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LATEST PRINT

Foreword

We are honored to introduce Ecology Law Quarterly’s 2019–20 Annual Review of Environmental and Natural Resource Law. Now in its twenty-first year, the Annual Review is a collaborative endeavor by students and faculty. But the greatest contribution to the Annual Review is made by the editorial board and members of Ecology Law Quarterly (ELQ). ELQ continues to be the leading journal in the field because of their passion and commitment. Three students deserve special recognition: Kaela Shiigi, Emily Miller, and Katie Sinclair devoted a substantial portion of their final year of law school to assisting and advising the student authors. This Annual Review is infused with their talent and insights.

Feb 16, 2021

The PURPA Haze: Clearing the Way for PURPA Implementation in a Changed Energy System

The Public Utility Regulatory Policy Act was passed in 1978 to protect the U.S. electricity supply under the shadow of fuel insecurity and a looming energy crisis. In 2020, the need to mitigate climate change through reducing greenhouse gas emissions, along with the need to adapt to new extreme weather and climatic realities, pose the greatest challenges and threats to the U.S. electricity grid. The Public Utility Regulatory Policy Act has been only moderately successful in supporting the development of small renewable generators; however, a different implementation framework could make the Act a strong, effective tool for supporting the transition to the renewable and resilient electricity we need. In this Note, I argue that small, distributed storage and renewable generation are a cost-effective and efficient way to both transition to clean generation and make the grid more resilient against climate-based threats. I then explain why the Public Utility Regulatory Policy Act has not been widely successful as currently implemented and why the Federal Energy Regulatory Commission’s October 2019 proposal for revising its regulations under the Public Utility Regulatory Policy Act misses the mark. Finally, I propose two different regulatory frameworks for making the Act work in today’s climate change reality.

Feb 16, 2021

The Takings Are Coming: How Federal Courts Can Protect Regulatory Efforts to Address California’s Housing Crisis

In 2018, California Governor Gavin Newson called for building 3.5 million new homes by 2025, a historically unprecedented rate of construction intended to address the state’s severe and worsening housing crisis. Spiraling unaffordability, insufficient housing, and destructive urban sprawl have exacerbated environmental and socioeconomic disparities in California, enabled by restrictive local government regulations that make it difficult to build housing in the dense, job-rich areas where it is needed most. Taking aggressive action to alleviate this crisis is crucial. As state and local governments seek to do so, courts play a critical role in evaluating the legitimacy of land use laws intended to facilitate more affordable housing construction. For decades, state courts have been the first to evaluate such laws when subject to legal challenges, including determining whether a government regulation has gone too far by taking private property without just compensation under the Fifth Amendment’s Takings Clause. But a recent Supreme Court decision upends this precedent. In Knick v. Township of Scott, the Court issued an opinion that allows property owners to go directly to federal court if they believe a regulation amounts to an unconstitutional taking. This includes challenging regulations that are central to California’s efforts to build more affordable housing, such as rent control ordinances, inclusionary zoning laws, and measures designed to limit sprawl. Because federal courts unfamiliar with state law will likely mistakenly evaluate takings claims and view property owners more sympathetically than state courts, Knick threatens to undermine these regulations. This Note explores why safeguarding rent control, inclusionary housing, and growth control measures is crucial to addressing California’s housing crisis. In doing so, it evaluates the implications of the Knick decision for relevant Takings Clause jurisprudence and argues that a threatened reevaluation of takings claims can be avoided if federal courts look to California housing law as a guide.

Feb 16, 2021

Encouraging Reasoned Decision Making: Kisor v. Wilkie and the Future of Auer Deference

In 2019, the Supreme Court decided Kisor v. Wilkie, a case that asked the Court to revisit Auer deference, the doctrine which instructs courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Auer deference, along with other judicial deference doctrines, has received vehement criticism from legal scholars and political scientists. Among these criticisms is the assertion that Auer deference allows too much opportunity for judges’ own views of “reasonableness” to infiltrate their legal analysis, increasing the likelihood that judicial deference to agency interpretations will be significantly influenced by ideology. The majority decision in Kisor purported to articulate clearer standards for the application of Auer deference and require judges to more clearly articulate their analysis in cases where Auer deference may be appropriate. This Note considers whether the Kisor framework could mitigate the impact of judicial ideology on deference decisions. It focuses in particular on the use of Auer deference in cases involving the Endangered Species Act, a statute which has been highly polarizing along party lines. The Note examines several cases, decided before and after Kisor, in which federal courts were asked to rule on the meaning of Endangered Species Act regulations. This analysis suggests that while Kisor is unlikely to completely remove the influence of judicial ideology on deference decisions, its requirement that judges “show their work” has the potential to significantly reduce the role that judicial ideology plays in determining what constitutes a “reasonable” interpretation of an ambiguous regulation. While it is too soon to definitively evaluate Kisor’s impact on deference decisions, this Note suggests that the Kisor framework encourages a more principled and ideologically neutral approach to difficult agency deference decisions.

Feb 16, 2021
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LATEST CURRENTS

Exploring Prospects for Environmental Justice as the EPA Reaches the Half-Century Mark

As the U.S. Environmental Protection Agency turns 50, the federal government remains a laggard on environmental justice. We offer three forward-facing remedies to provide more just outcomes for environmental justice communities through the legal system: refocusing criminal enforcement efforts to prioritize environmental justice communities, further conceptualizing environmental justice communities as victims of crime in the legal system, and expanding the use of crime victim compensation targeted at environmental justice communities. These remedies will ensure that environmental justice communities are better protected from harm and will provide opportunities to better compensate victims.

Dec 07, 2020

Easing Off the Gas: Efficient and Equitable Policy for Passenger Vehicle Emissions Reduction

There are various public policy approaches to addressing passenger vehicle carbon emissions. In this article I review three possible approaches: raising emissions standards; alternative fuel vehicle subsidies; and congestion charging zones. I propose a set of criteria for evaluating these different policies, and apply those criteria to the three policies. I conclude that a combination of increased passenger vehicle emissions standards and subsidies for alternative fuel vehicles represents the best policy approach.

Oct 26, 2020

Smart Grids Need Smart Privacy Laws: Reconciling the California Consumer Privacy Act with Decentralized Electricity Models

The California Consumer Privacy Act (CCPA) grants strong privacy rights, including allowing a consumer to opt out of the sale of her information to third parties, and to request that a business delete her information from its records. At the same time, the electricity industry is transitioning towards a decentralized distribution scheme, where electricity providers use consumer information and blockchain technology to improve energy efficiency. The CCPA is problematic to this shift in electricity distribution in two ways.

Aug 18, 2020

Colluding to Save the World: How Antitrust Laws Discourage Corporations from Taking Action on Climate Change

“The loftiest of purported motivations do not excuse anti-competitive collusion among rivals. That’s long-standing antitrust law.” So begins a USA Today opinion piece by Makan Delrahim, Assistant Attorney General and head of the Antitrust Division. Delrahim was defending a Department of Justice (DOJ) investigation into four major automakers who had recently announced they would continue to meet California’s fuel efficiency standards even as the Trump Administration moved to roll back higher efficiency standards at the federal level. The agreement between the automakers will likely lead to higher prices for consumers, which—regardless of other positive benefits—could be illegal under antitrust law. But should it be?

Jul 27, 2020
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Ecology Law Quarterly, one of the nation’s most respected and widely read environmental law journals.