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Foreword

Internet Editor

February 16th 2021

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 ...

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

Internet Editor

February 16th 2021

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 ...

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

Internet Editor

February 16th 2021

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 ...

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

Internet Editor

February 16th 2021

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 ...

The No CARB Diet: Should the California State Legislature Cut the California Air Resources Board Out of Its Emissions Reduction Regulatory Scheme?

Internet Editor

February 16th 2021

The Cap-and-Trade Program is a crucial aspect of California’s climate agenda and one of the foremost carbon emissions reduction efforts in the world. But flaws in the design of the Program’s compliance instruments diminish its overall effectiveness by limiting the amount of net emissions reductions achieved. This In Brief argues ...

Giving a Hoot: Adaption of Conservation Laws to Address the Management of Invasive Species to Protect Spotted Owls

Internet Editor

February 16th 2021

Congress enacted the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA) to ensure species are protected and habitats are preserved. In 2008, the U.S. Fish and Wildlife Service (the Service) sought permits for an experimental removal of Barred Owls, an invasive species protected under the MBTA that ...

Public Land Bargains, Revolutionary Rhetoric, and Building Trust

Internet Editor

February 16th 2021

In 2019, the Supreme Court decided Sturgeon v. Frost for the second time. Sturgeon arose because of a 1980 federal statute, the Alaska National Interest Lands Conservation Act, that limited the executive branch’s jurisdiction over public land in Alaska to lands to which the federal government holds title. This is ...

Weyerhaeuser v. U.S. Fish and Wildlife Service: Swirling Uncertainty around the Definition of Habitat

Internet Editor

February 16th 2021

Habitat loss and degradation are the leading causes of species endangerment in North America. Increasingly, climate change is becoming a significant factor in species endangerment as it disrupts migration routes, changes animal behavior, and shifts species’ ranges. In the coming decades, habitat loss and climate change will threaten more than ...

It’s a Shore Thing: Applying the Public Trust Doctrine to Indiana’s Great Lake Shores in Gunderson v. State

Internet Editor

February 16th 2021

Who owns the shore of Indiana’s section of Lake Michigan when it is not covered in water—a private landowner or the public? In February 2018, the Indiana Supreme Court held that the state of Indiana retains exclusive title up to the natural ordinary high water mark (OHWM) of Lake Michigan. ...

Can the Precautionary Principle Save the Endangered Species Act from an Uncertain Climate Future?

Internet Editor

February 16th 2021

Beginning in the 1980s, conservation groups began campaigning for the federal government to list the fluvial Arctic grayling—a relative of the salmon that lives only in the cold waters of North America—as threatened or endangered under the Endangered Species Act. In 2014, the U.S. Fish and Wildlife Service declined to ...

The Atlantic Coast Pipeline and the Pipeline Pipe Dream

Internet Editor

February 16th 2021

For the Atlantic Coast Pipeline, a roughly six-hundred-mile natural gas pipeline stretching from West Virginia to North Carolina, a right-of-way to intersect the Appalachian Trail was essential. Although the proposed pipeline crossed below the trail by about six-hundred feet, it would require clearing of trees and plants along its length, ...

On the Borderline: Pakootas, NAFTA, and the Problem of Transboundary Pollution

Internet Editor

February 16th 2021

The plaintiffs in Pakootas v. Teck Cominco faced a particularly challenging legal problem: not only was a large corporation polluting their local environment, but the corporation was located in Canada, while the plaintiffs lived in the United States. Although a variety of environmental agreements have been struck between the United ...

Unstable Elements: What the Fractured Decision in Virginia Uranium Means for the Future of Atomic Energy Act Preemption

Internet Editor

February 16th 2021

In Virginia Uranium v. Warren, the Supreme Court wrestled with the question of whether Virginia was preempted from banning uranium mining with the goal of preventing milling and tailings disposal, activities that can only be regulated by the Federal Nuclear Regulatory Commission. While the Court upheld Virginia’s ban, it did ...

Urgenda: A How-To Guide for Enforcing Greenhouse Gas Emission Targets by Protecting Human Rights

Internet Editor

February 16th 2021

The Supreme Court of the Netherlands ended 2019 as the first court in history to establish that protection from dangerous climate change is a human right thereby requiring the reduction of greenhouse gas emissions to align with internationally recognized climate targets. The State of the Netherlands v. Urgenda Foundation establishes ...

The California Supreme Court on the Significance of Emissions under CEQA: Read Between the Lines

Internet Editor

February 16th 2021

For California to meet its climate goals, there must be swift, bold infrastructure changes that facilitate decarbonization of the transportation sector. The California Supreme Court’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Cleveland) is a mixed bag for those who would use the California Environmental ...

Transmission Impossible: The Case for a Nationwide Permit for Offshore Wind Transmission Lines

Internet Editor

February 16th 2021

The United States is drastically behind the rest of the world when it comes to offshore wind energy. With only one offshore wind farm in operation, developers have cited regulatory burdens and excessive litigation as two of the primary constraints on the industry. Currently, these developers must go through several ...

Gundy v. United States: A Revival of the Nondelegation Doctrine and an Embrace of Cost-Benefit Analysis in Environmental Rulemaking

Internet Editor

February 16th 2021

After Gundy v. United States, the Supreme Court is poised to dramatically roll back the power of administrative agencies through a reinvigoration of the nondelegation doctrine. This will substantially restrict the ability of agencies, particularly the Environmental Protection Agency, to promulgate environmental regulations and will render large swaths of the ...

Fair Winds: Enforcement of the Good Neighbor Provision after Wisconsin v. EPA

Internet Editor

February 16th 2021

To steer a ship, sailors cannot direct the wind, but they can adjust the sails. Likewise, the Environmental Protection Agency (EPA) cannot direct where air pollution drifts, but it can adjust the rules for combating interstate air pollution between states. The “good neighbor provision” of the Clean Air Act (CAA) ...

A Shallow Opinion: The Supreme Court Missed an Opportunity to Provide Guidance on Interstate Water Compacts in Texas v. New Mexico

Internet Editor

February 16th 2021

Climate change is making water a scarcer resource. Warming temperatures, urban growth, and agricultural demand are pushing water resources to their limits. Increasingly, rival states compete over water allocation from limited sources throughout the country, such as the Rio Grande. These fights often extend to the courtroom. Since drafting the ...

Requiring Robust NEPA Analysis for Fossil Fuel Projects: A Promising Trend in the Tenth Circuit

Internet Editor

February 16th 2021

Since President Trump took office in 2017, the Bureau of Land Management and other executive agencies have pursued expansive and aggressive development of fossil fuel resources on public lands. This development will add to the United States’ already large contribution to climate change. Unfortunately, those seeking to convince the U.S. ...

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