Category: Article

Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review

By Travis O. Brandon

Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through a notice-and-comment procedure in the section 7 consultation process creates a chain of structural asymmetries that predictably skew section 7 decisions in favor of regulated parties and against environmental interests. Because of these structural asymmetries, section 7 is the only provision of the ESA where the “availability” of the “best available science” is an essential evidentiary issue. Examining several recent significant section 7 cases, this Article shows that courts have failed to grapple with the structural differences between section 7 and other parts of the ESA, leading to an inconsistent and improper application of the “best available science” standard in section 7. This Article argues that in order to address the structural asymmetries in the section 7 process, courts should be less deferential toward agency scientific analysis in section 7 decisions, and should be more willing to admit extra-record scientific evidence to challenge the adequacy of agency scientific decisions. Finally, the Article argues in favor of introducing a notice-and-comment procedure in a subset of significant section 7 decisions.

Cite as: Travis O. Brandon, Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review, 39 Harv. Envtl. L. Rev. 311 (2015).

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Foreign Impacts and Climate Change

By Arden Rowell

U.S. administrative agencies now routinely base domestic regulatory decisions upon the expected global impacts of carbon dioxide emissions. This is a startling divergence from traditional regulatory practice, which had been to entirely exclude foreign impacts from domestic regulatory analysis. Even more strikingly, this significant shift in valuation practice has occurred with virtually no legal analysis as to when or whether agencies have the statutory authority to consider foreign impacts. As a result, a number of recent rules proposed on the basis of a globally scoped Social Cost of Carbon (“SCC”) are now vulnerable to legal challenge. To insulate future rules against such challenges, agencies should adopt the globally scoped SCC only where they have performed individualized, statute-specific analyses of their own authority to incorporate foreign impacts into their decisions.

Cite as: Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Envtl. L. Rev. 371 (2015).

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Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause

By Jeffrey M. Schmitt

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their businesses. In these cases, the litigants and federal courts have struggled to formulate a coherent account of the doctrine, thus throwing California’s progressive legislation into doubt.

This Article proposes a new test based on existing lower court precedent to clarify the extraterritoriality doctrine. Under this proposal, a state’s regulation of in-state conduct would violate the extraterritoriality principle only when it: (1) inescapably has the practical effect of regulating conduct beyond the state’s borders; and (2) such regulated extraterritorial conduct lacks a corresponding in-state interest. Not only is this test supported by existing precedent, but it would also best serve the policy justification for the extraterritoriality doctrine by properly allocating state power in our federal system. Applying this proposed test to California’s legislation would provide a clear and coherent way to uphold California’s attempt to reduce the carbon emissions caused by Californians and to eliminate California’s role in cruelty to farm animals.

Cite as: Jeffrey M. Schmitt, Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause, 39 Harv. Envtl. L. Rev. 423 (2015).

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Non-Transmission Alternatives

By Shelley Welton

This Article examines the reasons that “non-transmission alternatives”—including energy efficiency, energy storage, demand response, and distributed generation—have played a very limited role in meeting electricity grid constraints, despite their great potential. It argues that the predominant reasons for this failure lie in structural flaws in transmission planning in the United States, caused in part by questions over how far the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) extends when it comes to these “non-transmission” resources. FERC has declared achieving “comparable consideration” for non-transmission alternatives to be an Agency goal, but has limited the extent of its reforms to opening up the planning process to stakeholders. It has enacted these limited participatory reforms knowing that transmission planning is carried out by entities with expertise biases and financial incentives to build transmission, such that stakeholder participation is an unlikely remedy for the problem. This Article illustrates why participatory reforms alone are likely to fail non-transmission alternatives, and then explores the jurisdictional limitations holding FERC back from creating transmission planning processes that fully and fairly incorporate non-transmission alternatives. In addition to suggesting ways that FERC can improve planning processes within its jurisdiction, this Article argues that the Commission does a disservice to the regulatory dialogue that occurs among Congress, the Agency, states, and stakeholders when it claims to have accomplished an objective that its reforms will do little to achieve in practice. It closes by suggesting that FERC might be more honest about the shortcomings of its reforms in order to inform inter-branch and state-federal conversations about options for progress on non-transmission alternatives.

Cite as: Shelley Welton, Non-Transmission Alternatives, 39 Harv. Envtl. L. Rev. 457 (2015).

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The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?

By David A. Wirth

The perception of the United States as a laggard or malingerer on climate change is widespread. The current reality, however, is largely underappreciated and considerably more nuanced, both in terms of the substance of U.S. domestic action and its engagement with international processes. Unusual if not unique attributes of the United States’ domestic political, legal, and constitutional structure have come together on the climate issue in a revealing manner—one that thrusts into sharp relief the United States’ difficulties in managing foreign affairs while maintaining the domestic rule of law on heavily regulatory issues such as the environment.

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States becoming a party to an agreement containing binding emission-reduction (mitigation) commitments adopted at the 21st Conference of the Parties to the U.N. Framework Convention on Climate Change, to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, portions of the President’s Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with Congress either before or after its conclusion.

In making this argument, the Article disaggregates U.S. international and domestic climate policy as it has developed to the present from a structural point of view. Among the subjects analyzed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement; (3) options available under existing legislation, both those that have already been put in place and those in the process of implementation; (4) the extent, if any, of the need for additional legislation, and the international and domestic implications of the absence of additional legislative authority; and (5) the role of the courts.

Cite as: David A. Wirth, The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?, 39 Harv. Envtl. L. Rev. 515 (2015).

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Environmental Settlements and Administrative Law

By Courtney R. McVean and Justin R. Pidot

The Obama Administration has come under increasing fire for its decisions to settle lawsuits brought by environmental organizations. Industry groups and Republican politicians claim that such settlements, negotiated behind “closed doors,” unfairly exclude regulated entities from regulatory decisionmaking that tangibly affects economic interests. Environmental organizations and their political allies made similar complaints during the Administration of George W. Bush, arguing that the federal government at that time settled lawsuits on terms overly favorable to economic interests and without the participation of environmentalists or the public.

Objections to environmental settlements are often expressed as process concerns. Opponents of an administration’s political direction argue that settlements allow agencies to make policy choices from the shadows while evading, or perhaps even violating, the process established by the Administrative Procedure Act, including the Act’s public participation requirement. This Article is the first to objectively assess those concerns, and it reveals that environmental settlements rarely circumvent norms of administrative law, and that when they do so, courts can—and do—intervene.

To establish that environmental settlements are consonant with administrative law, this Article develops a novel typology of settlements based on the types of obligations they impose on federal agencies. Settlements can involve agency commitment to resource allocation, procedural obligation, or substantive rule. The Article then considers unique aspects of those categories of commitment and explains why none are generally problematic from the perspective of administrative law. Many decisions made in settlements are of a type excluded from notice-and-comment rulemaking. Others involve preliminary matters that are subject to subsequent judicial challenge once the agency has reached a final decision. And others still involve opportunities for public notice and comment. In the rare circumstance where a settlement violates otherwise-applicable notice-and-comment requirements, courts already possess ample authority to either decline to enter the settlement beforehand or to vacate the settlement afterward. Administrative law demands no more.

Environmental settlements have distinct advantages because they provide federal agencies with the opportunity to control litigation risk and overcome bureaucratic inertia. In the absence of a compelling justification for limiting the discretion of agencies to enter into settlements, Congress and the public should allow environmental settlement practices to persist.

Cite as: Courtney R. McVean & Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191 (2015).

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Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas

By Jaclyn Lopez

Coastal areas in the United States are already experiencing the effects of sea-level rise, and the best available science predicts significant additional sea-level rise this century. In addition to sea-level rise, storm intensity and storm surge are also increasing. In some coastal areas, continuing population growth is compounding the threats of climate change and sea-level rise.

At the same time, one in six of the federally listed endangered and threatened species in the United States is threatened by sea-level rise. Coastal species face displacement, extirpation, and even extinction due to loss of habitat. They are at risk of being trapped between rising sea levels and human development. This threat is exacerbated by unyielding human-made coastal fortifications. This coalescence of factors leads to the phenomenon known as “coastal squeeze”—the loss of transitional habitat between land and sea.

For coastal areas this means that some of the most imperiled species will be pushed closer to the brink of extinction. “Assisted migration” refers to one policy prescription to address this problem. The federal government, through the U.S. Fish and Wildlife Service, has the authority—and responsibility—to consider active and passive assisted migration under the Endangered Species Act in managing species threatened with habitat loss due to sea-level rise. The federally protected Florida panther, loggerhead sea turtle, Key tree-cactus, and Lower Keys marsh rabbit inhabit critically imperiled habitat in south Florida and are analyzed to examine this issue from the perspective of species from differing taxa, habitat types, and natural histories. This Article concludes that assisted migration, coupled with preserve and corridor protection and dramatic reductions in greenhouse gas emissions, are necessary for the conservation of imperiled species threatened with sea-level rise.

Cite as: Jaclyn Lopez, Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157 (2015).

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Fracking, Federalism, and Private Governance

By Amanda C. Leiter

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks and propose regulations for drilling on federal land. States have moved faster to address natural gas risks, but with little consistency or transparency.

Numerous private organizations are stepping into the resulting governance gaps with information-gathering and standards-setting efforts. As this Article documents, these private organizations are performing the functions once assigned to states in so-called “laboratory federalism”: developing innovative governance approaches and— perhaps more importantly—catalyzing the horizontal and vertical diffusion of successful governance strategies. In some cases, the likely outcome is a public governance regime with private origins; in others, private entities are likely to continue to play a role even as public entities enter the frame, creating a hybrid regime. Both outcomes highlight the need for process reforms to increase private entities’ openness, balance, and accountability. Familiar administrative procedures followed by public agencies offer one model for such reforms, but at least in the natural gas context, those procedures may be less effective for private entities than for the public agencies for which they were designed.

Cite as: Amanda C. Leiter, Fracking, Federalism, and Private Governance, 39 Harv. Envtl. L. Rev. 107 (2015).

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