We are honored to introduce the Ecology Law Quarterly’s 2020–21 Annual Review of Environmental and Natural Resource Law. Now in its twenty-second year, the Annual Review is a collaborative endeavor of students and faculty. But the greatest contributors to the Annual Review are Ecology Law Quarterly's (ELQ) editorial board and members. ELQ continues to be the leading journal in the field because of their passion and commitment.
In County of Maui v. Hawai’i Wildlife Fund, the Supreme Court held that “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” The Court thus confirmed that some discharges traveling from point sources to navigable waters via intermediate nonnavigable and non-point- source “conduits” require permitting under the Clean Water Act. However, the meaning of “functional equivalence” was left ambiguous, and the Court’s proposed list of factors to determine functional equivalence was incomplete. This standard and its attendant factors, if applied incorrectly, risk undermining the purpose of the Clean Water Act.
Since their inception, administrative agencies have played a critical role in setting the trajectory of national regulatory schemes. Over the last several decades, agencies have become increasingly responsive to executive policy positions. Though executive control of agency action has long been accepted as a desirable system of accountability, the increasingly partisan and politicized nature of executive policymaking has consequences, including a lack of transparency and a departure from the legislative purpose for agency regulation.
In 2015, twenty-one youth plaintiffs and environmental activists caught global attention when they sued the United States government for its complicity in perpetuating climate change. Juliana v. United States was likely the highest- profile climate case yet, and the next year, a federal district court judge ruled that the lawsuit could proceed. But in 2020, the plaintiffs lost in the Ninth Circuit where the court held that the plaintiffs lacked standing. Despite this loss, Juliana remains a remarkable case, if anything for the inspiration it provided for potential and future litigants. Indeed, climate litigation has only increased since the Juliana plaintiffs first filed their case, both domestically and internationally