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Ecology Law Quarterly Volume 50.2

Linda Gordon

March 16th 2024

Foreword Becky Hunter & Grayson Peters Articles A California Environmental Court to Adjudicate Climate Change, by Becky Hunter Protecting Species and Timber Communities from Extinction: A Case Study on Spotted Owls, Logging, and Cooperative Management in Western Lane County, Oregon, by Sierra Killian Closing the Ocean Fracking Gap: EPA Leadership ...

A California Environmental Court to Adjudicate Climate Change

Linda Gordon

March 16th 2024

Climate change creates mitigation and adaptation needs across the country, especially in California, which faces flooding, erosion, fire, and extreme weather. To armor against the rising tide of climate change and its accompanying flood of litigation, California should create a specialized environmental court to adjudicate state climate issues.

Protecting Species and Timber Communities from Extinction: A Case Study on Spotted Owls, Logging, and Cooperative Management in Western Lane County, Oregon

Linda Gordon

March 16th 2024

This Note uses western Lane County as a case study to diagnose sticking points in conservation under the ESA and prescribe characteristics of management strategies more likely to sustain both resource extraction-dependent communities and populations of listed specie

Closing the Ocean Fracking Gap: EPA Leadership Is Needed to Regulate Aging Rigs and Evolving Risks Offshore

Linda Gordon

March 16th 2024

This Note explores how fracking has slipped through the cracks in a closely regulated industry. Examining the root of the problem, this Note outlines how we might design an administrative apparatus to address emerging environmental harms in the context of aging oil and gas infrastructure.

The Californian Case for a Western RTO

Linda Gordon

March 16th 2024

CAISO provides many benefits to Californians, but a West-wide RTO could provide even more. The urgent need to garner new sources of renewable electricity generation necessitates that California facilitate the creation of a regional grid operator that can effectively promote the development of new, green transmission lines.

More Individualized and Easier to Follow: A Case for Changes to the Production of Pesticide Warning Labels

Linda Gordon

March 16th 2024

To fulfill its statutory mandate under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the U.S. Environmental Protection Agency (EPA) should provide information about risk factors for developing cancer, both in terms of individual risk profiles and making the results of the registration and re-registration reviews more accessible to the ...

Ending Pesticide Myopia: Broadening the Role of Alternatives in Assessing Dangerous Products Under FIFRA

Linda Gordon

March 16th 2024

EPA’s unambiguous duty to consider alternatives can be a forceful tool to cancel duplicative, hazardous pesticides. EPA should take advantage of that authority to protect unsuspecting consumers from pesticides that can be easily replaced by less harmful ones.

Today’s Crutch, Tomorrow’s Calamity: Interstate Aquifer Management Must Center Sustainable Yield

Linda Gordon

March 16th 2024

This Note demonstrates that the Court’s surface water equitable apportionment doctrine, which primarily protects established uses, is insufficient to protect interstate groundwater resources.

Constraining Federal Policy Whiplash on Public Lands

Linda Gordon

March 16th 2024

Although solutions that curb whiplash are hard to come by in a country characterized by an increasingly polarized electorate, this Note suggests several avenues to consider within the legislative, executive, and judicial branches.

First Amendment Constraints on Proposition 65

Linda Gordon

March 16th 2024

This Note examines the fate of Proposition 65 in the aftermath of California Chamber of Commerce v. Council for Education & Research on Toxics, a 2022 Ninth Circuit case that affirmed a preliminary injunction against enforcement of the acrylamide cancer warning.

The Social Cost of the Social Cost of Carbon

Linda Gordon

March 16th 2024

Cost Benefit Analysis is indeed irredeemably biased against climate action. It is also a fundamentally arbitrary metric to judge climate regulations aimed at preserving human health, safety, and the environment, and one which undermines the federal government’s stated commitment to environmental justice. The way forward is not better cost-justification of ...

Environmental Justice in Cumulative Impacts Analysis

Linda Gordon

March 16th 2024

Cumulative impact analysis (CIAs) under NEPA and CEQA are currently flawed. However, with the above amendments to NEPA and CEQA’s CIA frameworks, government agencies’ EAs of projects, such as the Project in San Bernardino, will be better positioned to consider and prioritize environmental justice concerns moving forward.

Living with Major Questions: West Virginia Leaves Opportunity for USDA in Farm Bill Commodity Subsidies

Linda Gordon

March 16th 2024

USDA’s ability to mitigate climate change through commodity subsidy programs exemplifies an area where bold, agency-led climate action is still possible, even after West Virginia.

Oil in Water: Juries and the Oil Pollution Act

Malia Libby

March 16th 2024

United States v. Evergreen Resource Recovery, LLC shows the Fifth Circuit’s willingness to expand Seventh Amendment rights for jury trials to corporations under statutory claims. Finding a Seventh Amendment right for defendants under the Oil Pollution Act has potential implications for higher government expenditures, for greater outcome biases that may ...

Climate Adaptation Lawsuits: Navigating the Primary Jurisdiction Problem

Malia Libby

March 16th 2024

This article discusses CLF v. Exxon Mobil, which limited agency deference by restricting the Doctrine of Primary Jurisdiction’s scope of application. It exposes issues beyond the simple adjudication of disputes and raises broader administrative and constitutional law questions.

Trading in Ambiguity: Unraised Issues in Export Clause Interpretation

Malia Libby

March 16th 2024

The Fifth Circuit’s recent decision in Trafigura makes it more difficult for environmental agencies to force polluters to pay for the damage that their businesses cause. The court’s reasoning has broad significance because it restricts the use of excise charges to remediate environmental dangers at home if the good in ...

Caveat CEQA: Postscript to a Landmark Appellate Win for California’s Housing Accountability Act

Malia Libby

March 16th 2024

California Renters remains the gold standard for interpreting the HAA with its strict “reasonable person” standard and pro-housing bias. However, it remains to be seen whether the HAA can stand up to the delays, cost overruns, and outright project denials caused by California’s environmental review process under the California Environmental ...

The Un-Recyclability of EPR: Shortcomings of California’s Senate Bill 54

Malia Libby

March 16th 2024

Senate Bill 54 (SB 54), or the Plastic Pollution Prevention and Packaging Producer Responsibility Act, was signed into California state law in June of 2022 to both applause and criticism. This In Brief highlights many of the most pungent vulnerabilities and loopholes present in SB 54 that may lead to ...

Environmental Justice and Community Advocacy: A Case Study for Toxic Tort Claims

Malia Libby

March 16th 2024

Tort claims and toxic tort claims have long been a vehicle to address the gaps left by statutes. Butler v. Denka is one such case, and raises a fundamental question: can citizens successfully sue a factory that caused multiple cancer illnesses in their community by emitting excessive pollution?

Persistence or Desistence: Prosecuting Environmental Crimes During the Trump and Obama Administrations

Linda Gordon

September 28th 2023

Donald Trump was hostile towards environmental regulation from his first day in office. From rolling back regulations, to appointing industry insiders and anti-environmentalists to important positions within the U.S. Environmental Protection Agency (EPA), Department of Justice (DOJ), and other agencies tasked with the enforcement of environmental laws, Trump intended to ...

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