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Foreword to the 2016-2017 Annual Review

Julie Rose

March 26th 2020

It is our pleasure to introduce Ecology Law Quarterly’s 2016–17 Annual Review of Environmental and Natural Resource Law. This is the Annual Review’s eighteenth year and is a product of collaboration among the ELQ editors and student authors, Berkeley Law’s environmental law faculty, and the Center for Law, Energy and ...

Reversing Course in California: Moving CEQA Forward

Julie Rose

March 26th 2020

Today in California, urban infill development proliferates. A welcome alternative to decades of greenfield expansion, this infill boom is the culmination of regulatory incentives like SB 375, economic growth in urban areas, as well as increasing awareness of the climate evils of vehicle emissions (quantified in vehicle miles traveled, or ...

Trust in Local Government: How States’ Legal Obligations to Protect Water Resources Can Support Local Efforts to Restrict Fracking

Julie Rose

March 26th 2020

Hydraulic fracturing, an oil and gas drilling technique commonly referred to as “fracking,” has experienced a profound expansion in the United States since the dawn of the twenty-first century. Providing an influx of cheap oil and gas and new job opportunities, the boom has worked wonders for the American economy. ...

A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act

Julie Rose

March 26th 2020

The Migratory Bird Treaty Act is one of our nation’s oldest environmental statutes. It was passed decades before the major environmental law renaissance of the 1970s, and is lesser known than the more contemporary wildlife protection statutes that dominate headlines and political debate, such as the Endangered Species Act.

Pushing the Boundaries of the Public Trust on the Last Frontier: A Study in Why the Doctrine Should Not Apply to Wildlife

Julie Rose

March 26th 2020

In 2016, the United States Supreme Court decided Sturgeon v. Frost, which posed the question of whether the federal government may regulate activities on nonfederal lands within the hundred million acres of land designated for preservation under a 1980 federal statute, the Alaska National Interest Lands Conservation Act (ANILCA). The ...

The Silent Beehive: How the Decline of Honey Bee Populations Shifted the Environmental Protection Agency’s Pesticide Policy towards Pollinators

Julie Rose

March 26th 2020

When honey bee populations began to drastically decline in 2006 from what came to be known as Colony Collapse Disorder, the response from the United States Department of Agriculture was swift. As research emerged on the causes, pesticides—specifically a new and widely used class of pesticides called neonicotinoids—quickly emerged as ...

Flow or Oscillate? The Mismatch between the Language Judges and Attorneys Use to Describe Electricity and the Actual Behavior of Electricity on the Grid

Julie Rose

March 26th 2020

In North Dakota v. Heydinger, two Eighth Circuit judges disagreed about the constitutionality of a Minnesota statute regulating the electricity imported into the state. Their disagreement stemmed from the judges’ conflicting understandings of the behavior of electrons.

Energy Jurisdiction in the Twenty-First Century

Julie Rose

March 26th 2020

The U.S. electrical grid is a modern marvel, consisting of nearly 3500 utility organizations, 450,000 miles of transmission lines, and six million miles of distribution cable that span across and crisscross the country to serve over 334 million people (and growing) whose total electricity demand exceeds 830 gigawatts. But the ...

Better Than Net Benefits: Rethinking the FERC v. EPSA Test to Maximize Value in Grid-Edge Electricity Markets

Julie Rose

March 26th 2020

Energy information and technology has reached a point where the operator of a twenty-first-century grid can balance supply and demand based on value, not cost. Better data, more distributed and dynamic resources, and improvements in supporting infrastructure represent an opportunity for an electric system to operate more reliably with less ...

Adequate Agency Action? How Procedural Trends in Environmental Citizen Suit Litigation Prompt a Reconsideration of Deference and Presumptions of Diligence

Julie Rose

March 26th 2020

In 2016, the Third Circuit affirmed the dismissal of a nonprofit group’s environmental citizen suit because it found that a government agency was already diligently prosecuting the defendant. The decision provided an important procedural precedent because it changed the standard by which agency prosecution is reviewed during a motion to ...

Limits of American Farm Bureau Federation v. EPA and the Clean Water Act’s TMDL Provision in the Mississippi River Basin

Julie Rose

March 26th 2020

Under the Clean Water Act, a troubling regulatory gap exists wherein the federal government is unable to directly regulate diffuse sources of water pollution in interstate waters. This gap has left many of the nation’s most important watersheds flooded with nutrient pollution from agricultural runoff, contrary to the purpose of ...

Requiem for American Nature Philosophy

Julie Rose

March 26th 2020

The idea of nature as a stable and predictable counterpoint to the disruptive energy and change of human societies is at the heart of one of the most enduring environmental writing traditions, the pastoral. Moreover, a related rhetorical convention, the pastoral elegy, distinguishes the nature writing and environmental philosophy of ...

Slowly Warming to Climate Change

Julie Rose

March 26th 2020

Patrick Michaels, a former professor at the University of Virginia, has built a second career at the libertarian Cato Institute issuing data-laden reports against mainstream climate change science. In his latest book, Lukewarming: The New Climate Science that Changes Everything, Michaels joins Paul Knappenberger, the assistant director for the Cato ...

Center for Biological Diversity v. Department of Fish & Wildlife and the Uncertainties in Project-Level Greenhouse Gas Emissions Analysis

Julie Rose

March 26th 2020

The California Global Warming Solutions Act of 2006 (“AB 32”) set statewide goals for greenhouse gas (GHG) emissions reductions. On November 30, 2015, the Supreme Court of California held in Center for Biological Diversity v. California Department of Fish and Wildlife that the California Department of Fish and Wildlife (CDFW) ...

Union Neighbors United, Inc. v. Jewell: A Hard Look at Procedural Compliance under NEPA

Julie Rose

March 26th 2020

In August 2016, the D.C. Circuit held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA) when it issued an Incidental Take Permit (ITP) for the endangered Indiana bat. On the ...

Interpreting “Appropriate and Necessary” Reasonably under the Clean Air Act: Michigan v. Environmental Protection Agency

Julie Rose

March 26th 2020

Under the administrative law principle of Chevron deference, if the language of a statute is ambiguous, a court must defer to the agency’s interpretation of that language if the agency’s interpretation is reasonable. In Michigan v. Environmental Protection Agency, the U.S. Supreme Court evaluated an Environmental Protection Agency (EPA) decision ...

Columbia River Tribal Housing: Federal Progress Addressing Long Unmet Obligations

Julie Rose

March 26th 2020

Native American tribes in the Northwest once centered entire societies around the Columbia River, living on its shores and fishing salmon from its waters. Beginning in the 1930s, however, the United States built a series of hydroelectric dams on the river, flooding tribal villages and destroying traditional tribal access to ...

People v. Rinehart: No Preemption of State Environmental Regulations under the Mining Act of 1872

Julie Rose

March 26th 2020

In People v. Rinehart, the California Supreme Court unanimously upheld a gold miner’s criminal conviction for using a suction dredge to mine the riverbed of a waterway on federal land in violation of a state moratorium on that mining method. The court reversed the California Court of Appeal’s holding that ...

AquAlliance v. United States Bureau of Reclamation: The Impact of Withholding Information from the Public

Julie Rose

March 26th 2020

In AquAlliance v. United States Bureau of Reclamation, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Bureau of Reclamation’s (Bureau) decision to withhold information about the construction and location of water wells from Freedom of Information Act (FOIA) requests. However, the court ...

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