Category: Student Note

Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law

By Daniel Carpenter-Gold

It has long been a truism that China’s environmental legislation is plentiful and powerful, but only unevenly enforced. Given China’s reputation as an authoritarian state with immense capacity to regulate its citizens, this is counter-intuitive. To understand the latest environmental legislation in China, we must make sense of this seeming paradox. The lack of enforcement is a product of a governance structure that entrusts local governments with substantial power over the local environmental protection organs and local courts, incentivizing short-term economic development at the cost of environmental protection. Public-interest litigation can help to mitigate this problem because China’s new Environmental Protection Law encourages action by citizens, who are directly affected by pollution and therefore difficult to coopt. However, litigation cannot guarantee regulation without a stronger judiciary. This reality suggests that the national government might instead intend environmental suits to serve as a monitoring, rather than a regulatory, mechanism.

Cite as: Daniel Carpenter-Gold, Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law, 39 Harv. Envtl. L. Rev. 241 (2015).

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Mapping Fracking: An Analysis of Law, Power, and Regional Distribution in the United States

By Benjamin E. Apple

This Note posits a framework with which to analyze U.S. fracking development at local and regional scales. It aims to illuminate the ways in which three legal regimes — private rights, public government regulation, and local government law — influence the interactive dynamics between local and regional actors, which in turn determine the distribution of fracking impacts across a regional mosaic of municipalities. Deploying this framework, the Note first concludes that law and economic-based disparities in bargaining power across municipalities should result in unequal exposure to fracking development and its suite of consequences, both beneficial and detrimental. It then sketches the substantive motivations, powers, and stakes of the most common actors in fracking development. Finally, it analyzes the stakes of a pending Pennsylvania Supreme Court case, Robinson Township v. Commonwealth, regarding the scope of municipal power to regulate fracking development.

Cite as: Benjamin E. Apple, Mapping Fracking: An Analysis of Law, Power, and Regional Distribution in the United States, 38 Harv. Envtl. L. Rev. 217 (2014).

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Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?

By David Baake

Since the New Deal era, the Supreme Court has interpreted the Spending Clause to permit Congress to use conditional grants to encourage state governments to take action that Congress could not require them to take. In National Federation of Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power, holding for the first time ever that a conditional grant was unconstitutionally coercive because the amount of money at stake was so large that the states had no real choice but to comply with the attached conditions. This remarkable development in Spending Clause jurisprudence will likely embolden states to challenge the constitutionality of a wide variety of statutes, including Section 179(b)(1) (“Section 179”) of the Clean Air Act, which empowers the Environmental Protection Agency to prohibit, with limited exceptions, the distribution of federal highway money to states that fail to submit adequate State Implementation Plans (SIPs).

In this article, I assess the likelihood that a Spending Clause challenge to Section 179 would succeed, post-Sebelius. In Part I of this Article, I briefly discuss the Sebelius Court’s Spending Clause holding. In Part II, I argue that Section 179 should survive a facial constitutional challenge after Sebelius because, at least where applied to SIP plans for pollutants emitted by mobile sources, the provision can be construed as an attempt to restrict the use of federal funds to projects that advance the general welfare, rather than as an attempt to coerce the states into adopting particular policies. Finally, in Part III, I argue that Section 179 should survive an as-applied constitutional challenge, even if it is applied to SIP plans for pollutants that are not emitted by mobile sources. I argue that the decision to enact a SIP “remains the prerogative of the States not merely in theory but in fact,” because (1) a state that does not wish to promulgate a SIP can petition EPA to promulgate a Federal Implementation Plan (FIP) and thereby halt the sanctions clock; and (2) the amount of money at stake will likely be significantly less than the amount at stake in Sebelius.

Cite as: David Baake, Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?, 37 Harv. Envtl. L. Rev. F. 1 (2012).

 

Debt, Nature, and Indigenous Rights: Twenty-five Years of Debt-for-Nature Evolution

By Jared E. Knicley

Debt-for-nature swaps are an innovative and potentially powerful mechanism for addressing the significant issues of indebtedness and environmental degradation in the developing world. Over the past twenty-five years, debt-for-nature swaps have evolved across many dimensions to their present-day typology of bilateral fund-generators that capitalize projects fairly describable as both “environmental” and “developmental.” Through a study of four representative debt-for-nature swaps, this Article analyzes the original conception of the debt-for-nature swap and the evolution of swap typologies as they relate to the conception and realization of indigenous rights. It further argues that while the trend in debt-for-nature swaps has been the increased participation of indigenous groups, the actual level of participation envisioned under debt-for-nature statutes is ambiguous and, thus, the level of protection of indigenous rights varies from swap to swap. The Article concludes by providing several procedural recommendations for improving the realization of indigenous rights under debt-for-nature swaps and by critically analyzing the potential evolutionary trajectory of debt-for-nature swaps with regard to impacts on indigenous rights.

Cite as: Jared E. Knicley, Debt, Nature, and Indigenous Rights: Twenty-five Years of Debt-for-Nature Evolution, 36 Harv. Envtl. L. Rev. 79 (2012).

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Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies

By Daniel Mach

Historically, the law governing injunctive relief for violations of the National Environmental Policy Act of 1970 has been informed both by interpretation of the statute’s environmental purpose and by policies associated with the administrative law framework through which NEPA is implemented. The resulting case law reflects tensions between general legal canons and the fact-bound, equitable nature of trial courts’ injunction orders. This Note argues that the Supreme Court’s recent decisions addressing NEPA remedies do not effectively resolve those tensions. Through a case study of Monsanto v. Geertson Seed Farms, this Note argues that the Court’s development of rigid rules of equity for NEPA injunction decisions threatens to divorce those trial-level decisions from relevant legal, institutional, and factual considerations. For this reason, further efforts to circumscribe rules for NEPA injunctions by formalizing principles of equity ought to take into account that tradition’s most central tenet, that equity “eschews mechanical rules” and “depends on flexibility.” Specifically, an effective law of NEPA remedies will require a workable balance of statutory interpretation, administrative law policy, and deference to trial courts’ equitable discretion.

Cite as: Daniel Mach, Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies, 35 Harv. Envtl. L. Rev. 205 (2011).

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