Environmental Law Commons^™

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 …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Social Cost Of Plastic To The United States, Nancy Lauer, Tibor Vegh, Michelle Nowlin, John Virdin, Jason Somarelli

Faculty Scholarship

No abstract provided.

Applicability Of Multilateral Environmental Agreements During International Armed Conflicts, Beatrice L. Hamilton

Loyola University Chicago Law Journal

Armed conflicts increasingly contribute to environmental damage and climate change, yet, as proven by recent and ongoing conflicts, the legal framework for the protection of the environment under the law of armed conflict (LOAC) fails to effectively mitigate these damages. With rising temperatures, already diminishing resources, the counter-acting of mitigation and adaptation efforts due to warfare and geo-political tensions on the rise, there is a strong case for considering the potential for enhancing the protection of the environment during armed conflicts.

This Article examines the terms of applicability of multilateral environmental agreements (MEAs) during international armed conflicts. The article draws …

Obamacare For Homeowners Insurance: Fixing America's Broken Insurance Markets In A Time Of Climate Change, Daniel Benjamin Schwarcz

Articles

Over the last decade, homeowners insurance markets nationwide have experienced unprecedented instability due to climate change. These disruptions, which are likely to accelerate in the coming years, risk destabilizing real estate markets, triggering financial instability, and undermining the nation’s resilience to climate change. Despite these massive stakes, federal and state reforms to date have largely failed to result in more accessible and affordable homeowners insurance coverage that promotes climate change resilience. This Article offers a new way forward, arguing that today’s troubled homeowners insurance markets resemble the broken, state health insurance markets that pre-dated the 2010 passage of the Affordable …

How Climate Change And Environmental Policies Affect Impoverished Communities, Nicole Skala

Journal of Race, Gender, and Ethnicity

Climate change is a global problem that affects everyone, but not proportionately. Lower income communities face greater physical and economic impacts, and policies often fail to consider their needs. These communities struggle to adapt and recover from disasters due to limited resources, and they lack access to resilient housing. Major corporations like Exxon and Shell profit while their workers are underpaid for dangerous labor. Historically, regions like rural Appalachia have seen exploitation through industries like coal. People of Color (POC) communities experience environmental racism, suffering greater environmental harm due to systemic neglect. Increasing commodity costs can hurt lower income individuals, …

Navigating Wastewater: Minnesota Mining Wastewater Permit Challenges And Evolving Compliance Standards, Madelaine Adamich

Journal of Earth and Life Science

February of 2021 marked the beginning of Minnesota clearly establishing that groundwater qualifies as a Class 1 water in a legal battle involving United States Steel, the Minnesota Pollution Control Agency, WaterLegacy, Fond du Lac Band of Lake Superior Chippewa, the Minnesota Court of Appeals, and eventually the Minnesota Supreme Court (MNSC). Minnesota has a water classification system, as required by the federal Clean Water Act, with 7 classes of use. Class 1 waters are waters used for domestic consumption (MPCA 4, n.d.). According to Minnesota Statute § 7050.0220, the acceptable level for sulfate is 250 mg/L in Class 1 …

The Real Story Of Nepa Litigation In Clean Energy Permitting, Anna Mance

Faculty Journal Articles and Book Chapters

Environmental protections and the processes of the administrative state are under attack. In recent years, the National Environmental Policy Act (NEPA) has drawn outsized criticism from across the political and legal spectrum as a major impediment to climate friendly infrastructure and the clean energy transition. NEPA enables private groups to challenge development through litigation. Critics are moving to strip public oversight over federal permitting based on claims that these private groups bring largely frivolous environmental claims to court, driving up costs for developers and delaying progress responding to climate change. But is this really true?

Drawing on an original dataset …

The Need To Explore The Potential Of Marine Cdr With A One-Earth Strategy: A Guide For Policy-Makers, Philip W. Boyd, Jean-Pierre Gattuso, Minhan Dai, Louis Legendre, Terre Satterfield, Romany M. Webb

Sabin Center for Climate Change Law

Rapid, deep and sustained reductions in carbon dioxide (CO₂) emissions are essential to achieve the goals of the Paris Climate Agreement of keeping the long-term global average surface temperature increase well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C . In addition, the 2021 IPCC Report explains that carbon dioxide removal (CDR) will be needed to offset residual CO₂ emissions from activities and sectors that are difficult to decarbonize by 2050. The objective of CDR is removal of atmospheric CO2 from residual emissions and its durable storage in reservoirs, which is an additional critical element …

Regulation Of Ocean Alkalinity Enhancement In Washington State, Ashwin Murthy, Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

This paper focuses on one commonly-discussed ocean carbon dioxide removal approach, ocean alkalinity enhancement (“OAE”), which involves adding alkaline substances to ocean waters in order to increase their ability to uptake carbon dioxide from the atmosphere. OAE also has the potential to mitigate ocean acidification, which has been worsening globally due to climate change, and has threatened marine life and industries in places like Washington State.

There is significant interest in pursuing OAE off the coast of Washington state. This paper examines the legal framework for OAE projects in Washington State. As we explain, OAE projects conducted in near-shore areas …

West Virginia V. Epa: Considerations For The Future Of Epa Greenhouse Gas Regulation, Shavonnie R. Carthens

Law Faculty Scholarly Articles

When compared to historical levels, the air quality in the United States has improved. However, exposure to air pollution still rises to the top of environmental health risks experienced by Americans. It is estimated that one hundred thousand to two hundred thousand deaths annually are associated with this exposure, which exceeds the deaths from murders and car crashes combined. Further, evidence establishes that “rising concentrations of carbon dioxide, methane, and other greenhouse gases pose serious threats to public health.” Looking to the sources of greenhouse gas emissions, fossil fuel-fired power plants are the largest source of greenhouse gas emissions in …

West Virginia V. Epa: Consideration For The Future Of Epa Greenhouse Gas Regulation, Shavonnie R. Carthens

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

In this article, Shavonnie Carthens examines the implications of West Virginia v. EPA, emphasizing how the Supreme Court’s use of the major questions doctrine creates uncertainty around the Environmental Protection Agency’s (“EPA”) authority to regulate greenhouse gas emissions. It argues that, in light of the doctrine’s growing influence and the end of Chevron deference, Congress should revise the Clean Air Act to explicitly authorize the EPA to regulate greenhouse emissions through system-based transitions to cleaner power-generating sources, public health-conscious considerations, and multi-agency regulatory approaches to ensure durable and effective climate policy.

Pesticide Lies! A Call For Epa Action As Recent Judicial Decisions Reveal The Harmful Truth Resulting From Exposure, Stevi Whitman

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

In this note, Stevi Whitman analyzes the dangers of weak pesticide regulation in the United States. Whitman explains that the EPA’s reliance on the vague “unreasonable adverse effects” standard under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) allows harmful products like Roundup to remain on the market despite strong evidence of health risks. Whitman argues for strengthening U.S. pesticide laws to match the European Union’s stricter safety threshold. She proposes amending FIFRA to require proactive bans on hazardous pesticides and greater accountability from manufacturers to better protect public health and the environment.

Resistance: The Mura Struggle Against Canadian Potash Mining In Brazil’S Amazon, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Federal University Of Rio Grande Do Sul, Graduate Program In Law (Ppgd/Ufrgs), International Human Rights Program (Ihrp), University Of Toronto Jackman Law, Observatory Of Socio-Environmental Law And Human Rights In The Amazon (Odsdh/Ufam)

CLIHHR Reports & Policy Submissions

A comprehensive human rights and environmental report documenting the Mura Indigenous people’s resistance to Brazil Potash’s Autazes Potash Project in the Brazilian Amazon. The report details environmental risks, human rights violations, failures in consultation processes, litigation history, corporate accountability, and the ongoing struggle for land demarcation.

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 …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Into The Legal “Twilight Zone”: State Tenth Amendment Jurisdiction Displacing Climate Supremacy, Steven Ferrey

Lewis & Clark Law Review

The Supremacy Clause of the Constitution notwithstanding, western states have utilized their reserved Tenth Amendment Constitutional authority, upheld by federal circuit courts, arbitrarily to block their adjacent states’ sustainable infrastructure to address climate change. The Biden Administration set in motion a rapid electrification of the entire U.S. economy via three different new laws enacted sequentially in 2021, 2022, and 2023. A re-directed federal executive branch now oversees these programs and laws. This Article analyzes how each of those three laws suffers from a critical omission plaguing this most significant infrastructure program in the last half century—now forecast counter-intuitively by some …

Is Originalism Bullshit?, Michael L. Smith

Lewis & Clark Law Review

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

The Public Trust Doctrine And Lake Abert: Saving Oregon’S Only Salt Lake, Joseph Arzt

Lewis & Clark Law Review

The public trust doctrine creates a relationship between states and their citizens under which the states are entrusted with protecting natural resources for public use. Though Oregon recognizes the public trust doctrine, recent decisions from Oregon’s Supreme Court have displaced and fractured this doctrine, leaving the current legal landscape surrounding the public trust doctrine in disarray. This Note focuses on Lake Abert, Oregon’s only saline lake, which in recent years, due to mismanagement and neglect, has undergone dramatic ecological shifts. By looking at arguments rooted in Oregon’s Constitution, as well as judicial approaches taken in neighboring states, this Note examines …

Adaptation For Whom? Understanding The Impacts Of Dyke Policies On Small-Scale Farmers In Ca Mau Province Of Vietnam, Nguyen Minh Quang, Nguyen Van Minh, Nguyen Vo Chau Ngan, Martha B. Lerski

Publications and Research

Low-lying deltas worldwide are extremely vulnerable to sea-level rise. As the risks of climate-induced flooding become increasingly clear, the thirst for infrastructure-driven adaptation increases. This highlights a patent need to understand the impacts of engineering adaptation solutions, especially those targeting built structures such as dykes and sluices, on farmers from a bottom-up, farmer-centred perspective. The study addresses this call by examining cases where dyke policies, while successful in some dimensions, have undermined small-scale farmer livelihoods in Ca Mau ― Vietnam’s southernmost rural province. It identifies areas in need of attention and adds empirical data related to this group of farmers. …

A Guide To Urban Planning And Environmentalism, Michael Lewyn

Scholarly Works

Review of The Sustainable Urban Design Handbook, by Nico Larco, Kaarin Knudson.