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Volume 48 (2021)

A Landowner Walks into a Bar: Using State Common Law to Encourage Efficient CERCLA Cleanups

In 2020, the Supreme Court decided Atlantic Richfield v. Christian, a case that asked the Court to reconcile ostensibly competing concerns in the Comprehensive Environmental Response, Compensation, and Liability Act: the jurisdictional bar that limits challenges to the Environmental Protection Agency’s ongoing cleanup plans and the savings clause that makes room for state restoration claims which are not available under the Act. The case arose when landowners on a Superfund site in Montana sought restoration damages under Montana state law during an ongoing Environmental Protection Agency- led cleanup.

Mar 15, 2022
Betsy Marshall

Tribal Co-Management: A Monumental Undertaking?

After seven years of organizing, the Bears Ears Inter-Tribal Coalition— made up of the Hopi, Navajo, Uintah and Ouray Ute, Ute Mountain Ute, and Zuni Nations—secured the protection of 1.35 million acres of federal public land within the boundaries of the state of Utah. The land included the twin Bears Ears buttes, which rose to the south above Cedar Mesa, a cultural landscape sacred to these five Native Nations and many others.

Mar 15, 2022
Emma Blake

Changing Oceans, Lagging Management

This is a story of energy and fish, the federal laws that regulate them, and their past and future as resource industries in the United States. United States federal law has long treated our oceans as an endless bounty of natural resources, ready for human extraction, consumption, and exhaustion. But our oceans have changed and so too must our ocean policy. We face concurrent crises of climate change, resource depletion, and environmental degradation. And with these realities comes a responsibility on the part of lawmakers to reevaluate ocean resource policies, especially as they relate to emerging resource industries.

Mar 15, 2022
Megan Raymond

Standing After Environment Texas: The Problem of Cumulative Environmental Harm

Environment Texas Citizen Lobby v. ExxonMobil reaffirms the age-old adage that Everything is Bigger in Texas. The facts drip with superlatives. Baytown, Texas is home to Exxon’s prized facility, the “largest petroleum and petrochemical complex in the nation.” The plaintiffs—environmental groups suing on behalf of Baytown residents—alleged Exxon committed over 16,000 violations of the Clean Air Act (CAA). The District Court for the Southern District of Texas ordered Exxon to pay the “largest civil penalty ever imposed in an environmental citizen suit.” Yet, the unprecedented victory was short-lived. The Fifth Circuit Court of Appeals vacated the order, instructing the lower court on remand to analyze whether the plaintiffs had standing for each of the 16,000 violations. Demonstrating that claims, or groups of CAA violations, met the requirements for standing was not enough; citizen-suit plaintiffs must demonstrate that each alleged violation met the requirements of Article III.

Mar 15, 2022
Andrew Barron