We are pleased to present our online readership with Issue 2 of the 39th Volume of the Harvard Environmental Law Review.
The latest issue of ELR begins with a detailed examination of the interagency consultation process under the Endangered Species Act, which empowers the Fish and Wildlife Service and the National Marine Fisheries Service to review other federal agencies’ decisions to ensure they will not jeopardize endangered species. As Prof. Travis Brandon explains, the lack of public comment in interagency consultations means that the Services are likely to get a skewed view of the potential harm created by federal agency action, a fact which courts should take into account when reviewing their decisions under the ESA.
39.2 also includes several articles analyzing legal issues surrounding climate-change policy, just in time for the UNFCCC negotiations in Paris this December. Prof. Arden Rowell describes the rise of regulatory analyses which justify agency regulation by referencing the global cost of carbon emissions, rather than limiting themselves to domestic considerations. As California continues to pass first-of-its-kind legislation intended to internalize the cost of carbon emissions in fuel production, Prof. Jeffrey Schmitt proposes a new test to determine whether such laws have an unconstitutional extraterritorial effect. Turning to the utilities sector, Shelly Welton, the former Deputy Director of Columbia’s Center for Climate Change Law, discusses the failure of the Federal Energy Regulatory Commission to promote innovation in energy efficiency, storage, demand response, and distributed generation. And Prof. David Wirth argues that the President has substantial power to join and implement a multilateral treaty on climate action, such as might come out of the Paris conference, without congressional action.
Finally, this issue includes a Comment on CTS Corp. v. Waldburger from Michael Barclay, who graduated from HLS this year and has served as an article editor for ELR. In CTS Corp., the Supreme Court ruled that CERCLA, which preempts statutes of limitation, does not also preempt statutes of repose. (Statutes of repose bar suits brought too long after a defendant’s last act, rather than turning on the plaintiff’s discovery of harm, as statutes of limitation do.) The Comment discusses the case’s practical and legal consequences, particularly as regard plaintiffs who could be barred from suing under CERCLA or similar laws because the harm from an environmental pollutant took too long to manifest.