Natural Resources 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 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 …

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.

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

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 …

Climate Nationalism, Gabriel Weil

Scholarly Works

Climate change is a global commons problem. The costs of emissions in any given country are mostly borne by foreigners. Absent strong measures to overcome this dynamic, pursuit of national self-interest will lead people and countries to underinvest in decarbonization, relative to what's best for the world as a whole. And we do see such underinvestment. Many countries are not on track to meet their Paris Agreement pledges, and those pledges, even if met, are not ambitious enough to meet the headline temperature stabilization goals of the agreement. This is the fairly banal pursuit of national interest in the climate …

Litigating Predator Management, John A. Erwin

UF Law Faculty Publications

Despite significant gains over the last half-century, predators such as mountain lions, wolves, and bears are in the crosshairs once again. Scientific management, democratic principles, and the holding of wildlife resources in trust for the public are all foundational pillars of the North American Model for Wildlife Conservation, yet state wildlife agencies and legislatures routinely fail to uphold these values where predators are concerned. Many of these tensions were thrust into the public consciousness in 2020 when gray wolves were temporarily delisted under the Endangered Species Act (ESA), resulting in a disastrous wolf hunting season in Wisconsin. States that have …

The Hunger Games: Food As A Right, Not A Privilege, Camesha F. Little

FIU Law Review

Despite the United Nations' explicit declaration that all humans have a right to food, food insecurity and hunger remain persistent problems in the United States and around the globe. The dystopian landscapes depicted in novels such as The Hunger Games and Parable of the Sower—societies crippled by poverty, oppression, and pervasive starvation—resonate with sobering contemporary realities. This Article examines existing food laws, food rights, and the current protections safeguarding the United States food supply from a humanitarian perspective. Ultimately, this Article argues that the human right to food must expand to encompass a right to healthy or natural food, and …

The Effectiveness Of The Minnesota Buffer Law And Its Impacts On People, Ellen P. Isakson

Journal of Earth and Life Science

In January 2015, the then-governor of Minnesota Mark Dayton announced new legislation that would require 50-foot vegetation buffers along all waterways in Minnesota; this legislation would come to be known as the Minnesota buffer law, exact requirements being “perennial vegetative buffers of up to 50 feet along lakes, rivers, and streams and buffers of 16.5 feet along ditches” (Albert, 2017; MN Board of Water and Soil Resources [MN BWSR] 4 ). A buffer in the context of vegetation and natural resource management is a strip of vegetation around a body of water “designed to intercept stormwater runoff and minimize soil …

An Introduction To U.S. Groundwater Law: Domestic And Transboundary Considerations, Caleb Cook, Gabriel Eckstein

Faculty Scholarship

In light of the scientific and historical factors that have shaped the development of groundwater law and policy, this chapter seeks to provide a primarily descriptive account of its current state in the United States and to lay a foundation for future efforts to address gaps in the regime. Section 8B.02 considers the importance of groundwater in modern American society, with a particular focus on its uses and the threats these resources face. Section 8B.03 describes the U.S. framework for the domestic governance of groundwater resources. Section 8B.04 describes the mechanisms for transboundary governance of groundwater between the United States …

The Legal Debate: Corner Crossing And Public Land Access, Kaden Leverenz

Undergraduate Theses, Professional Papers, and Capstone Artifacts

Is it legal to cross from one corner of public land to an adjacent corner of public land across checkerboarded landscapes in the American West? This question regarding corner crossing has become one of the most prominent and unresolved issues in public land access. Although federal courts in Iron Bar Holdings v. Cape (2025) confirmed corner crossing, without touching or damaging private land, does not constitute trespass, the legal landscape still remains unsettled. Public land users play a significant role in shaping the direction of this issue, as demonstrated by past public mobilizations against large-scale land sell-offs. Therefore, this paper …

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

Supplements To Environmental Impact Statements: Implementation Of The Standards Set By The Council On Environmental Quality, Dale Lynn Gavin

Maine Law Review

Environmental impact statements (EISs) are prepared before any major federal project is undertaken, as required by the National Environmental Policy Act (NEPA). An original EIS may become obsolete if a Project's operation later changes in any significant way, or if previously unsuspected environmental impacts are later discovered. When either of these two events occurs, compliance with NEPA demands that a supplemental EIS be prepared to focus on the changes. The decision whether a supplement is required in any particular situation is guided by standards set by the Council on Environmental Quality (CEQ). In addition, some federal agencies have promulgated their …

Corner Post V. Board Of Governors Of Federal Reserve System, Alexis Karbowicz

Public Land & Resources Law Review

Corner Post v. Board of Governors of the Federal Reserve System resolved a circuit split on when claims against the federal government “accrue” under 28 U.S.C.A. § 2401(a). The Supreme Court clarified whether plaintiffs must file challenges within six years of a regulation’s enactment or may wait until they are directly affected by an agency action, even if that occurs years later. Examining the case’s factual and procedural background provides insight into the relevant regulatory context. The Court’s analysis offers a detailed interpretation of statutory language and establishes principles of claim accrual, alongside the policy considerations of regulatory finality and …

The Biopiracy Of Traditional Knowledge In United States Patent Law, Hannah Green

Public Land & Resources Law Review

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on …