Environmental Law Commons^™

The Right To A Stable Climate: Common Law Remedies And Constitutional Protections In Washington State, Ella Koscher

Washington Journal of Social & Environmental Justice

The climate crisis touches every corner of the globe. Climate

change exacerbates the intensity of natural disasters, droughts, floods,

and wildfires, and accelerates sea level rise, desertification, habitat loss,

and species extinction. Billions of people, including millions of U.S. residents,

are currently highly vulnerable to these impacts. The science has

long established that greenhouse gases from fossil fuel use and production

are a main driver of climate change, and the largest source of greenhouse

gas emissions in the U.S. derives from our fossil fuel-based energy

system. Various oil and gas companies produce, advertise, and distribute

fossil fuels in the U.S., …

The Canons Fell Silent: An Analysis Of The Supreme Court's Failure To Use Statutory Interpretation Tools In Sackett V. Epa, Lauren Carlsen

Washington Law Review

In 2023, the United States Supreme Court denied decades of precedent, agency action, and the proper use of canons of interpretation in its decision in Sackett v. Environmental Protection Agency (Sackett). This case adopted the “continuous surface connection” test, which requires an indistinguishable surface water connection between a wetland and a navigable water to assert Clean Water Act jurisdiction over the wetland. This limitation on agency authority under the Clean Water Act was created through a statutory analysis that failed to apply the “Plain Meaning” and “Whole Act” canons of statutory interpretation. The Court narrowly applied the meaning of …

A Right Without A Remedy: The Court’S Failure To Quantify The Agua Caliente’S Federal Reserved Water Rights, Lauren Block

Washington Law Review

The Agua Caliente Band of Cahuilla Indians has inhabited the Coachella Valley region since time immemorial. Through a series of 1870s executive orders, the United States government reserved land for the Tribe to establish a permanent home within the bounds of their ancestral homeland. Underlying this permanent home is the Coachella Valley aquifer, a groundwater source that has been in a continuous state of overdraft for decades. Against the backdrop of climate change, water scarcity, and other concerns, the Tribe sued Coachella Valley’s water management agencies in 2013, alleging the Tribe owned a portion of the water in the aquifer …

Flexible Funding Authorities To Support Tribal Climate Adaptation, Monte Mills, Sydney Anderson, Lauren Young

Articles

This project is part of a policy research effort intended to support Tribes, federal agencies, and Tribal and non-Tribal organizations in addressing some of the climate adaptation barriers and needs experienced by Northwest coastal Tribes. Accessing and administering Federal funds is a significant challenge for Tribes. Existing federal funding sources are often accompanied by rigid rules that make it difficult for Tribes to flexibly allocate funds as needed, and include strict qualification criteria that limit Tribal access to funds. Short-term funding cycles can be disruptive to long-term staffing and project needs, and are often misaligned with Tribal priorities.

Rights Of Nature, Wrongs For The Commons: Risks Of Assigning Legal Personhood To The Rivers Of Washington State, Srinandan Ramachandran

Washington Journal of Social & Environmental Justice

The Rights of Nature (“RoN”) movement, which seeks to grant legal personhood to natural entities, has recently gained traction in Washington State and globally. While intended to enhance environmental protection and Indigenous sovereignty, RoN burdens commons governance by expanding the right to exclude. This paper advances a critique of proposals to grant legal personhood to rivers in Washington State, highlighting conflicts with standing, liability, and the jurisprudential tenets of legal personhood. RoN undermines equitable usufructuary access to the commons, or lands and waters without exclusionary rights, thereby impeding marginalized peoples’ ability to utilize shared resources. Instead of assigning legal personhood …

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

Drawing Lines In The Sea: Indigenous Sovereignty Through The Coastal Zone, Tyler Hall

Washington Journal of Social & Environmental Justice

No abstract provided.

(Environmental) Justice For All: Rethinking Environmental Disaster Remedies, Alyssa Umberger

Washington Journal of Social & Environmental Justice

No abstract provided.

Under The Umbrella Of Water Law: Why Rainwater Harvesting Should Constitute A Valid Water Right, Jordann Krouse

Washington Law Review

Rain is a major source of water. It provides for our greatest needs, such as feeding our gardens, crops, rivers, and lakes. As global climate change continues to unfold, the impacts of water availability and water pollution simultaneously grow more urgent. Water rights are a mechanism in the United States’ legal system to allocate, regulate, and manage water as a natural resource. These rights are limited, however, in their coverage and varied in their application. For example, access to rainwater is not a recognized water right despite being a major source of water. The ecological and economic incentives of rainwater …

Planning A New Paradigm: Tribal Co-Stewardship And Federal Public Lands Planning, Monte Mills, Martin Nie

Articles

Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last half century, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and …

How Detrimental Is Transunion V. Ramirez, Really? Understanding The Impact On Environmental Law, Lauren Young

Washington Law Review

In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would significantly restrict plaintiffs’ ability to invoke the jurisdiction of federal district courts. Building off its 2016 case, Spokeo v. Robins, the Court declared that intangible harms are only concrete when “plaintiffs have identified a close historical or common-law analog[] for their asserted injury.” The “common-law analog[]” required a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The Court mandated this requirement …

Toxic Narratives, Toxic Communities, And Enforcement Of Environmental (In)Justice, Alyse Bertenthal

Washington Law Review

The United States has committed to enforce environmental justice in ways it never has before. A spate of new policies aims to increase resources for environmental agencies’ enforcement sections, improve training for environmental enforcement staff, and ensure community engagement in environmental enforcement decision-making. Yet there exists mounting evidence that enforcement of environmental laws happens less frequently and less vigorously in low-income and minoritized communities.

We need to understand why that is happening. Many commentators, opining from a distance, point to insufficient resources for environmental enforcement and legal and political constraints on environmental agencies. While not discounting these reasons, this Article …

Predicting (And Protecting) The Future Of Environmental Law After Loper Bright, Sanne H. Knudsen

Articles

Nostradamus, the sixteenth-century French philosopher and seer, is said to have predicted many things: the French Revolution, the rise of Napoleon, the Great Fire of London, the rise of Adolf Hitler, the 9/11 attacks on the World Trade Center. Of course, there are skeptics. The predictions, after all, tended to be “cryptic and vague.”

Still, if alive today, I wonder what quatrain Nostradamus might write—and what elusive meaning his fans might try to decode—about the future of environmental law in the United States. Would he predict that environmental law will be ravaged by the binary politics of the moment, reduced …

Transportation Racism And State-Created Danger: A Civil Rights Litigation Strategy For Pedestrians Harmed By Traffic Violence, Riley Freedman

Washington Law Review

Pedestrian fatality rates in the United States are markedly high compared to peer nations and are on the rise. The distribution of these deaths shows an alarming racial gap: Black pedestrians are twice as likely to be killed compared to white pedestrians. One significant factor that explains the disparity is the greater presence of wide, high-speed roads—built to move traffic quickly at the expense of pedestrian safety—in Black neighborhoods. In some cases, there is evidence that governments intentionally placed roads through and around Black neighborhoods for racially discriminatory reasons.

This Comment argues that a pedestrian harmed or killed by a …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

Articles

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

Brief Of Amicae Curiae Susan Boundy-Sanders And Paula Waters In Support Of Friends Of Sammamish Valley And Futurewise, King County V. Friends Of Sammamish Valley, Washington State Supreme Court Docket No. 102177-1, William Bailey

Court Briefs

No abstract provided.

Amicus Brief Of Native Nations In Montana, Kathryn Shanley, And Denise Juneau, Held V. State Of Montana, Montana Supreme Court Docket No. Da 23-0575, Monte Mills, Jeremiah Chin, Mia Montoya Hammersley, Fredrick Ole Ikayo, Clare Derby, Natasha De La Cruz

Court Briefs

Montana’s Constitution specifically recognizes and protects the right of Native Nations and Indigenous individuals to preserve and sustain their cultural traditions through the education of future generations. These rights are inherently tied to the right to a clean and healthful environment.

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Fast-Tracks And Prizes: A Multi-Pronged Approach To Incentivizing Green Technology Innovation, Benjamin Desch

Washington Law Review

Faced with the ever-worsening climate crisis, many nations—including the United States—have increasingly recognized the urgent need for rapid advancements in green, clean, and sustainable technologies. Patents play a fundamental role in incentivizing technological innovation, but the traditional patent process is too slow to match the urgency of the climate crisis. At the same time, the marketplace significantly undervalues green technology patents because they confer benefits to third parties not involved in the transaction (referred to as “positive externalities”). To address the urgency issue, patent “fast-track” programs have been implemented to speed up the patent application review process. To mitigate the …

Making Bad Decisions With Toxic Emissions: Exploring The Prosecution Of Companies For Superfund Crimes, Dr. Melissa Jarrell Ozymy, Dr. Joshua Ozymy

Washington Journal of Social & Environmental Justice

Marginalized communities in the United States bear the brunt of toxic pollution from Superfund sites. Criminal provisions in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, allow prosecutors to seek penalties for environmental crimes involving significant harm and/or culpable conduct, but we know little about how companies have been prosecuted for Superfund crimes. We utilize content analysis of 2,728 environmental crime prosecutions stemming from U.S. EPA criminal investigations from 1983-2021, and select cases of companies prosecuted for Superfund crimes. We found that across 41 prosecutions, 126 defendants were prosecuted, resulting in 68 years of probation …

The Exoskeleton Of Environmental Law: Why The Breadth, Depth And Longevity Of Environmental Law Matters For Judicial Review, Sanne H. Knudsen

Articles

Environmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace self-restraint for self-preservation.

Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law 's many statutory texts, one can start to appreciate environmental law 's indispensable role in society: it serves as an enduring "exoskeleton," a sort of protective armor created over …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Testimony, Free Speech Under Attack: The Legal Assault On Environmental Activists And The First Amendment, Anita Ramasastry

Presentations

No abstract provided.

Procedural Environmental Justice, Jonathan Skinner-Thompson

Washington Law Review

Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called meaningful involvement in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision- making. Especially in the environmental arena, regulatory decisions are often …

Legal Avenues For Protecting Access To Starry Skies, Alexandra Feathers

Washington Journal of Social & Environmental Justice

In the millennia before the creation and adoption of electric lighting, night skies drenched in stars were the inalienable inheritance of humanity. Electric lighting threatens this birthright by emitting star-blocking light (also known as light pollution) into night skies. Left unaddressed, light pollution will restrict access to dark, starry skies so that many in future generations will only know the stars secondhand. Yet despite the many benefits of dark skies, little scholarship has considered the problem of light pollution limiting the accessibility of starry skies, or how law can address this problem. This Article balances the hope of a future …

Ninth Circuit Muddies The Waters Of Tribal Sovereign Immunity And The Clean Water Act In Deschutes River Alliance V. Portland Ge, Danielle Clifford

Washington Journal of Social & Environmental Justice

Throughout 2011 and 2012, members of the Deschutes River community who fish in the Lower Deschutes River in Oregon noticed a slew of significant changes to their natural environment. The Deschutes River Alliance attributed the changes to the operation of the Pelton Round Butte Hydraulic Project, which is co-owned and operated by Portland General Electric and The Confederated Tribes of the Warm Springs. In July 2016, DRA filed a Clean Water Act lawsuit against them. To rule on the alleged CWA violations, the DRA must first get past the tribal sovereign immunity hurdle. It is long-recognized that American Indian Nations …

Front Matter

Washington Journal of Social & Environmental Justice

No abstract provided.