisitive Norms Of Property In The Municipal And Private Contexts: Guerrilla Gardening And Property Reform, Anna Benham

Michigan Journal of Environmental & Administrative Law

There exists a type of expressive property outlaw—the guerrilla gardener. Guerrilla gardening is the practice of gardening without the legal right to do so. The practice of guerrilla gardening can sometimes take on rooted permanence, and as a result, progressively higher stakes. Guerrilla gardeners can operate over years, planting plots of greenery in areas where their hard work can be removed, quite literally, overnight. Many guerrilla gardeners operate with the implicit consent of their neighbors—consent that can be revoked at any time. However, when one bends away from the light insurrections of nonoffensive trespass and examines the other end of …

Four Decades, No Progress: Time For A Columbia River Basin Compact, Liesl L. Bogaard

Michigan Journal of Environmental & Administrative Law

Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River …

Owning Geothermal Energy, Gabriel Eckstein

Michigan Journal of Environmental & Administrative Law

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public …

A Guide To The Best Reading Of Environmental Law: Presumptions For Stability In Statutory Interpretation, Sanne H. Knudsen

Michigan Journal of Environmental & Administrative Law

Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities.

On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for …

State Climate Superfunds, Rachel Rothschild

Articles

The harmful effects of climate change have already arrived in cities and states across America, with disasters increasing markedly in recent years along with more gradual environmental changes like sea-level rise and drought. To protect populations and natural resources, significant funding will be necessary for preventative measures as well as disaster response.

At present, it is states and ordinary taxpayers who must shoulder the enormous costs and planning for climate adaptation. A number of state legislators, however, have recently proposed enacting new laws that would require the companies who have most profited from fossil fuel usage to assist in funding …

Realizing Nepa’S Reasonable, Productive, And Enjoyable Harmony: The Fiscal Responsibility Act’S Amendments And Implications For Practitioners, L. Sheldon Clark, Catherine E. Kanatas, Maxwell C. Smith

Michigan Journal of Environmental & Administrative Law

The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a …

Noise Law, Joshua Ulan Galperin

Michigan Journal of Environmental & Administrative Law

The rumble of traffic, the drone of air conditioners, the blast of construction equipment. These are the mundane sources of noise pollution that we all experience but rarely think about. Or, if we do think about noise pollution, we don’t think of it as a central piece of federal environmental law. This Article, however, demonstrates that noise law is, or was, central to American environmental law, and it offers insights into how environmental protection and administrative governance work today.

In the 1970s, during the height of environmental activism and policymaking, lawmakers recognized noise as a serious pollutant alongside issues we …

Streamlining Wildlife Regulation, Robert L. Fischman

Michigan Journal of Environmental & Administrative Law

A recent burst of revisions in the bedrock regulations governing projects that may adversely affect wildlife represents a generational shift in policy. Streamlining federal decision -making drove much of this reform. Streamlining offers a path to address climate change without abandoning a longstanding commitment to wildlife conservation. The conservation community recognizes the need to build new infrastructure to reduce the rate of climate change through air emissions. The most urgent priority is decarbonizing the electrical ~rid through renewable energy generation and a better transmission network. Adaptation to the "new abnormal" of climate-driven environmental disruption demands federal approvals for a host …

Lead Telecommunications Cables: A Call For Concern?, Zachary Young

Michigan Journal of Environmental & Administrative Law

From the late 1800s until the 1950s, telecommunication companies across the United States utilized lead casing to protect their telecommunication lines. As technology developed and different types of plastic coatings were created, telecommunication companies phased out the use of lead cables. However, the lead cables remain in the air and buried in the ground, even continuing to provide telephone service for some. The failure to remove these cables, most of which are not in use anymore, has generated a slew of issues for the modem-day telecommunication companies that have inherited these cables from their predecessors. As the protective casing decays, …

The Climate Whisperers, Cale Jaffe

Michigan Journal of Environmental & Administrative Law

Environmental groups and their allies have seen two of the bedrock statutes of modern environmental law (the Clean Air Act, Clean Water Act) eroded through recent decisions from the Supreme Court. At the same time, political polarization around climate policy- the gap between Republicans and Democrats on whether worsening global warming merits a response- is wider than it has ever been.

Despite these dispiriting headwinds, there are some encouraging counterpoints of recent climate progress in politically conservative communities. The heart of this essay is simply sharing these stories so we can learn from them. I label the advocates who succeeded …

Drawing Lines In The Sand: Armed Conflict, Climate Damage And Setbacks To Climate Action, Beatrice L. Hamilton

Michigan Journal of Environmental & Administrative Law

Armed conflicts have a significant and detrimental effect on the climate system, with considerable implications for efforts to mitigate and adapt to climate change and the civilian population. Yet the environmental provisions under the law of armed conflict (LOAC), drafted some half a century ago, struggle to adequately address these concerns. This article assesses the capacity of LOAC to address conflict-driven climate damage and its cascading impacts by characterizing these harms as environmental damage and as injury to civilians. The analysis highlights opportunities for broadening LOA C's scope and offers recommendations to enhance its capacity to address climate damage and …

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 …

The Dormant Power Of State Agencies To Fight Environmental Racism, David Handelman-Holmes

Michigan Law Review

Despite repeated promises by Democratic presidents to address environmental justice (EJ), meaningful federal action on the issue remains elusive. The EJ obligations that have been imposed on federal agencies are all purely procedural, not substantive. Such procedural obligations—like filing environmental impact statements and providing forums for community feedback—may facilitate greater transparency and accountability from industry and government agencies. But in the absence of more substantive obligations—like stricter emissions caps in highly burdened communities of color—these procedural requirements are often satisfied through mere box-checking. Meanwhile, litigants pursuing relief through the U.S. Constitution’s Equal Protection Clause face closed courthouse doors unless they …

An Ecofeminist Approach To Climate Risks, Angela Hefti

Michigan Journal of International Law

Climate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

The Law Of Energy Abundance, Alexandra B. Klass, Matthew Appel

Articles

For the first time in decades, electricity demand in the United States is increasing due to the growth of data centers to power artificial intelligence, new manufacturing hubs, and transportation electrification. At the same time, coalfired power plants have been closing in response to competition from lower cost natural gas and renewable energy. Clean energy is being rapidly deployed to replace fossil fuels but not quickly enough to address concerns about demand growth and grid reliability. Accordingly, there is a growing imbalance between electricity supply and demand in many regions of the country that threatens to increase electricity prices and …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Examining State Climate Superfund Legislation, Madison Calhoun, Rachel Rothschild, Jonathan Binder, Elenda Mihaly, Justin Mankin, Ben Lippard, Mary Wood

Articles

There has been an influx of “climate superfund” bills introduced and adopted in state legislatures across the country. Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), these laws are designed to recover costs from large emitters of greenhouse gases (GHGs) to pay for climate adaptation infrastructure. Following CERCLA’s strict liability framework, major polluters in New York and Vermont would be required to pay into state-managed funds in proportion to their shares of total GHG emissions; California, Maryland, Massachusetts, New Jersey, and Oregon have proposed similar bills. On March 19, 2025, the Environmental Law Institute hosted a …

Repurposed Energy, Alexandra B. Klass, Hannah Wiseman

Articles

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Environmentalism And Antitrust, Albert H. Choi, Daniel A. Crane

Law & Economics Working Papers

In recent years, there has been a proliferation of interest concerning environmental issues and the application of the antitrust laws. Numerous commentators, for instance, have argued that the antitrust enforcement should adjust to reflect the environmental harm (or benefit) that is generated from a competitive condition. In this paper, we take a step back and argue that analysis of the intersection between antitrust and environmentalism should begin with more mundane questions of economics. More specifically, we argue that environmental regulations can inform antitrust analysis by considering (at least) three issues: (1) the impact of environmental regulation on the firms' production …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Articles

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

The Last Frontier: Fair Procedure In Informal Administrative Adjudication, Michael Asimow

Michigan Journal of Environmental & Administrative Law

The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances …

Rewriting Nepa: Statutory Continuity And Disruption In A Polarized Era, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

For decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.

This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the …

An Artificial Intelligence Report Card For Judicial Review, Zoe E. Niesel

Michigan Journal of Environmental & Administrative Law

The rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA's flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency …

From Columbus To Lansing: Exploring The Prosecution Of Environmental Crimes Within Epa Region 5, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Transgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, …

Solving The Stranded Asset Problem Of Retiring Coal Plants: An Evaluation Of Regulatory Approaches, Matthew Appel

Michigan Journal of Environmental & Administrative Law

Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal …

The Misleading Successes Of Cost-Benefit Analysis In Environmental Policy, David E. Adelman, Amy Sinden

Michigan Journal of Environmental & Administrative Law

This Article critically examines the rise of cost-benefit analysis (CBA) in environmental policy and the profound disconnect that has persisted between the actual practice of CBA and its normative grounding. Although CBA is now synonymous with rational decision-making in federal agencies, this has not always been the case. Views about CBA have evolved from bipartisan rejection in the 1970s, to partisan division (Republicans for, Democrats against) during the Reagan-Bush years, to a broad embrace of CBA in the mid-1990s, when centrist legal scholars were instrumental in crafting a new defense of CBA based on a mix of welfare economics and …