Hydraulic fracturing, an oil and gas drilling technique commonly referred to as “fracking,” has experienced a profound expansion in the United States since the dawn of the twenty-first century. Providing an influx of cheap oil and gas and new job opportunities, the boom has worked wonders for the American economy. However, with the financial benefits came considerable environmental risks, such as air pollution and water contamination. With the federal government’s role in regulating fracking uncertain, the states have taken up the torch in managing the practice. Dissatisfied with state regulations, many local governments have passed local bans and moratoria to protect their communities from environmental and public health harms. But states and oil and gas interests have responded with lawsuits seeking to invalidate local fracking restrictions as inconsistent with state law. These preemption efforts have seen recent success in Colorado, where the state supreme court struck down a fracking ban in the City of Longmont and a five-year moratorium in the City of Fort Collins. Notably, the court contrasted the fracking restriction endeavors in Colorado with the success of local restrictions in Pennsylvania. Robinson Township in Pennsylvania successfully argued that Pennsylvania’s obligation to protect natural resources for the public superseded state efforts to prohibit local bans on fracking. The Colorado Supreme Court indicated that no such state obligation to the public existed in the Colorado Constitution or in Colorado common law. However, this begs the question about whether state obligations to protect water resources could bolster efforts of local governments in other states to hamper fracking.
{"title":"Trust in Local Government: How States’ Legal Obligations to Protect Water Resources Can Support Local Efforts to Restrict Fracking","authors":"William C. Mumby","doi":"10.15779/Z38V698C2K","DOIUrl":"https://doi.org/10.15779/Z38V698C2K","url":null,"abstract":"Hydraulic fracturing, an oil and gas drilling technique commonly referred to as “fracking,” has experienced a profound expansion in the United States since the dawn of the twenty-first century. Providing an influx of cheap oil and gas and new job opportunities, the boom has worked wonders for the American economy. However, with the financial benefits came considerable environmental risks, such as air pollution and water contamination. With the federal government’s role in regulating fracking uncertain, the states have taken up the torch in managing the practice. Dissatisfied with state regulations, many local governments have passed local bans and moratoria to protect their communities from environmental and public health harms. But states and oil and gas interests have responded with lawsuits seeking to invalidate local fracking restrictions as inconsistent with state law. These preemption efforts have seen recent success in Colorado, where the state supreme court struck down a fracking ban in the City of Longmont and a five-year moratorium in the City of Fort Collins. Notably, the court contrasted the fracking restriction endeavors in Colorado with the success of local restrictions in Pennsylvania. Robinson Township in Pennsylvania successfully argued that Pennsylvania’s obligation to protect natural resources for the public superseded state efforts to prohibit local bans on fracking. The Colorado Supreme Court indicated that no such state obligation to the public existed in the Colorado Constitution or in Colorado common law. However, this begs the question about whether state obligations to protect water resources could bolster efforts of local governments in other states to hamper fracking.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"195"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44387912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In August 2016, the D.C. Circuit held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA) when it issued an Incidental Take Permit (ITP) for the endangered Indiana bat.1 On the one hand, the D.C. Circuit concluded that FWS did not need to ensure that the proposed project’s minimization and mitigation efforts were “the maximum that can be practically implemented” in order to satisfy the ESA.2 On the other hand, the D.C. Circuit held that FWS violated NEPA by failing to consider a reasonable range of alternatives.3 This ruling breathes “new life”4 into the procedural force and requirements of NEPA, suggesting that courts may insist on greater consistency between an agency’s stated goals for a project and the process by which the agency analyzes alternatives. At the same time, because this particular project posed a threat to an endangered species, the decision’s influence on future cases involving impacts of lesser significance is unclear. At the very least, however, Union Neighbors should spur agencies to take greater care in selecting an appropriate range of alternatives for future NEPA analyses when there are important statutory values implicated by the project’s impacts.
{"title":"Union Neighbors United, Inc. v. Jewell: A Hard Look at Procedural Compliance under NEPA","authors":"Amy Collier","doi":"10.15779/Z38959C765","DOIUrl":"https://doi.org/10.15779/Z38959C765","url":null,"abstract":"In August 2016, the D.C. Circuit held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA) when it issued an Incidental Take Permit (ITP) for the endangered Indiana bat.1 On the one hand, the D.C. Circuit concluded that FWS did not need to ensure that the proposed project’s minimization and mitigation efforts were “the maximum that can be practically implemented” in order to satisfy the ESA.2 On the other hand, the D.C. Circuit held that FWS violated NEPA by failing to consider a reasonable range of alternatives.3 This ruling breathes “new life”4 into the procedural force and requirements of NEPA, suggesting that courts may insist on greater consistency between an agency’s stated goals for a project and the process by which the agency analyzes alternatives. At the same time, because this particular project posed a threat to an endangered species, the decision’s influence on future cases involving impacts of lesser significance is unclear. At the very least, however, Union Neighbors should spur agencies to take greater care in selecting an appropriate range of alternatives for future NEPA analyses when there are important statutory values implicated by the project’s impacts.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"527"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49497311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today in California, urban infill development proliferates. A welcome alternative to decades of greenfield expansion, this infill boom is the culmination of regulatory incentives like SB 375, economic growth in urban areas, as well as increasing awareness of the climate evils of vehicle emissions (quantified in vehicle miles traveled, or VMT). The social, spatial, environmental, and economic effects of this infill boom are far-flung and implicate many areas of study. This Note focuses on the environmental health implications of siting infill development near increasingly trafficked transit corridors. By placing people in closer proximity to work and transit, infill development lowers VMT; however, this land-use pattern potentially exposes more people to fine particulate matter from vehicles. The California Air Resources Board and Air Quality Management Districts initially attempted to solve this exposure issue through the California Environmental Quality Act (CEQA). Concerns about the suitability of CEQA to address these “reverse” environmental issues, perceived barriers that CEQA poses to infill development, and environmental health collided in California Building Industries Association v. Bay Area Air Quality Management District. Though seemingly contrary to decades of planning practices in California, the California Supreme Court’s decision offers a new way forward—a path planners and health officials in San Francisco began in 2008—that could potentially make urban infill easier to develop as well as healthier for residents.
{"title":"Reversing Course in California: Moving CEQA Forward","authors":"Giulia Gualco-Nelson","doi":"10.15779/Z38000007N","DOIUrl":"https://doi.org/10.15779/Z38000007N","url":null,"abstract":"Today in California, urban infill development proliferates. A welcome alternative to decades of greenfield expansion, this infill boom is the culmination of regulatory incentives like SB 375, economic growth in urban areas, as well as increasing awareness of the climate evils of vehicle emissions (quantified in vehicle miles traveled, or VMT). The social, spatial, environmental, and economic effects of this infill boom are far-flung and implicate many areas of study. This Note focuses on the environmental health implications of siting infill development near increasingly trafficked transit corridors. By placing people in closer proximity to work and transit, infill development lowers VMT; however, this land-use pattern potentially exposes more people to fine particulate matter from vehicles. The California Air Resources Board and Air Quality Management Districts initially attempted to solve this exposure issue through the California Environmental Quality Act (CEQA). Concerns about the suitability of CEQA to address these “reverse” environmental issues, perceived barriers that CEQA poses to infill development, and environmental health collided in California Building Industries Association v. Bay Area Air Quality Management District. Though seemingly contrary to decades of planning practices in California, the California Supreme Court’s decision offers a new way forward—a path planners and health officials in San Francisco began in 2008—that could potentially make urban infill easier to develop as well as healthier for residents.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"155"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45870024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Pushing the Boundaries of the Public Trust on the Last Frontier: A Study in Why the Doctrine Should Not Apply to Wildlife","authors":"T. Schumann","doi":"10.15779/Z38KP7TR4T","DOIUrl":"https://doi.org/10.15779/Z38KP7TR4T","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"269"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45020149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Columbia River Tribal Housing: Federal Progress Addressing Long Unmet Obligations","authors":"S. Phillips","doi":"10.15779/Z381R6N11Q","DOIUrl":"https://doi.org/10.15779/Z381R6N11Q","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"545"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44565133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Foreword: Environmental Law and the Changing Data Paradigm","authors":"J. Diamond","doi":"10.15779/Z38MP4VN4X","DOIUrl":"https://doi.org/10.15779/Z38MP4VN4X","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2017-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41474560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Environmental regulation invariably requires making decisions in the face of scientific uncertainty. However, making decisions in the near-absence of evidence—essentially, the most extreme uncertainty—is a special case because it most plainly exposes the defaults and preferences of those making the decisions, and because it may inspire creative ways of reducing the probability of error. Here, we relate the case of an Endangered Species Act listing of several rockfish species in Puget Sound, Washington, which illustrates a set of decisions the National Marine Fisheries Service made in the absence of critical information about those populations. Subsequent scientific effort and technological advances have been powerful tests of the listing decision, and have suggested different outcomes for each of the three species under evaluation. We discuss this case in the context of agency discretion and internal incentives to make or defer decisions. We then highlight the roles of technological change and institutional learning as they intersect with these incentives, and suggest structural means of enabling this kind of effective data use by administrative agencies more generally.
{"title":"Science, Policy, and Data-Driven Decisions in a Data Vacuum","authors":"R. Kelly, P. Levin, Kai N. Lee","doi":"10.15779/Z38GX44V0M","DOIUrl":"https://doi.org/10.15779/Z38GX44V0M","url":null,"abstract":"Environmental regulation invariably requires making decisions in the face of scientific uncertainty. However, making decisions in the near-absence of evidence—essentially, the most extreme uncertainty—is a special case because it most plainly exposes the defaults and preferences of those making the decisions, and because it may inspire creative ways of reducing the probability of error. Here, we relate the case of an Endangered Species Act listing of several rockfish species in Puget Sound, Washington, which illustrates a set of decisions the National Marine Fisheries Service made in the absence of critical information about those populations. Subsequent scientific effort and technological advances have been powerful tests of the listing decision, and have suggested different outcomes for each of the three species under evaluation. We discuss this case in the context of agency discretion and internal incentives to make or defer decisions. We then highlight the roles of technological change and institutional learning as they intersect with these incentives, and suggest structural means of enabling this kind of effective data use by administrative agencies more generally.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2017-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47669866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The history of the U.S. environmental justice movement reveals that successful campaigns are seldom waged solely through litigation. Instead, communities have employed litigation and administrative actions as part of a broader grassroots struggle to achieve shortand long-term change. Even when not successful on the merits, such actions can facilitate both informationgathering and information-dissemination, with the accompanying public scrutiny providing an increased incentive to reform agency or corporate behavior. Latin American communities seeking environmental justice face similar, and often greater, obstacles in pursuing claims through the courts. Transnational corporations, operating under U.S. trade and investment treaties like the North American Free Trade Agreement, can take advantage of ineffective environmental protection regimes in Latin American countries and generally escape liability in U.S. courts as well. Yet these trade treaties also include a citizen submission on enforcement matters process, where citizens can spotlight environmental violations and force an oversight body to generate and publish an authoritative factual record. This Article assesses this citizen submissions process in the context of a holistic approach to environmental justice campaigns. Drawing on parallels from the U.S. movement, the Article highlights how the citizen submissions process can validate data gathered by the community, facilitate generation of new information, publicize that information to a much wider audience, and provide a meaningful rallying point for community organizing. The Article concludes that, while the factual record itself holds limited value as a standalone remedy, the informational aspects of the process nonetheless can be an effective compliance-promoting tool in a broader environmental justice campaign.
{"title":"Trade Treaties, Citizen Submissions, and Environmental Justice","authors":"Jeff Todd","doi":"10.15779/Z387D2Q72N","DOIUrl":"https://doi.org/10.15779/Z387D2Q72N","url":null,"abstract":"The history of the U.S. environmental justice movement reveals that successful campaigns are seldom waged solely through litigation. Instead, communities have employed litigation and administrative actions as part of a broader grassroots struggle to achieve shortand long-term change. Even when not successful on the merits, such actions can facilitate both informationgathering and information-dissemination, with the accompanying public scrutiny providing an increased incentive to reform agency or corporate behavior. Latin American communities seeking environmental justice face similar, and often greater, obstacles in pursuing claims through the courts. Transnational corporations, operating under U.S. trade and investment treaties like the North American Free Trade Agreement, can take advantage of ineffective environmental protection regimes in Latin American countries and generally escape liability in U.S. courts as well. Yet these trade treaties also include a citizen submission on enforcement matters process, where citizens can spotlight environmental violations and force an oversight body to generate and publish an authoritative factual record. This Article assesses this citizen submissions process in the context of a holistic approach to environmental justice campaigns. Drawing on parallels from the U.S. movement, the Article highlights how the citizen submissions process can validate data gathered by the community, facilitate generation of new information, publicize that information to a much wider audience, and provide a meaningful rallying point for community organizing. The Article concludes that, while the factual record itself holds limited value as a standalone remedy, the informational aspects of the process nonetheless can be an effective compliance-promoting tool in a broader environmental justice campaign.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"89"},"PeriodicalIF":0.0,"publicationDate":"2017-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42780938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Author(s): Wang, Alex | Abstract: In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance. First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure law in China. Second, this Article unpacks the social effects of information disclosure law in China’s authoritarian bureaucratic governance setting. Where interests are compatible in practice, disclosure has enabled state and society advocacy, and catalyzed new channels for public supervision in environmental regulation. It has also provided a powerful rights-based way for advocates to frame their actions. Yet for all its promise, information disclosure creates risks for those involved and reveals deep tensions in Chinese governance – between authoritarian and bottom-up approaches to rule, and the overarching policy objectives of social stability and performance. These tensions limit the utility of disclosure in practice, with serious potential consequences (e.g., weakened state legitimacy and a hobbled environment) for state and society actors alike.
{"title":"Explaining Environmental InformationDisclosure in China","authors":"A. Wang","doi":"10.15779/Z386688J63","DOIUrl":"https://doi.org/10.15779/Z386688J63","url":null,"abstract":"Author(s): Wang, Alex | Abstract: In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance. First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure law in China. Second, this Article unpacks the social effects of information disclosure law in China’s authoritarian bureaucratic governance setting. Where interests are compatible in practice, disclosure has enabled state and society advocacy, and catalyzed new channels for public supervision in environmental regulation. It has also provided a powerful rights-based way for advocates to frame their actions. Yet for all its promise, information disclosure creates risks for those involved and reveals deep tensions in Chinese governance – between authoritarian and bottom-up approaches to rule, and the overarching policy objectives of social stability and performance. These tensions limit the utility of disclosure in practice, with serious potential consequences (e.g., weakened state legitimacy and a hobbled environment) for state and society actors alike.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"865"},"PeriodicalIF":0.0,"publicationDate":"2017-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49243606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses several behavioral modification approaches as a way of changing consumer preferences and possible ways to resolve the current conflict between state marijuana legalization and its federal criminalization.
{"title":"Illegal Marijuana Cultivation on Public Lands: Our Federalism on a Very Bad Trip","authors":"Hope M. Babcock","doi":"10.15779/Z38W669836","DOIUrl":"https://doi.org/10.15779/Z38W669836","url":null,"abstract":"Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses several behavioral modification approaches as a way of changing consumer preferences and possible ways to resolve the current conflict between state marijuana legalization and its federal criminalization.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"723"},"PeriodicalIF":0.0,"publicationDate":"2017-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67571549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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