Pub Date : 2022-06-05DOI: 10.52214/cjel.v47i2.9872
Luther Caulkins
Efforts to “link” together several state or provincial GHG cap-and- trade programs to form a regional cap-and-trade initiative in western North America began in the early 2000s but never realized their aims. Now, emerging organized electricity markets in western states, includ- ing the Energy Imbalance Market, offer the possibility of integrating these markets with a regional cap-and-trade program to cut emissions at a low cost. This Note explains how a regional cap-and-trade program could be incorporated into the West’s nascent organized electricity mar- kets. It then argues that doing so could cost-effectively reduce power sector emissions, guide clean energy development, and alleviate incon- sistencies between varying state climate regulations. However, because of a phenomenon called “resource shuffling,” these benefits would not materialize unless all or most western states participate in the cap-and- trade program. To realize the climate benefits of integrating organized markets with cap-and-trade, climate-concerned advocates and policy- makers should therefore continue to aspire to a national cap-and-trade program or a regional program that attracts broad participation.
{"title":"Fusing Electricity and Carbon Markets in the American West Can Organized Electricity Markets Bolster Cap-and- Trade","authors":"Luther Caulkins","doi":"10.52214/cjel.v47i2.9872","DOIUrl":"https://doi.org/10.52214/cjel.v47i2.9872","url":null,"abstract":"\u0000 \u0000 \u0000Efforts to “link” together several state or provincial GHG cap-and- trade programs to form a regional cap-and-trade initiative in western North America began in the early 2000s but never realized their aims. Now, emerging organized electricity markets in western states, includ- ing the Energy Imbalance Market, offer the possibility of integrating these markets with a regional cap-and-trade program to cut emissions at a low cost. This Note explains how a regional cap-and-trade program could be incorporated into the West’s nascent organized electricity mar- kets. It then argues that doing so could cost-effectively reduce power sector emissions, guide clean energy development, and alleviate incon- sistencies between varying state climate regulations. However, because of a phenomenon called “resource shuffling,” these benefits would not materialize unless all or most western states participate in the cap-and- trade program. To realize the climate benefits of integrating organized markets with cap-and-trade, climate-concerned advocates and policy- makers should therefore continue to aspire to a national cap-and-trade program or a regional program that attracts broad participation. \u0000 \u0000 \u0000","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"91 9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128015277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-05DOI: 10.52214/cjel.v47i2.9874
Gregor Novak
During the last several decades the ocean has maintained its histori- cally pivotal socio-economic and geopolitical role. Humans rely on the ocean for habitation and nourishment, energy and sanitation, migra- tion and refuge, trade and communication, knowledge and meaning- giving, and the maintenance of global peace and security. Yet many who depend on the ocean are poorly served by what may be called “ocean law.” Moreover, the ocean and its resources are under acute strain through overfishing, the varied consequences of climate change and ocean degradation, sea-level rise, and the risk of marine infectious dis- eases, among other threats. This Article identifies widely-recognized de- ficiencies in “ocean law,” traces them to the design of ocean lawmaking, and draws on the latter’s history to point towards a path of democratic reform. Navigators are skilled at “reading the waves,” distilling insights about past and likely future events from ripples on the ocean’s surface. Similarly, this Article samples from the modern history of humanity’s re- lationship with the ocean to gain insights into continuities, changes, and dynamic elements in contemporary ocean lawmaking. The Article ar- gues that keeping in mind, supporting, and leveraging certain dynamic elements revealed in this lawmaking arena can help democratize ocean lawmaking and accelerate sorely needed reforms in ocean law. Such reforms are needed because contemporary ocean lawmaking has pro- duced ocean law whose main defect is not merely that it is patchy, uncoordinated, and often ineffective but that it is heavily skewed to- wards powerful actors with vested interests in the status quo. As a re- sult, it has sidelined those who must bear the downstream costs of its lawmaking outcomes and placed at risk the very survival of the ocean ecosystem and those who rely on it. In turn, any reform of ocean law- making should give more power and voice to vulnerable coastal com- munities, victims of human trafficking, refugees, maritime workers, peo- ple deriving their livelihood from the marine economy, consumers, the scientific community, indigenous peoples, future generations, and the maritime ecosystem itself.
{"title":"Reading the Waves: Continuity and Change in Ocean Lawmaking","authors":"Gregor Novak","doi":"10.52214/cjel.v47i2.9874","DOIUrl":"https://doi.org/10.52214/cjel.v47i2.9874","url":null,"abstract":"\u0000\u0000\u0000During the last several decades the ocean has maintained its histori- cally pivotal socio-economic and geopolitical role. Humans rely on the ocean for habitation and nourishment, energy and sanitation, migra- tion and refuge, trade and communication, knowledge and meaning- giving, and the maintenance of global peace and security. Yet many who depend on the ocean are poorly served by what may be called “ocean law.” Moreover, the ocean and its resources are under acute strain through overfishing, the varied consequences of climate change and ocean degradation, sea-level rise, and the risk of marine infectious dis- eases, among other threats. This Article identifies widely-recognized de- ficiencies in “ocean law,” traces them to the design of ocean lawmaking, and draws on the latter’s history to point towards a path of democratic reform. Navigators are skilled at “reading the waves,” distilling insights about past and likely future events from ripples on the ocean’s surface. Similarly, this Article samples from the modern history of humanity’s re- lationship with the ocean to gain insights into continuities, changes, and dynamic elements in contemporary ocean lawmaking. The Article ar- gues that keeping in mind, supporting, and leveraging certain dynamic elements revealed in this lawmaking arena can help democratize ocean lawmaking and accelerate sorely needed reforms in ocean law. Such reforms are needed because contemporary ocean lawmaking has pro- duced ocean law whose main defect is not merely that it is patchy, uncoordinated, and often ineffective but that it is heavily skewed to- wards powerful actors with vested interests in the status quo. As a re- sult, it has sidelined those who must bear the downstream costs of its lawmaking outcomes and placed at risk the very survival of the ocean ecosystem and those who rely on it. In turn, any reform of ocean law- making should give more power and voice to vulnerable coastal com- munities, victims of human trafficking, refugees, maritime workers, peo- ple deriving their livelihood from the marine economy, consumers, the scientific community, indigenous peoples, future generations, and the maritime ecosystem itself.\u0000\u0000\u0000","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114476760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-05DOI: 10.52214/cjel.v47i2.9873
J. Kotzmann, Morgan Stonebridge
The public health consequences tied to our relationships with animals are significant. The COVID-19 pandemic and previous instances of zo- onotic disease emergence and re-emergence have demonstrated that human relationships with animals can have a profound impact on our health. In the US, the most prevalent human-animal relationship is the one we have with the animals that we eat. This relationship is defined and facilitated by intensive animal agriculture, a practice at high risk of causing zoonotic disease emergence. This Article explores the current regulatory regime governing intensive animal agriculture and argues that it is deficient in the context of zoonotic disease. It argues that this deficiency is a result of the legal anthropocentrism that manifests in practices inherent to intensive animal agriculture and demonstrates that such an approach is unable to adequately manage the risk of future zoonoses. This Article argues for a regulatory approach that acknowl- edges the interdependence of humans, animals, and the environment. It proposes Wild Law as the most appropriate framework to address the risk of zoonotic disease and concludes that intensive animal agriculture would not be permitted under a Wild Law approach due to its inherent inability to operate within the context of an interdependent human-an- imal-environment relationship.
{"title":"Preventing Another Pandemic: How Changing the Legal Paradigm Governing Intensive Animal Agriculture Will Reduce the Risk of Future Zoonoses","authors":"J. Kotzmann, Morgan Stonebridge","doi":"10.52214/cjel.v47i2.9873","DOIUrl":"https://doi.org/10.52214/cjel.v47i2.9873","url":null,"abstract":"\u0000 \u0000 \u0000The public health consequences tied to our relationships with animals are significant. The COVID-19 pandemic and previous instances of zo- onotic disease emergence and re-emergence have demonstrated that human relationships with animals can have a profound impact on our health. In the US, the most prevalent human-animal relationship is the one we have with the animals that we eat. This relationship is defined and facilitated by intensive animal agriculture, a practice at high risk of causing zoonotic disease emergence. This Article explores the current regulatory regime governing intensive animal agriculture and argues that it is deficient in the context of zoonotic disease. It argues that this deficiency is a result of the legal anthropocentrism that manifests in practices inherent to intensive animal agriculture and demonstrates that such an approach is unable to adequately manage the risk of future zoonoses. This Article argues for a regulatory approach that acknowl- edges the interdependence of humans, animals, and the environment. It proposes Wild Law as the most appropriate framework to address the risk of zoonotic disease and concludes that intensive animal agriculture would not be permitted under a Wild Law approach due to its inherent inability to operate within the context of an interdependent human-an- imal-environment relationship. \u0000 \u0000 \u0000","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121648192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-11DOI: 10.52214/cjel.v47is.9479
J. Ruple, Jamie Pleune, Erik L. Heiny
The National Environmental Policy Act requires federal agencies to consider environmental impacts before acting. NEPA is the Magna Carta of U.S. environmental law, a topic of intense debate, and the subject of ongoing rulemaking efforts. Prior NEPA scholarship focuses almost exclusively on Environmental Impact Statements, which account for just 1% of all NEPA decisions. Little is known about the length of time required to complete the other 99% of agency decisions, which involve a more streamlined review. This is a critical gap in the literature because NEPA compliance involves an estimated 50,000 federal decisions annually. NEPA reform, we believe, should begin with a careful understanding of NEPA practice at all levels of review. To help advance effective NEPA reform, we studied over 41,000 NEPA decisions completed by the U.S. Forest Service between 2004 and 2020. Using this data, we conducted a multivariate statistical analysis of the length of time required to complete the NEPA process at each level of review. We then investigated factors associated with longer decisionmaking times. Our model accounts for interactions between 3 levels of NEPA analysis, 43 activities involved in these decisions, 9 geographic regions, and the year of project initiation. Contrary to widely held assumptions, we found that a less rigorous level of analysis often fails to deliver faster decisions. Delays, we found, are often caused by factors only tangentially related to the Act, like inadequate agency budgets, staff turnover, delays receiving information from permit applicants, and compliance with other laws. Improving NEPA efficacy, we argue, should therefore focus on improving agency capacity. This approach, we believe, would improve the NEPA process and advance NEPA’s mandate to engage with key stakeholders and carefully consider environmental impacts before making decisions.
{"title":"Evidence-Based Recommendations for Improving National Environmental Policy Act Implementation","authors":"J. Ruple, Jamie Pleune, Erik L. Heiny","doi":"10.52214/cjel.v47is.9479","DOIUrl":"https://doi.org/10.52214/cjel.v47is.9479","url":null,"abstract":"The National Environmental Policy Act requires federal agencies to consider environmental impacts before acting. NEPA is the Magna Carta of U.S. environmental law, a topic of intense debate, and the subject of ongoing rulemaking efforts. Prior NEPA scholarship focuses almost exclusively on Environmental Impact Statements, which account for just 1% of all NEPA decisions. Little is known about the length of time required to complete the other 99% of agency decisions, which involve a more streamlined review. This is a critical gap in the literature because NEPA compliance involves an estimated 50,000 federal decisions annually. NEPA reform, we believe, should begin with a careful understanding of NEPA practice at all levels of review. \u0000To help advance effective NEPA reform, we studied over 41,000 NEPA decisions completed by the U.S. Forest Service between 2004 and 2020. Using this data, we conducted a multivariate statistical analysis of the length of time required to complete the NEPA process at each level of review. We then investigated factors associated with longer decisionmaking times. Our model accounts for interactions between 3 levels of NEPA analysis, 43 activities involved in these decisions, 9 geographic regions, and the year of project initiation. Contrary to widely held assumptions, we found that a less rigorous level of analysis often fails to deliver faster decisions. Delays, we found, are often caused by factors only tangentially related to the Act, like inadequate agency budgets, staff turnover, delays receiving information from permit applicants, and compliance with other laws. Improving NEPA efficacy, we argue, should therefore focus on improving agency capacity. This approach, we believe, would improve the NEPA process and advance NEPA’s mandate to engage with key stakeholders and carefully consider environmental impacts before making decisions.","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"9 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129087063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-11DOI: 10.52214/cjel.v47is.9477
Monte Mills, M. Nie
Nowhere else in the United States are tribal connections and reliance on federal public lands as deep and geographically broad-based as in what is now Alaska. The number of Tribes—229 federally recognized tribes—and the scope of the public land resource—nearly 223 million acres—are simply unparalleled. Across that massive landscape, federal public lands and the subsistence uses they provide remain, as they have been since time immemorial, “essential to Native physical, economic, traditional, and cultural existence.”[1] Alas, the institutions, systems, and processes responsible for managing those lands, protecting those uses, and honoring those connections are failing Alaska Native Tribes. The cases referenced in this article share a common theme: federal land officials underutilize their existing legal authorities to engage tribes in the management of federal public lands, or treat them like pro-forma “check-the-box” exercises that must be done but have no real substantive impact on decisions that are likely already made. In case after case, Alaska Native Tribes are forced to defensively react to federal land use programs, plans, and projects they had no role in substantively shaping. Though traditional methods of tribal consultation and engagement are used by federal land agencies, they are viewed for the most part as procedural hurdles that are divorced from their core missions and mandates.
{"title":"Bridges to a New Era, Part 2: A Report on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands in Alaska","authors":"Monte Mills, M. Nie","doi":"10.52214/cjel.v47is.9477","DOIUrl":"https://doi.org/10.52214/cjel.v47is.9477","url":null,"abstract":"Nowhere else in the United States are tribal connections and reliance on federal public lands as deep and geographically broad-based as in what is now Alaska. The number of Tribes—229 federally recognized tribes—and the scope of the public land resource—nearly 223 million acres—are simply unparalleled. Across that massive landscape, federal public lands and the subsistence uses they provide remain, as they have been since time immemorial, “essential to Native physical, economic, traditional, and cultural existence.”[1] Alas, the institutions, systems, and processes responsible for managing those lands, protecting those uses, and honoring those connections are failing Alaska Native Tribes. \u0000The cases referenced in this article share a common theme: federal land officials underutilize their existing legal authorities to engage tribes in the management of federal public lands, or treat them like pro-forma “check-the-box” exercises that must be done but have no real substantive impact on decisions that are likely already made. In case after case, Alaska Native Tribes are forced to defensively react to federal land use programs, plans, and projects they had no role in substantively shaping. Though traditional methods of tribal consultation and engagement are used by federal land agencies, they are viewed for the most part as procedural hurdles that are divorced from their core missions and mandates.","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124234400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-30DOI: 10.52214/cjel.v47i1.9130
Andrew Shifren
Nitrogen pollution is one of the most pressing environmental problems in the U.S. today, with grave implications for human and environmental health. Agricultural activities release the most nitrogen pollution of any industry, but a combination of prescriptive regulation of farmers and voluntary adoption of best practices has not solved the problem. However, municipal ordinances encouraging the sale of EEFs (Enhanced Efficiency Fertilizers) could be a new approach to tackle nitrogen pollution. More than 11 million acres of corn farms, largely in just five states, apply fertilizer extremely inefficiently. These states could realize the most benefits from an EEF ordinance in the form of lowered costs for farmers, higher revenues for fertilizer companies, and fewer environmental and humanhealth problems caused by nitrogen. This Note describes the issue of nitrogen fertilizer pollution in the U.S., provides the reasoning for a municipal minimum sales share EEF ordinance, and proposes a sample ordinance that a municipality in Illinois, Minnesota, Michigan, Nebraska, or Ohio could adopt to manage the most serious effects of nitrogen pollution on public health and the environment. This Note then analyzes the history of ordinances that municipalities have passed in order to regulate certain products similar to nitrogen fertilizers. The litigation that ensued after these ordinances passed illuminates the likely legal hurdles that an EEF ordinance would face.
{"title":"Local Solution for a Global Problem","authors":"Andrew Shifren","doi":"10.52214/cjel.v47i1.9130","DOIUrl":"https://doi.org/10.52214/cjel.v47i1.9130","url":null,"abstract":"\u0000 \u0000 \u0000Nitrogen pollution is one of the most pressing environmental problems in the U.S. today, with grave implications for human and environmental health. Agricultural activities release the most nitrogen pollution of any industry, but a combination of prescriptive regulation of farmers and voluntary adoption of best practices has not solved the problem. However, municipal ordinances encouraging the sale of EEFs (Enhanced Efficiency Fertilizers) could be a new approach to tackle nitrogen pollution. More than 11 million acres of corn farms, largely in just five states, apply fertilizer extremely inefficiently. These states could realize the most benefits from an EEF ordinance in the form of lowered costs for farmers, higher revenues for fertilizer companies, and fewer environmental and humanhealth problems caused by nitrogen. This Note describes the issue of nitrogen fertilizer pollution in the U.S., provides the reasoning for a municipal minimum sales share EEF ordinance, and proposes a sample ordinance that a municipality in Illinois, Minnesota, Michigan, Nebraska, or Ohio could adopt to manage the most serious effects of nitrogen pollution on public health and the environment. This Note then analyzes the history of ordinances that municipalities have passed in order to regulate certain products similar to nitrogen fertilizers. The litigation that ensued after these ordinances passed illuminates the likely legal hurdles that an EEF ordinance would face. \u0000 \u0000 \u0000","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"1698 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129392003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-30DOI: 10.52214/cjel.v47i1.9125
Jess R. Phelps
Iowa is primarily an agricultural landscape. It is perhaps then not a surprise that Iowa lacks a national forest. This initial reaction, however, misses the fact that Iowa very nearly had several national forests covering thousands of acres in the state. This Article explores this history, examines why these national forests did not materialize, and provides context for the use of other potential tools for securing contemporary conservation objectives in the state. To this end, Section II of this Article explores the state’s landscape history. Section III provides a history of the U.S. Forest Service and the creation of the eastern National Forests. Section IV specifically explores Iowa’s efforts towards establishing national forests. Section V briefly touches upon the state’s subsequent conservation efforts, while Section VI explores why more recent efforts to facilitate large-scale federal purchases have not materialized. Last, Section VII considers how current conservation tools may replicate at least some of the benefits that extensive national forests would have provided. Ultimately, Iowa’s lost national forests can help us to understand the process of National Forest formation, evolving conservation priorities, and the lasting benefits of landscape-level conservation efforts and how such projects can be pursued today.
{"title":"Iowa’s Lost National Forests","authors":"Jess R. Phelps","doi":"10.52214/cjel.v47i1.9125","DOIUrl":"https://doi.org/10.52214/cjel.v47i1.9125","url":null,"abstract":"Iowa is primarily an agricultural landscape. It is perhaps then not a surprise that Iowa lacks a national forest. This initial reaction, however, misses the fact that Iowa very nearly had several national forests covering thousands of acres in the state. This Article explores this history, examines why these national forests did not materialize, and provides context for the use of other potential tools for securing contemporary conservation objectives in the state. \u0000To this end, Section II of this Article explores the state’s landscape history. Section III provides a history of the U.S. Forest Service and the creation of the eastern National Forests. Section IV specifically explores Iowa’s efforts towards establishing national forests. Section V briefly touches upon the state’s subsequent conservation efforts, while Section VI explores why more recent efforts to facilitate large-scale federal purchases have not materialized. Last, Section VII considers how current conservation tools may replicate at least some of the benefits that extensive national forests would have provided. Ultimately, Iowa’s lost national forests can help us to understand the process of National Forest formation, evolving conservation priorities, and the lasting benefits of landscape-level conservation efforts and how such projects can be pursued today.","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121698194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-30DOI: 10.52214/cjel.v47i1.9129
Matthew Osnowitz
In the United States, the Endangered Species Act (ESA) represents the federal government’s paramount effort to protect endangered species. In no uncertain terms, the ESA prohibits harming endangered species by both private and governmental actors. Moreover, the Supreme Court determined that the ESA prevents courts from exercising their usual discretion when such actors take actions that will foreseeably result in harm to endangered species. Put simply, the ESA prevents courts from allowing harm to come to endangered species even if that harm is necessary for an immense benefit to human beings. This broad protection has been effective in preventing ecological loss in the U.S. But because of the breadth of the statute, courts must sometimes resolve disputes where harm to an endangered species is necessary to protect human health and safety. In these cases, courts have severely narrowed the ESA’s protections. Furthermore, changes in human and animal migration caused by climate change will pit human health against the welfare of endangered species far more often. Without better guidance from Congress, courts will likely continue to erode the strength of the ESA. This Note proposes expanding the ESA’s exemption process in order to forestall foundational attacks on the statute. By addressing this issue now, Congress can preserve the ESA’s core protections against increasingly problematic precedent.
{"title":"Value of an Endangered Species","authors":"Matthew Osnowitz","doi":"10.52214/cjel.v47i1.9129","DOIUrl":"https://doi.org/10.52214/cjel.v47i1.9129","url":null,"abstract":"In the United States, the Endangered Species Act (ESA) represents the federal government’s paramount effort to protect endangered species. In no uncertain terms, the ESA prohibits harming endangered species by both private and governmental actors. Moreover, the Supreme Court determined that the ESA prevents courts from exercising their usual discretion when such actors take actions that will foreseeably result in harm to endangered species. Put simply, the ESA prevents courts from allowing harm to come to endangered species even if that harm is necessary for an immense benefit to human beings. This broad protection has been effective in preventing ecological loss in the U.S. But because of the breadth of the statute, courts must sometimes resolve disputes where harm to an endangered species is necessary to protect human health and safety. In these cases, courts have severely narrowed the ESA’s protections. Furthermore, changes in human and animal migration caused by climate change will pit human health against the welfare of endangered species far more often. Without better guidance from Congress, courts will likely continue to erode the strength of the ESA. This Note proposes expanding the ESA’s exemption process in order to forestall foundational attacks on the statute. By addressing this issue now, Congress can preserve the ESA’s core protections against increasingly problematic precedent.","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125595714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-30DOI: 10.52214/cjel.v47i1.9131
Zoe Makoul
This Note poses the question of whether—and how—lawmaking can create a platform for promoting an environmental ethic. There is a body of scholarship about how values or virtue ethics impact lawmaking, but this Note also explores the opposite—how lawmaking impacts the values or virtue ethics of the public. Environmental ethicists disagree about the very origins of environmental ethics. Some thinkers believe that environmental ethics stem from “core values” that are inherent to human nature. Others posit a set of “green virtues” that can be learned. But there is agreement that education through exposure to the natural world is fundamental to ethical development. Ideally, people develop green virtues that guide their everyday actions but, to encourage a true love of the natural world, their core values must be awakened; this is done locally, via connections to wild spaces. Through the creation of national parks and through public land-granting, law creates a platform that can contribute to the formation of environmental consciousness, from materializing the “wilderness” ideal to demonstrating the value of “otherness.” The relationship between environmental law and environmental ethics creates a virtuous circle—in both senses of the word—as virtue drives enriched environmental law as much as environmental law has the capacity to create green virtues. The virtuous circle concept risks the implied instrumentalization of virtues, robbing them of intrinsic realization by using them as policy tools. However, this is a false dichotomy; environmental law is a tool that can be used by a democracy to change itself by creating a different set of experiences to make concrete the values that we hold in abstraction or as aspiration. This Note draws on Aristotle’s virtue ethics to posit that lawmaking can create a holistic platform for people to learn how to practice an environmental ethic, which in turn promotes the passage of new regulatory and protective environmental laws.
{"title":"Environmental Ethics and Environmental Law","authors":"Zoe Makoul","doi":"10.52214/cjel.v47i1.9131","DOIUrl":"https://doi.org/10.52214/cjel.v47i1.9131","url":null,"abstract":"\u0000 \u0000 \u0000This Note poses the question of whether—and how—lawmaking can create a platform for promoting an environmental ethic. There is a body of scholarship about how values or virtue ethics impact lawmaking, but this Note also explores the opposite—how lawmaking impacts the values or virtue ethics of the public. Environmental ethicists disagree about the very origins of environmental ethics. Some thinkers believe that environmental ethics stem from “core values” that are inherent to human nature. Others posit a set of “green virtues” that can be learned. But there is agreement that education through exposure to the natural world is fundamental to ethical development. Ideally, people develop green virtues that guide their everyday actions but, to encourage a true love of the natural world, their core values must be awakened; this is done locally, via connections to wild spaces. Through the creation of national parks and through public land-granting, law creates a platform that can contribute to the formation of environmental consciousness, from materializing the “wilderness” ideal to demonstrating the value of “otherness.” The relationship between environmental law and environmental ethics creates a virtuous circle—in both senses of the word—as virtue drives enriched environmental law as much as environmental law has the capacity to create green virtues. The virtuous circle concept risks the implied instrumentalization of virtues, robbing them of intrinsic realization by using them as policy tools. However, this is a false dichotomy; environmental law is a tool that can be used by a democracy to change itself by creating a different set of experiences to make concrete the values that we hold in abstraction or as aspiration. This Note draws on Aristotle’s virtue ethics to posit that lawmaking can create a holistic platform for people to learn how to practice an environmental ethic, which in turn promotes the passage of new regulatory and protective environmental laws. \u0000 \u0000 \u0000","PeriodicalId":246399,"journal":{"name":"Columbia Journal of Environmental Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133029590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-02DOI: 10.52214/CJEL.V46I2.8401
W. Boyd
The instrument choice debate has been a fixture of environmental law for much of the last three decades. While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change. Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving. In advancing this claim, the Article makes three main contributions. First, it provides a critical intellectual and institutional history of emissions trading that, for the first time, situates it within a broader history of instrument choice in law, economics, and political science. Second, it uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving, showing how the mainstream instrument choice debate has constrained our conceptions of the regulatory state and its capacity for climate action in jurisdictions around the world. Third, and finally, it advances a series of normative claims that seek to rethink and reimagine a more responsive and expansive approach to government problem solving in the face of the looming climate emergency.
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