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Volume 47 (2020) - Issue 2


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
Robert D. Infelise and Daniel Farber

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
Julietta Rose

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
Randall Winston

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
Chelsea Mitchell