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Volume 47 (2020) - Issue 2

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

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 list the grayling under the Act, citing, among other things, the uncertainty associated with how the grayling would respond to climate change. The Endangered Species Act has long been heralded as one of the United States’ most protective environmental statutes, due in part to its precautionary mandate that the government take action to help species before they face extinction. But agency implementation and judicial interpretation of the Endangered Species Act has only recently begun to grapple with the crisis of climate change, which threatens global biodiversity and promises to test the strength of the Endangered Species Act. One factor complicating traditional enforcement of the Endangered Species Act in the face of climate change is the uncertainty that can cloud species-specific climate science. This uncertainty makes it difficult for agencies to know how climate change will impact a particular species. In the face of this uncertainty, this Note argues that agencies should embrace the precautionary principle to help guide listing decisions and critical habitat designations under the Endangered Species Act.

Feb 16, 2021
Natasha Geiling

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

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. In addition, the court determined the state holds the shores in an inalienable trust for, at minimum, public uses such as walking and fishing. This ruling expands the access rights of the general public to traverse Indiana’s portion of Lake Michigan’s shores. Environmentalists and public trust advocates hailed the decision as a milestone public trust precedent which provides a legal foundation for future environmental advocacy in Indiana. This decision is further notable because other Great Lakes states have not been consistent in addressing the question about state title and public rights on the shores of navigable water bodies. Given that the water levels of the Great Lakes already vary significantly and are expected to vary even more because of the impacts of climate change, the Gunderson decision best supports adaptive shore management. Ultimately, Great Lakes states with flexible and broad public trust doctrines, such as Indiana post-Gunderson, will be best able to manage increasing water-level variability on their shores.

Feb 16, 2021
Betsy Marshall

The Atlantic Coast Pipeline and the Pipeline Pipe Dream

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, drilling through a mountain, and constructing three compressor stations. Throughout the project’s history, community and environmental groups opposed its construction. One coalition challenged different aspects of the pipeline permitting process under federal law and won a favorable U.S. Court of Appeals for the Fourth Circuit verdict. But the Supreme Court reversed an aspect of the Fourth Circuit’s decision, holding that the U.S. Forest Service has the authority to grant a right-of-way on land crossed by the Appalachian Trail. However, even a Supreme Court win was not enough to save the project: the Atlantic Coast Pipeline was canceled shortly after it received a favorable decision from the nation’s highest court. The showdown between Atlantic Coast Pipeline and the Appalachian Trail exemplifies the tension between escalating U.S. oil and gas development and protecting spaces for recreational, scientific, cultural, and aesthetic uses. This Note argues the legislative and executive history behind the National Trails System Act of 1968 supports the protection of trails on federal lands, and the plain language of a statutory trio reserves to Congress the ability to grant oil and gas pipeline rights-of-way across national trails in the National Park System, such as the Appalachian Trail. In addition, this Note suggests an alternative framework for granting oil and gas pipeline rights-of-ways across national trails both in and outside the National Park System. Given that national trails were created to offer an escape from development and industry, oil and gas pipeline rights-of-way should only be granted across national trails on federal lands if no prudent and feasible alternative exists. By limiting oil and gas pipeline development on national trails, such trails may be preserved for future users, untrammeled and undisturbed, as escapes.

Feb 16, 2021
Nina Lincoff

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

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 States and its border neighbors over the last two hundred years, the plaintiffs chose not to invoke any of these (relatively toothless) compacts. Instead, they took their case to the courts. In 2018, the Ninth Circuit held that United States courts had properly exercised personal jurisdiction over the Canadian defendant—a success for the plaintiffs, and one that future plaintiffs in transboundary pollution cases may be able to use to their advantage. However, personal jurisdiction is far from the only hurdle facing plaintiffs in transboundary pollution lawsuits. This Note argues that the United States should address transboundary pollution through an enforceable multilateral agreement rather than leaving such cases to domestic courts; identifies the North American Free Trade Agreement as a particularly promising forum for such an agreement; and briefly sketches what such a solution could look like.

Feb 16, 2021
Natalie Collins