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Environmental law covers a lot of territory, intersecting with energy law and land use law. The range of topics in the Annual Review is a tribute to the diversity of the field. The contributions to this issue demonstrate that innovative legal analysis can not only advance legal doctrine, but can also identify pathways for improving policy. All of those who contributed to the issue deserve credit for continuing ELQ’s tradition of excellence over the past half-century. Law professors, students, legal historians, and countless other scholars seeking insight into the major developments in environmental, natural resource, and land use law, as well as developments overseas, will benefit from this Annual Review.
The Court’s major questions doctrine is deeply flawed and should be renounced. There are several reasons for this conclusion: the doctrine lacks analytical rigor; it aggrandizes the judiciary at the expense of constitutionally mandated separation of powers principles; it is unnecessary, since existing mechanisms provide more than adequate judicial review of administrative actions; and the doctrine compromises the legitimacy of judicial decision making.
This Note proposes a new standard for review in the spirit of both the precautionary principle and the deference owed to agency decisions on technical matters. Such a standard is grounded in the ESA and the Supreme Court’s reasoning in Tennessee Valley Authority v. Hill.
There are various possible methods for the United States to become more forward-looking, which is essential if we are going to reduce greenhouse gas emissions and protect future generations from climate change. The United States is unlikely to follow precisely in the footsteps of France and Germany because Notre Affaire à Tous and Neubauer involved federal constitutional environmental amendments and the Paris Agreement, which the United States withdrew from and later rejoined. However, while the United States is unlikely to pass a federal constitutional amendment to protect the environment, other methods of protection can and have been more successful in protecting future generations from environmental harm. These methods may be helpful in conjunction with each other. A case based on the Due Process Clause of the federal Constitution could succeed in the future, especially if based on procedural due process rights. Some states, including Pennsylvania, Hawaii, Montana, and Massachusetts, have had recent cases enforcing their state’s constitutional environmental provisions, despite experiencing limitations to enforcement early on. In addition, several recent executive orders by President Biden, including Executive Order 14008, have included provisions to protect future generations. Nevertheless, it is worth noting that although all the strategies mentioned for encouraging action on climate change and protecting future generations are essential—they are just commitments to reducing greenhouse gas emissions. Countries and states must follow through on these commitments for any change to occur.