Author: Brenden Cline

[ELRS] What Is Reasonable?: The Consideration of Economic Effects in Reasonable and Prudent Alternatives Under the Endangered Species Act

By Gillian Schroff, Form & Style Editor, Environmental Law, Lewis & Clark Law School

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Although only a few inches in size, the delta smelt (Hypomesus transpacificus) has become a topic of intense debate in water-scarce California. When the United States Fish and Wildlife Service (FWS or Service) determined that these small fish were a threatened species in 2005, the Service invoked the significant protections of § 7 of the Endangered Species Act (ESA) and water agencies that managed the delta smelt’s habit were suddenly precluded from diverting water in ways that could negatively affect the fish.

The rivers that flow into the delta provide water to around two-thirds of Californians and large amounts of farmland. FWS’s determination that the diversions would endanger the delta smelt and were therefore prohibited was criticized as “put[ting] fish above the needs of millions of Californians.” When the cutback in water diversions began, farmers who had depended on the diversions were forced to institute alternative methods, including abandoning fertile land. The problem was exacerbated by the fact that there was no other source of water in the region to irrigate the fields. As of 2010, estimates suggested that there had been $2.2 billion in agricultural losses as a result of the decrease in water diversions.

FWS proposed Reasonable and Prudent Alternatives (RPAs) that would allow the water diversions to continue, but even those required that the diversions to be limited to protect the delta smelt.[7] According to the plaintiffs, this alternative failed to resolve the water supply problems for farmers who had previously relied on water diversions from the agency.[8] As a result, various water agencies and farmers challenged the Service’s decision in the case San Luis and Delta-Mendota Water Authority v. Jewell.[9]

Because of conflicts like those at issue in San Luis, the ESA has been a source of contention, with environmental groups, private parties, and the courts debating the propriety of protecting endangered species at the expense of economic development. On one end of the spectrum, the Supreme Court held in Tennessee Valley Authority v. Hill (TVA)[10] that economic considerations are not relevant to Reasonable and Prudent Alternative (RPA) determinations.[11] Alternatively, the Fourth Circuit has held that economic considerations must be included in the analysis of RPAs.[12] In San Luis the Ninth Circuit adhered to the holding of TVA and held that the consideration of economic effects on private parties was inappropriate for an RPA analysis.[13]

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[ELRS] A Perfect Storm For Michigan’s Renewable Portfolio Standard?

By Sarah Stellberg, Editor-in-Chief, Michigan Journal of Environmental & Administrative Law

Sarah Stellberg is a third-year student at the University of Michigan Law School, where she is Editor-in-Chief of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In his June 7, 2013 opinion in Illinois Commerce Commission v. FERC,[1] Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit inserted two lines of dicta on the constitutionality of Michigan’s Renewable Portfolio Standard, or Public Act 295 (PA 295).[2] By discriminating in favor of in-state renewable energy, he opined that Michigan’s law “trips over an insurmountable constitutional objection. Michigan cannot, without violating the Commerce Clause of Article 1 of the Constitution, discriminate against out-of-state renewable energy.”[3] The opinion will have little precedential value—it was not necessary for the holding, not fully briefed by the parties, and not binding on the Sixth Circuit. Nonetheless, the statement sent a ripple through the energy community, casting doubt upon Michigan’s law and the many similar Renewable Portfolio Standards with preferences for homegrown renewables. Twelve of these laws have already faced lawsuits alleging out-of-state discrimination,[4] and Judge Posner’s statement may be a harbinger of things to come in Michigan.

Two years later and several hundred miles away in the state capitol, Michigan legislators began launching their own attack on PA 295. After the RPS targets are met this year, there is no legal mandate for utilities to further increase their share of renewable generation. Republican legislators have introduced a bill that would repeal the renewable portfolio standard altogether.[5] Meanwhile, the Democratic proposal would increase the RPS to 20 percent by 2022.[6]

These efforts to rewrite Michigan’s comprehensive energy policy could spell trouble for the future of the Renewable Portfolio Standard. Yet with complete repeal unlikely, perhaps clean energy advocates should welcome the bills rattling around in Lansing. This legislative debate provides the perfect opportunity to rewrite PA 295 to fend off the constitutional challenge foretold in Judge Posner’s opinion.

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[ELRS] A Leading Cause of Everything: One Industry That Is Destroying Our Planet and Our Ability to Thrive on It

By Christopher Hyner, Managing Editor—Georgetown Environmental Law Review

Christopher Hyner is a 3L at Georgetown University Law Center, where he is a Managing Editor for the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Climate change. Ocean dead zones. Fisheries depletion. Species extinction. Deforestation. World hunger. Food safety. Heart disease. Obesity. Diabetes. The list goes on. There is one issue at the heart of all these global problems that is too often overlooked by private individuals and policy makers alike—our demand for and reliance on animal products. We can take a substantial step towards addressing all these problems simultaneously through reducing or eliminating our reliance on meat and dairy products. This begs the question — what are the United States’ major governmental environmental policy enforcers doing to address animal agriculture’s contribution to climate change, if anything? This piece briefly highlights two things: (1) animal agriculture is a leading cause of many major environmental problems we face globally and domestically—most importantly, climate change; and (2) animal agriculture is too often left out of the policy discussion.

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Welcome HLS Transfer Students!

Congratulations on transferring to Harvard Law School! We have begun receiving emails from transfer students asking how to get involved with the Harvard Environmental Law Review, so it must be that time of year again. Here is a quick overview of what HELR has to offer and how you can get involved:


HELR is the number-one environmental law journal in the country, staffed completely by HLS students. We publish once per semester on a broad range of topics related to environmental law, including administrative law, climate change, food law and policy, land use, air, toxic substances control, water, energy, natural resources, and environmental justice. HELR Staff manage all aspects of the publication process, from reviewing submissions to preparing articles for publication. In their work for HELR, students gain exposure to cutting-edge scholarship, develop technical editing skills, and take on leadership roles. In addition, Staff enjoy unrivaled writing opportunities: each HELR issue features student comments on recent important cases and longer student notes. Staff may also publish shorter pieces on the HELR online journal and blog. Finally, HELR members connect with a deep community that begins at HLS and spans the global legal profession. Staff enjoy happy hours, potlucks, discussion groups, and unparalleled access to Harvard’s preeminent environmental and food law faculty.


There are many opportunities to get involved with HELR, both as an editor and an author. To begin, we hope you’ll join our staff as a SubciterLine Editor, or Technical Editor this Fall. In addition to a staff position, interested students can (1) join our Submissions Board and review incoming pieces or (2) author HELR blog posts.

We encourage new transfer students to sign up for a position on the journal this coming semester and email us at hlselr [at] to be added to our listserv. If you are interested in being a Technical Editor, please include information about your prior journal experience or, if you have none, your relevant classes, clinics, or other experience. We are always happy to field questions about classes, clinics, jobs, or anything else before you get to campus, and we look forward to meeting you in September!


The Volume 40 HELR Board

Brenden Cline & Rachel Kenigsberg

Daniel Carpenter-Gold, Olivia Bensinger, & Robin Smith
Managing Editors