Category: Environmental Law Review Syndicate

[ELRS] It is Time for Oregon to Define Its Public Trust Duties

By Olivier Jamin, Online Journal 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.

Introduction

The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public. The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources. For example, the New Jersey Supreme Court applied the PTD to beaches and shores, the California Supreme Court applied it to navigable streams and their tributaries, and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens, a position followed by many states. However, the most traditional application of the PTD has been to tidal and submerged lands. Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law. Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979. Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state. The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer, gathering support from local law professors. Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

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[ELRS] Towards a Middle Path: Loss & Damage in the 2015 Paris Agreement

By Maryam Al-Dabbagh, Graduate Editor of the NYU Environmental Law Journal

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

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D. Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

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[ELRS] When a Disaster is Not a “Disaster” and Why That Title Matters for Flint

By Helen Marie Berg, General Member, 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 January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan. City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents. That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.

Governor Snyder’s request was not only for funds, but for President Obama to declare that the crisis in Flint was legally a disaster—a prerequisite for such an allocation of money and for eligibility for certain government programs. The headline of an article in the Detroit News shortly after Snyder’s request read: “Obama gives $80 million to Michigan for Flint.” Though it sounds hopeful, this headline is misleading.

President Obama declared a federal emergency in Flint—but not a disaster. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was enacted “to support State and local governments and their citizens when disasters overwhelm them.” The Act outlines the process to receive a presidential disaster declaration that would activate “an array of Federal programs to assist in the response and recovery effort.” Governor Snyder’s request for such a presidential disaster declaration was denied. He appealed the decision immediately—only for it to be denied again two days later.

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[ELRS] Rising Seas in the Holy City: Preserving Historic Charleston in the Face of Climate Change

By Will Grossenbacher, Editor-in-Chief, Virginia Environmental Law Journal

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

From October 2–5, 2015, the State of South Carolina, and the City of Charleston in particular, experienced historic rains: sites in the Charleston area reported up to twenty-six inches of rain. The downpour combined with high tides to create flooding that closed dozens of streets throughout the City. Then, at the end of October, Charleston experienced the fourth-highest tide ever recorded in the City. Persistent winds combined with the bi-monthly spring tide to create a high tide that reached 8.7 feet above mean lower low water level in Charleston Harbor. The two unrelated events in the same month show just how vulnerable the City is to flooding. When rising sea levels and other climate-change-induced flooding are added to the mix, the flood risk will only increase, especially for the Charleston’s numerous historic properties.

Charleston is a city rich in historic resources. In fact, the City’s Historic District contains more than 1400 “historically significant buildings.” Additionally, of the seventy-seven National Historic Landmarks (“NHLs”) in the State of South Carolina, thirty-three are located in Charleston. While the City of Charleston has begun working to address flooding issues, it has yet to address specific climate-change-related threats to its historic resources. Charleston should therefore look to the example provided by other coastal cities and begin implementing law and policy changes designed at protecting historic resources from the impacts of global climate change.

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[ELRS] Implementing Supplemental Environmental Project Policies to Promote Restorative Justice

By Eric DeBellis, Senior Executive Editor, Ecology Law Quarterly.

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

The overwhelming majority of environmental enforcement actions settle out of court, but overlooking settlements as merely a mechanical means to save time and court costs is a mistake. An agency’s approach to settlement has tremendous environmental justice implications that go largely unnoticed.

In a traditional enforcement settlement model, the government claims the exclusive right to speak for the people. It brings an enforcement action against the defendant, and the two parties negotiate a penalty amount. The defendant signs a settlement agreement and pays the penalty to the Treasury. This is the “Speeding Ticket” settlement model. This model is expedient, but it excludes affected communities. The Speeding Ticket model remains the norm today, but several state and federal agencies have begun to explore an alternative tool: the supplemental environmental projects (SEP).

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Scalia’s Swan Song: The “Irreconcilability Canon” Resolves the Clean Air Act’s Section 111(d) Drafting Error and Encourages Good Lawmaking

By Brenden Cline, Editor-in-Chief, Harvard Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. It is the original post, so please leave any comments or responses here!

[This] is a ‘rare case.’ It is and should be . . . . But every generation or so a case comes along when this Court needs to say enough is enough. — Chief Justice Roberts[1]

As my law school graduation nears, I’d like to advance a common-sense argument for the Clean Power Plan’s statutory authority that only a law student could make: the D.C. Circuit and Supreme Court should reject EPA’s and challengers’ strained readings of the duplicative amendments to Clean Air Act section 111(d) and instead follow the late Justice Scalia’s “irreconcilability canon” to give these amendments no effect. To date, just one brief filed in the torrent of Clean Power Plan litigation mentions the irreconcilability canon in passing.[2] I think this interpretive tool warrants more attention.

So quit the jiggery-pokery, put down the applesauce, and take your head out of a bag. Justice Scalia may no longer be with us, but his immortal words endure.

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[ELRS] Plugging the Regulatory Holes: How to Prevent the Next Aliso Canyon Catastrophe

By Myles Osborne, General Member, 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 late October 2015, the Southern California Gas Company’s Aliso Canyon Natural Gas Storage Facility began spewing natural gas into the air over the San Fernando Valley at a rate of 110,000 pounds per hour. Composed primarily of methane, a “short-lived” climate pollutant with twenty-five times the global warming impact of carbon dioxide, the leak effectively doubled the methane emissions rate for the Los Angeles Basin. With substantial environmental costs and several botched attempts at containment, the leak did not escape comparisons to 2010’s disastrous Deepwater Horizon oil spill as stinking clouds of methane entered the atmosphere, displacing families and businesses in the nearby community of Porter Ranch.

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[ELRS] BioTransport: Moving Wildlife in Response to Climate Change

By Stacy Shelton, Staff Editor, Vermont Journal of Environmental Law. 

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

With millions of gallons of oil gushing into the Gulf of Mexico from a blown-out well in the summer of 2010, the U.S. Fish and Wildlife Service and its partners settled on a Hail Mary plan to save a generation of sea turtles: Translocation. Using specially outfitted FedEx trucks, federal and state biologists moved about 25,000 turtle eggs from Gulf of Mexico beaches to the Kennedy Space Center on Florida’s Atlantic Coast, away from the oil’s path. About half the eggs hatched, and the hatchlings were released into the Atlantic Ocean. In their calculation, the biologists had weighed the risks of reduced hatchling success and interfering with their ability to imprint on natal beaches by moving the turtles against the probability the hatchlings would swim into the oil and certain death if they remained in place.

Today, climate change has biologists working out similar but exponentially more complicated calculations in deciding whether to move species. Instead of simple translocation–which is the human-assisted movement of a species within its historic range—biologists are considering whether the ecological disruptions due to rising temperatures will necessitate moving species outside their historic range as their native habitats become inhospitable. Such assisted movement has been termed “managed relocation,” defined by scientists as the intentional act of moving a species outside its historic range in response to climate change. Similar terms for managed relocation are “assisted migration” and “assisted colonization.” The focus of this paper is on managed relocation and the legal, scientific, and political issues it raises.

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