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Volume 47 (2020) - Issue 2

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

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 that enabling covered entities to purchase nonadditional carbon offsets and bank emissions allowances creates loopholes that lead to increased emissions and deepened inequities.

Feb 16, 2021
Joya Manjur

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

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 is contributing to the decline of the Northern Spotted Owl, a threatened species protected under the ESA and the MBTA. In Friends of Animals v. U.S. Fish & Wildlife Service, the Ninth Circuit upheld the Service’s proposed action and found that birds protected under the MBTA may be removed for scientific use. Additionally, the Court found that removing a protected species, known as “take,” does not have to benefit the species being taken (harmed, harassed, or killed). This ruling allows Barred Owls to be removed for the benefit of Northern Spotted Owls. The court rejected the “same-species theory,” which required take of a species protected by the MBTA be for the benefit of that same species. This decision provides the Service with flexibility to experimentally remove protected invasive species for the benefit of other species experiencing population declines. This In Brief will examine the potential ramifications of these interventions going forward.

Feb 16, 2021
Jetta Cook

Public Land Bargains, Revolutionary Rhetoric, and Building Trust

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 a major deviation from the default public land management regime, in which the federal government can regulate private activity on state or private land under the Property Clause of the Constitution to achieve public land objectives. Because this limitation only applies in Alaska, the Alaska National Interest Lands Conservation Act can be thought of as a public land “bargain” between one state and the federal government. This Note discusses public land “bargains,” like the Alaska National Interest Lands Conservation Act, and proposes a framework for assessing future “bargains.” To do this, it first presents a taxonomy of existing public land “bargains,” focusing on the rhetorical context surrounding their passage. Second, it presents some of the arguments made by modern public land “bargain” advocates. Third, it argues that public land “bargains” can make it more challenging for the federal government to promote healthy ecological systems and achieve statutory goals. Fourth, it proposes a loose theoretical framework for assessing public land “bargains” in light of those costs. Finally, it argues that the costs of public land “bargains” might be avoidable if land management agencies instead work to build trust with public land communities.

Feb 16, 2021
Robert Kutchin

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

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 one million species. To prevent future extinctions, governments need to be flexible in responding to threats species face and proactive in protecting current and potential future habitat.

Feb 16, 2021
Chris Wilson