Environmental Law Commons^™

Comments Submitted In Response To Request For Information To Inform Interagency Working Group On Mining Regulations, Laws, And Permitting, Robert B. Keiter, Jamie Pleune, Heather Tanana, Brigham Daniels, Tim Duane, Elisabeth Parker

Utah Law Faculty Scholarship

On March 31, 2022, the Department of Interior announced the formation of an interagency working group to develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and invited public comment to help inform the efforts of the working group. The Request for Information sought, among other things, recommendations on “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.” Members of the Wallace Stegner Center of Land Resources and the Environment, at the S.J. Quinney College of Law, University of Utah submitted comments based on their shared expertise in mining law, …

Protecting Tribal Public Health From Climate Change Impacts, Heather Tanana

Utah Law Faculty Scholarship

The COVID-19 pandemic brought national attention to challenges that tribal communities have been facing for decades, such as limited health services and lack of water access. Although the end to the pandemic seems to be in sight, climate change will continue to threaten the public health and survival of tribal communities. Since time immemorial, Native Americans have recognized the sanctity of water. Water is life. However, climate change impacts are shifting the landscape across the country and many tribes lack the necessary infrastructure to protect their communities. For example, located in the Southwest, approximately 30-40 percent of homes on the …

Energy Grid Decarbonization: A Tale Of Resistance And Compliance In Florida, Rachel Tennant

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Evaluating Climate Risk In Nepa Reviews: Current Practices And Recommendations For Reform, Romany M. Webb, Michael Panfil, Stephanie H. Jones, Dena Adler

Sabin Center for Climate Change Law

In recent years, policymakers, practitioners, and scholars have increasingly considered how climate change should factor into existing environmental review obligations, including review of U.S. federal agency actions under the 1969 National Environmental Policy Act (“NEPA”). Attention thus far has focused primarily on the critical question of how to account for an action’s contribution to climate change via direct, indirect, or cumulative greenhouse gas emissions. However, less focus has been given to the equally critical question of how actions will be affected by, and can prepare for, the impacts of climate change. This paper combines an extensive review of previously conducted …

Wasting Water: Why The Supreme Court Should Consider Climate Change When Appointing Water Rights Between States, Matthew Hayes

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Putting The Fire Out: An Analytical Analysis Into The Bureau Of Land Management’S New Protest Petition Law, Lyndsey Antos

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Spirit Of The Law In The Anthropocene: A Massachusetts V. Environmental Protection Agency Casenote, Victoria Depalma

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Fixing The Holes In The Endangered Species Act, Alison Adkins

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Agricultural Best Management Practices And A National Treasure: The Florida Experience, Silvia Alderman

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Importance Of The Clean Water Act And Current Attacks On Its Layers Of Oversight And Effectiveness Under Sections 401 And 404, C. Scott Kunde

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Attack Of The Invasive Carp: Why Asian Carp Are Devastating To Kentucky And What The Commonwealth Can Do To Fight Against Them, Nick Cacopardo

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Whiskey Business: The Environmental Hazards Of The Bourbon Industry And Proposed Regulatory Solutions, Zachary D. Mills

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Buffering Streams: Incentivizing Riparian Buffers In The Bluegrass, Harrison J.B. Chittenden

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Rethinking Reforestation: Sustainable And Economic Management Of Kentucky’S Forests, Braydan Roark

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Promise And Peril Of Paternalistic Approaches To Flood Risk, Alexander B. Lemann

University of Colorado Law Review

Our country's ever-growing exposure to flood risk has been the target of policy reform for decades. To many experts, it is clear that we must stop subsidizing flood-prone development and begin the process of moving people away from flood-prone areas. And yet, despite the seemingly obvious benefits of abandoning areas that will be permanently underwater in a generation, flood-prone living has been a difficult habit to kick.

Examining the problem against the background of the philosophical literature on paternalism helps show why. Paternalism- government intervention in people's choices for the good of those same people-has long been controversial. The insistence …

Waste And The Governance Of Private And Public Property, Tara K. Righetti, Joseph A. Schremmer

University of Colorado Law Review

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

Fig Leaves, Pipe Dreams, And Myopia: Too-Easy Solutions In Environmental Law, Albert C. Lin

University of Colorado Law Review

Much of environmental law and policy rests on an unspoken premise that accomplishing environmental goals may not require addressing the root causes of environmental problems. For example, rather than regulating risks directly, society may adopt warnings that merely avoid risk, and rather than limiting plastic use and reducing plastic waste, society may adopt recycling programs. Such approaches may be well-intended and come at a relatively low economic or political cost. However, they often prove ineffective, or even harmful, and they may mislead society into believing that further responses are unnecessary.

This Article proposes the concept of "too-easy solutions" to describe …

Using Adaptive Governance To Protect Oregon’S Water Resources, Lauren Butz

Lewis & Clark Law Review

Over 30 years ago, Oregon adopted the innovative In-Stream Water Rights Act, which introduced new regulatory tools and incentives for encouraging efficient water consumption, and paved the way for the emergence of water trusts. However, Oregon’s water resources are under increasing strain as the state faces the challenges of over-appropriation and climate change. New solutions are needed to augment the existing regulatory framework. This Comment draws on the principles of adaptive governance and ecological resilience to formulate possible legal solutions to help the state adapt to increasing demands for water, proposing that Oregon leverage corporate social responsibility to encourage investments …

Reconciling Agricultural Production And Property Rights With The Use Of Dicamba Herbicides, Terence J. Centner

Lewis & Clark Law Review

The production of food and fiber by our nation’s farmers is often dependent on using herbicides to control weed growth that can reduce crop yields. After several decades of herbicide usage, some weed species developed resistance to glyphosate and were decreasing yields. Seed and pesticide manufacturers responded to weed resistance by developing genetically engineered soybean and cotton seeds and specially formulated over-the-top (OTT) dicamba products. Commencing in 2017, OTT dicamba products were used to successfully kill glyphosate-resistant weeds. However, dicamba is a volatile herbicide, and applications of the new OTT products were accompanied by spray drift and volatilization that injured …

Protecting The Sublette Antelope Migration: An Analysis Of The Evolution Of The Legal Tools Employed To Protect The Sublette Antelope Herd From Fencing Obstructions, Colin Reynolds

Lewis & Clark Law Review

A biological marvel of the natural world, each year a small herd of pronghorn antelope—called the Sublette herd—migrate over 300 miles through a mix of public and private land in Wyoming. The Sublette herd’s annual movement constitutes one of the largest remaining “big game” migrations within the continental United States. Unfortunately, this migration faces an increasing number of obstacles threatening its long-term viability; chief among them being fencing obstacles. This Comment examines the evolution of the legal tools the federal government, the state of Wyoming, and everyday citizens can use to protect the Sublette herd’s migration.

Global Climate Governance In 3d: Mainstreaming Geoengineering Within A Unified Framework, Gabriel Weil

Scholarly Works

The failure of conventional climate change mitigation to reduce climate-related risks to tolerable levels has spurred interest in more unconventional—and riskier—climate interventions. What currently sounds like science fiction could become a reality in the not-so-distant future: planes blasting particles into the sky to block the sun, vast deserts covered with mirrors, algae sucking carbon into the depths of the ocean. Scholars tend to lump all these unconventional climate measures together in a fuzzy category called “geoengineering,” and set them apart from conventional climate change mitigation. But the characteristics of climate interferences vary across three distinct dimensions, which the mitigation-geoengineering dichotomy …

Evaporating Into Thin Air: The Prosecution Of Air Pollution Crimes During The Trump Administration, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 …

Un-Repeal: Reviving The Arms Control Impact Statements, David A. Koplow

Michigan Journal of Environmental & Administrative Law

From the late 1970s into the early 1990s, U.S. federal law mandated the executive branch to prepare annual analytical documents known as Arms Control Impact Statements (ACIS). These instruments – obviously patterned after the Environmental Impact Statements (EIS), which had been inaugurated only a few years previously – were intended to prod the national security community to undertake more rigorous, multi-dimensional study of major weapons programs, and to provide Congress and the American public with enhanced, timely information about key arms procurement decisions.

However, unlike the EIS process – which rapidly became institutionalized, and which has proliferated to multiple tiers …

Removing The State Opt-Out For Demand Response, Ben Carroll

Michigan Journal of Environmental & Administrative Law

In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line.

In 2011, …

The Public Trust And The Chicago Lakefront: Review Of Kearney & Merrill’S Lakefront: Public Trust And Private Rights In Chicago (Cornell U. Press, 2021), Michael C. Blumm

Michigan Journal of Environmental & Administrative Law

Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have …

Significant Impacts Under Nepa: The Social Cost Of Greenhouse Gases As A Tool To Mitigate Climate Change, Sydney Hofferth

Michigan Journal of Environmental & Administrative Law

The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement …

What Will The “Foreseeable Future” Bring For Climate- Imperiled Species?, Olivia Bauer

Indiana Law Journal

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the …

Groundwater Exceptionalism: The Disconnect Between Law And Science, Christine A. Klein

UF Law Faculty Publications

Most judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and …

Information As Power: Democratizing Environmental Data, Annie Brett

UF Law Faculty Publications

Environmental data systems have largely escaped scrutiny in the past decades. But these systems are the foundations for evaluating environmental priorities, making management decisions, and deciding which perspectives to value. Information is the foundation of effective regulation. The decisions regulators make about gathering, assimilating, and sharing information are, in many cases, determinative of the outcomes they reach. This is certainly true in the case of the environment.

This paper looks at how current environmental regulation has created data systems that undermine scientific legitimacy and systematically prevent stakeholder participation in environmental decision-making. These data systems concentrate power within federal and state …

The Sec's Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

Articles

Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …