This Note proposes a new standard for review in the spirit of both the precautionary principle and the deference owed to agency decisions on technical matters. Such a standard is grounded in the ESA and the Supreme Court’s reasoning in Tennessee Valley Authority v. Hill.
There are various possible methods for the United States to become more forward-looking, which is essential if we are going to reduce greenhouse gas emissions and protect future generations from climate change. The United States is unlikely to follow precisely in the footsteps of France and Germany because Notre Affaire à Tous and Neubauer involved federal constitutional environmental amendments and the Paris Agreement, which the United States withdrew from and later rejoined. However, while the United States is unlikely to pass a federal constitutional amendment to protect the environment, other methods of protection can and have been more successful in protecting future generations from environmental harm. These methods may be helpful in conjunction with each other. A case based on the Due Process Clause of the federal Constitution could succeed in the future, especially if based on procedural due process rights. Some states, including Pennsylvania, Hawaii, Montana, and Massachusetts, have had recent cases enforcing their state’s constitutional environmental provisions, despite experiencing limitations to enforcement early on. In addition, several recent executive orders by President Biden, including Executive Order 14008, have included provisions to protect future generations. Nevertheless, it is worth noting that although all the strategies mentioned for encouraging action on climate change and protecting future generations are essential—they are just commitments to reducing greenhouse gas emissions. Countries and states must follow through on these commitments for any change to occur.
The United States Forest Service (USFS) is the federal agency responsible for overseeing all national forests and grasslands. The agency’s forest management duties rest on a careful balancing of interests. This Note argues for transferring the duty to conduct such NEPA reviews to another agency entirely, the Environmental Protection Agency. After describing the USFS’s relationship to logging and NEPA, this Note provides and evaluates a proposal for reassigning NEPA duties, with the goal of ensuring more objective and transparent environmental reviews.
Climate events are only going to get worse. Water in the Pecos Basin is becoming more scarce. To apportion Pecos River water properly, Texas and New Mexico must work together to create a more comprehensive compact that delineates how to apportion losses from climate-related events. The Supreme Court need not be the arbitrator of all these disputes; rather, the Compact should be detailed enough to give the states clear direction on how to manage conflicts. This would prevent putting an entire region’s livelihood in the hands of nine justices and save the Court’s resources for truly novel legal questions instead of having to exercise their original jurisdiction to solve relatively simple and repetitive disputes.