Recklessly gambling with Kansas’s water rights to the Republican River, Nebraska used 17 percent more water than it was allocated by the interstate Republican River Compact during a drought in 2005–06. Kansas sued Nebraska for this breach of compact in the Supreme Court. While the Court ultimately found that Nebraska breached the Republican River Compact, the remedy was only damages for Kansas’s loss and partial disgorgement of Nebraska’s profits. By failing to require complete disgorgement of profits, the Court arguably failed to disincentivize future breaches of other interstate water compacts. This lack of disincentive is especially concerning given climate change predictions in the arid western United States. These predictions forecast higher temperatures and longer dry spells for this region. These impacts will make it increasingly difficult for states to comply with interstate water compacts unless the compacts themselves are adaptable to the impacts or there is a heavy penalty for noncompliance. As the Court has effectively taken the heavy penalty off the table through its ruling in Kansas v. Nebraska, it is important to understand the specific climate change impacts threatening the river basins and how adaptable the interstate water compacts are to these impacts. This Note discusses the Court’s decision in Kansas v. Nebraska, explains why a breach of compact is not desirable even when the water might have a higher market value in the states that breach, and then examines both the Republican River Compact and basin and the Rio Grande Compact and basin
{"title":"Climate Change and Compact Breaches: How The Supreme Court Missed an Opportunity to Incentivize Future Interstate-Water-Compact Compliance in Kansas v. Nebraska","authors":"Caitlin Brown","doi":"10.15779/Z38Z31NP0D","DOIUrl":"https://doi.org/10.15779/Z38Z31NP0D","url":null,"abstract":"Recklessly gambling with Kansas’s water rights to the Republican River, Nebraska used 17 percent more water than it was allocated by the interstate Republican River Compact during a drought in 2005–06. Kansas sued Nebraska for this breach of compact in the Supreme Court. While the Court ultimately found that Nebraska breached the Republican River Compact, the remedy was only damages for Kansas’s loss and partial disgorgement of Nebraska’s profits. By failing to require complete disgorgement of profits, the Court arguably failed to disincentivize future breaches of other interstate water compacts. This lack of disincentive is especially concerning given climate change predictions in the arid western United States. These predictions forecast higher temperatures and longer dry spells for this region. These impacts will make it increasingly difficult for states to comply with interstate water compacts unless the compacts themselves are adaptable to the impacts or there is a heavy penalty for noncompliance. As the Court has effectively taken the heavy penalty off the table through its ruling in Kansas v. Nebraska, it is important to understand the specific climate change impacts threatening the river basins and how adaptable the interstate water compacts are to these impacts. This Note discusses the Court’s decision in Kansas v. Nebraska, explains why a breach of compact is not desirable even when the water might have a higher market value in the states that breach, and then examines both the Republican River Compact and basin and the Rio Grande Compact and basin","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"245"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67590656","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 North Dakota v. Heydinger, two Eighth Circuit judges disagreed about the constitutionality of a Minnesota statute regulating the electricity imported into the state. Their disagreement stemmed from the judges’ conflicting understandings of the behavior of electrons. Judge James B. Loken described electrons as “flow[ing] freely” through the grid’s transmission lines “without regard to state borders.” Judge Diana E. Murphy, by contrast, contended that electrons do not “flow”; rather, they “oscillate in place.” Whereas Judge Murphy’s description of electrons comports with the language of physicists and engineers in the energy field, Judge Loken’s language is incorrect. This Note discusses the inaccurate and inconsistent language with which attorneys and judges describe electricity and the problems that result from this language. While many utilize the incorrect and outdated language of electrons and electricity flowing directly from a power plant to people’s homes, others reject this language. This flawed description likely did not cause problems in energy law cases in the early and mid-1900s. Due to the highly-interconnected structure of today’s electric grid, however, inaccuracies in the language that individuals use to describe electricity has caused fundamental disagreements in attorneys’ and judges’ interpretations of state and federal statutes. In order to avoid ongoing problems caused by these language discrepancies, attorneys and judges should conceptualize and describe the grid using language that
在北达科他州诉海丁格案中，两名第八巡回法院法官对明尼苏达州一项规定该州进口电力的法规是否符合宪法持不同意见。他们的分歧源于法官对电子行为的相互矛盾的理解。法官詹姆斯·b·洛肯(James B. Loken)将电子描述为“自由流动”，通过电网的传输线，“不考虑州边界”。相比之下，法官戴安娜·e·墨菲(Diana E. Murphy)认为，电子不会“流动”;相反，它们“原地振荡”。墨菲法官对电子的描述符合能源领域物理学家和工程师的语言，而洛肯法官的语言是不正确的。本说明讨论了律师和法官描述电的不准确和不一致的语言以及这种语言导致的问题。虽然许多人使用不正确和过时的语言，即电子和电流直接从发电厂流向人们的家中，但其他人拒绝使用这种语言。这种有缺陷的描述可能不会在20世纪初和中期的能源法案件中造成问题。然而，由于当今电网的高度互联结构，个人用来描述电力的语言不准确已经导致律师和法官对州和联邦法规的解释存在根本分歧。为了避免这些语言差异造成的持续问题，律师和法官应该使用以下语言来概念化和描述网格
{"title":"Flow or Oscillate? The Mismatchbetween the Language Judges andAttorneys Use to Describe Electricityand the Actual Behavior of Electricityon the Grid","authors":"Elissa Walter","doi":"10.15779/Z38B56D468","DOIUrl":"https://doi.org/10.15779/Z38B56D468","url":null,"abstract":"In North Dakota v. Heydinger, two Eighth Circuit judges disagreed about the constitutionality of a Minnesota statute regulating the electricity imported into the state. Their disagreement stemmed from the judges’ conflicting understandings of the behavior of electrons. Judge James B. Loken described electrons as “flow[ing] freely” through the grid’s transmission lines “without regard to state borders.” Judge Diana E. Murphy, by contrast, contended that electrons do not “flow”; rather, they “oscillate in place.” Whereas Judge Murphy’s description of electrons comports with the language of physicists and engineers in the energy field, Judge Loken’s language is incorrect. This Note discusses the inaccurate and inconsistent language with which attorneys and judges describe electricity and the problems that result from this language. While many utilize the incorrect and outdated language of electrons and electricity flowing directly from a power plant to people’s homes, others reject this language. This flawed description likely did not cause problems in energy law cases in the early and mid-1900s. Due to the highly-interconnected structure of today’s electric grid, however, inaccuracies in the language that individuals use to describe electricity has caused fundamental disagreements in attorneys’ and judges’ interpretations of state and federal statutes. In order to avoid ongoing problems caused by these language discrepancies, attorneys and judges should conceptualize and describe the grid using language that","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"343"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67439445","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}
Under the administrative law principle of Chevron deference, if the language of a statute is ambiguous, a court must defer to the agency’s interpretation of that language if the agency’s interpretation is reasonable.1 In Michigan v. Environmental Protection Agency, the U.S. Supreme Court evaluated an Environmental Protection Agency (EPA) decision to ignore costs when deciding whether regulation of power plants under the Clean Air Act (CAA) is “appropriate and necessary.”2 The majority opinion, written by Justice Scalia, held that EPA must consider cost, including the cost of compliance.3 Justice Kagan, writing for the dissent, argued that EPA acted reasonably in initially determining whether regulation was appropriate based on other factors such as potential harms and technological feasibility, because the agency necessarily evaluates cost during later phases of the regulatory process.4 In Part I, this In Brief surveys the legal background for power plant regulation and for Chevron deference. Then, Part II analyzes the case history and the Court’s reasoning in interpreting the appropriate-and-necessary language. Finally, Part III explores the potential implications of the Court’s decision for future cases and agency decisions. The Court in Michigan leaves Chevron deference relatively intact, but the Court’s reasoning nevertheless may reduce judicial deference to agency interpretation by broadening the scope of what courts have historically deemed unreasonable.
{"title":"Interpreting “Appropriate and Necessary” Reasonably under the Clean Air Act: Michigan v. Environmental Protection Agency","authors":"Maribeth Hunsinger","doi":"10.15779/Z385H7BT50","DOIUrl":"https://doi.org/10.15779/Z385H7BT50","url":null,"abstract":"Under the administrative law principle of Chevron deference, if the language of a statute is ambiguous, a court must defer to the agency’s interpretation of that language if the agency’s interpretation is reasonable.1 In Michigan v. Environmental Protection Agency, the U.S. Supreme Court evaluated an Environmental Protection Agency (EPA) decision to ignore costs when deciding whether regulation of power plants under the Clean Air Act (CAA) is “appropriate and necessary.”2 The majority opinion, written by Justice Scalia, held that EPA must consider cost, including the cost of compliance.3 Justice Kagan, writing for the dissent, argued that EPA acted reasonably in initially determining whether regulation was appropriate based on other factors such as potential harms and technological feasibility, because the agency necessarily evaluates cost during later phases of the regulatory process.4 In Part I, this In Brief surveys the legal background for power plant regulation and for Chevron deference. Then, Part II analyzes the case history and the Court’s reasoning in interpreting the appropriate-and-necessary language. Finally, Part III explores the potential implications of the Court’s decision for future cases and agency decisions. The Court in Michigan leaves Chevron deference relatively intact, but the Court’s reasoning nevertheless may reduce judicial deference to agency interpretation by broadening the scope of what courts have historically deemed unreasonable.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"535"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67405634","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":"Montana Environmental Information Center v. BLM and the Future of Methane Emissions Mitigation under NEPA","authors":"Emma Hamilton","doi":"10.15779/Z381V5BD48","DOIUrl":"https://doi.org/10.15779/Z381V5BD48","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"135 1","pages":"473"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67380171","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}
Robert L. Glicksman, David L. Markell, C. Monteleoni
Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the state of the environment or on human health and they have stimulated efforts to develop second order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances. This Article uses a different lens to consider the role of technological innovation. In particular, it considers how technological advances have the potential to shape governance efforts in the compliance realm. The Article demonstrates that such technological advances – especially new and improved monitoring capacity, advances in information dissemination through e-reporting and other techniques, and improved capacity to analyze information – have significant potential to transform governance efforts to promote compliance. Such transformation is likely to affect not only the “how” of compliance promotion, but also the “who.” Technological innovation is likely to contribute to new thinking about the roles key actors can and should play in promoting compliance with legal norms. The Article discusses some of the potential benefits of these types of technological innovation in the context of the Environmental Protection Agency (EPA)’s ongoing efforts to improve its compliance efforts by taking advantage of emerging technologies. We also identify some of the pitfalls or challenges that agencies such as EPA need to be aware of in opening this emerging bundle of new tools and making use of them to address real-world environmental needs.
{"title":"Technological Innovation, Data Analytics, and Environmental Enforcement","authors":"Robert L. Glicksman, David L. Markell, C. Monteleoni","doi":"10.15779/Z38C53F16C","DOIUrl":"https://doi.org/10.15779/Z38C53F16C","url":null,"abstract":"Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the state of the environment or on human health and they have stimulated efforts to develop second order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances. This Article uses a different lens to consider the role of technological innovation. In particular, it considers how technological advances have the potential to shape governance efforts in the compliance realm. The Article demonstrates that such technological advances – especially new and improved monitoring capacity, advances in information dissemination through e-reporting and other techniques, and improved capacity to analyze information – have significant potential to transform governance efforts to promote compliance. Such transformation is likely to affect not only the “how” of compliance promotion, but also the “who.” Technological innovation is likely to contribute to new thinking about the roles key actors can and should play in promoting compliance with legal norms. The Article discusses some of the potential benefits of these types of technological innovation in the context of the Environmental Protection Agency (EPA)’s ongoing efforts to improve its compliance efforts by taking advantage of emerging technologies. We also identify some of the pitfalls or challenges that agencies such as EPA need to be aware of in opening this emerging bundle of new tools and making use of them to address real-world environmental needs.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"44 1","pages":"41"},"PeriodicalIF":0.0,"publicationDate":"2016-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67446682","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 Clean Air Act (CAA) is a persistent source of federal-state conflict. Like many federal environmental laws, the CAA relies upon the cooperation of state environmental agencies for its execution and enforcement. To induce such cooperation, the CAA authorizes, even requires, the imposition of sanctions on noncooperating states, including the loss of federal highway funds. NFIB v. Sebelius, however, casts doubt on the constitutionality of the CAA’s sanction regime. Specifically, NFIB enforced limits on the use of conditional spending to induce state cooperation with a federal program and held that Congress may not use conditional spending to “coerce” state cooperation. Combined with South Dakota v. Dole, NFIB provides objecting states with a powerful set of arguments that the CAA highway fund sanctions are unconstitutional, and suggests potential challenges to other CAA sanction provisions as well.
{"title":"Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and Conditional Spending after NFIB v. Sebelius","authors":"J. Adler, Nathaniel Stewart","doi":"10.15779/Z380V89H45","DOIUrl":"https://doi.org/10.15779/Z380V89H45","url":null,"abstract":"The Clean Air Act (CAA) is a persistent source of federal-state conflict. Like many federal environmental laws, the CAA relies upon the cooperation of state environmental agencies for its execution and enforcement. To induce such cooperation, the CAA authorizes, even requires, the imposition of sanctions on noncooperating states, including the loss of federal highway funds. NFIB v. Sebelius, however, casts doubt on the constitutionality of the CAA’s sanction regime. Specifically, NFIB enforced limits on the use of conditional spending to induce state cooperation with a federal program and held that Congress may not use conditional spending to “coerce” state cooperation. Combined with South Dakota v. Dole, NFIB provides objecting states with a powerful set of arguments that the CAA highway fund sanctions are unconstitutional, and suggests potential challenges to other CAA sanction provisions as well.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"671"},"PeriodicalIF":0.0,"publicationDate":"2016-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67372247","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 occupation of the Malheur National Wildlife Refuge in Oregon by a group of armed militants led by Ammon Bundy during January 2016 spotlighted public land management to a largely oblivious American public. The militants’ month-long occupation was only the latest of several armed confrontations in recent years, one of them at Bundy’s father’s ranch in Nevada. What made the Malheur incident unusual were not only the length of the occupation but also the claims of the militants that their occupation was based on constitutional principles. We examine those claims in this article and find them meritless, wholly inconsistent with a long line of Supreme Court interpretations of the plenary federal power to manage federal public lands under the Property Clause. Although there is no justifiable legal case against federal ownership and management of public lands, the militants and their sympathizers may succeed in their efforts to divest federal land management in the political arena, epitomized by the 2016 Republican Party platform endorsing federal divestiture. Conveying federal lands to the states, as urged particularly by the state of Utah, however, would be a recipe for privatizing a common birthright of all Americans and inconsistent with moral, if not legal obligations to future generations.
2016年1月，一群由阿蒙·邦迪(Ammon Bundy)领导的武装分子占领了俄勒冈州的马勒国家野生动物保护区(Malheur National Wildlife Refuge)，公众对公共土地管理的关注在很大程度上是不知情的。武装分子长达一个月的占领只是近年来几次武装冲突的最新一次，其中一次发生在邦迪父亲位于内华达州的牧场。马勒事件的不同寻常之处不仅在于占领时间之长，还在于激进分子声称他们的占领是基于宪法原则的。我们在本文中审查了这些主张，发现它们毫无根据，完全不符合最高法院对根据财产条款管理联邦公共土地的全部联邦权力的一长串解释。尽管没有正当的法律案件反对联邦对公共土地的所有权和管理权，但武装分子及其同情者在政治舞台上剥夺联邦土地管理权的努力可能会成功，2016年共和党支持联邦土地管理权的政纲就是一个缩影。然而，就像犹他州特别敦促的那样，将联邦土地移交给各州，将是将所有美国人与生俱来的共同权利私有化的一种做法，而且与对后代的道德义务(如果不是法律义务的话)不符。
{"title":"The Property Clause and Its Discontents: Lessons from the Malheur Occupation","authors":"M. Blumm, Olivier Jamin","doi":"10.2139/SSRN.2817205","DOIUrl":"https://doi.org/10.2139/SSRN.2817205","url":null,"abstract":"The occupation of the Malheur National Wildlife Refuge in Oregon by a group of armed militants led by Ammon Bundy during January 2016 spotlighted public land management to a largely oblivious American public. The militants’ month-long occupation was only the latest of several armed confrontations in recent years, one of them at Bundy’s father’s ranch in Nevada. What made the Malheur incident unusual were not only the length of the occupation but also the claims of the militants that their occupation was based on constitutional principles. We examine those claims in this article and find them meritless, wholly inconsistent with a long line of Supreme Court interpretations of the plenary federal power to manage federal public lands under the Property Clause. Although there is no justifiable legal case against federal ownership and management of public lands, the militants and their sympathizers may succeed in their efforts to divest federal land management in the political arena, epitomized by the 2016 Republican Party platform endorsing federal divestiture. Conveying federal lands to the states, as urged particularly by the state of Utah, however, would be a recipe for privatizing a common birthright of all Americans and inconsistent with moral, if not legal obligations to future generations.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"781"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68350880","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 law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility — reduced procedural requirements for administrative agency decision making and less rigid substantive standards — would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law.This Article examines two areas of environmental law that have historically had a great deal of flexibility: hunting law and marine fisheries law. In both areas, management and regulatory decisions are updated on a regular basis by the relevant agencies, often annually. Procedural requirements for making decisions are often streamlined. And the substantive standards that apply to agency decisions are often quite broad and flexible, leaving substantial discretion to the agency. Yet these two areas of environmental law have experienced very different outcomes in terms of implementation: fisheries management in the United States is often perceived as failing, while hunting law is seen as quite successful in achieving its goals.This Article concludes that these different outcomes are the result of the interaction of legal flexibility with two other factors: the level of uncertainty about the condition or status of the natural resource being managed and the political context for regulatory or management decisions. Fisheries management is characterized by much greater levels of uncertainty about population levels than hunting management. Moreover, fisheries are the one area in the U.S. economy where there is still a substantial commercial industry based on the capture of wildlife for human use. The combination of scientific uncertainty and flexible law creates a substantial discretionary space in which decision makers can operate. In other words, decision makers have a wide range of legally defensible management choices. The fishing industry is able to exploit this fact to argue for weaker, but still legally defensible, regulation. The industry has every incentive to organize in pursuit of this goal. In contrast,commercial hunting was eliminated in the United States in the nineteenth century. Thus, there are no major interest groups with a stake in increasing hunting quotas, and therefore there is no substantial effort to manipulate a flexible legal system to weaken regulatory standards. Whether flexibility will be successful in a
{"title":"When Does Legal Flexibility Work in Environmental Law","authors":"Eric Biber, Josh Eagle","doi":"10.15779/Z38RZ9Z","DOIUrl":"https://doi.org/10.15779/Z38RZ9Z","url":null,"abstract":"Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility — reduced procedural requirements for administrative agency decision making and less rigid substantive standards — would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law.This Article examines two areas of environmental law that have historically had a great deal of flexibility: hunting law and marine fisheries law. In both areas, management and regulatory decisions are updated on a regular basis by the relevant agencies, often annually. Procedural requirements for making decisions are often streamlined. And the substantive standards that apply to agency decisions are often quite broad and flexible, leaving substantial discretion to the agency. Yet these two areas of environmental law have experienced very different outcomes in terms of implementation: fisheries management in the United States is often perceived as failing, while hunting law is seen as quite successful in achieving its goals.This Article concludes that these different outcomes are the result of the interaction of legal flexibility with two other factors: the level of uncertainty about the condition or status of the natural resource being managed and the political context for regulatory or management decisions. Fisheries management is characterized by much greater levels of uncertainty about population levels than hunting management. Moreover, fisheries are the one area in the U.S. economy where there is still a substantial commercial industry based on the capture of wildlife for human use. The combination of scientific uncertainty and flexible law creates a substantial discretionary space in which decision makers can operate. In other words, decision makers have a wide range of legally defensible management choices. The fishing industry is able to exploit this fact to argue for weaker, but still legally defensible, regulation. The industry has every incentive to organize in pursuit of this goal. In contrast,commercial hunting was eliminated in the United States in the nineteenth century. Thus, there are no major interest groups with a stake in increasing hunting quotas, and therefore there is no substantial effort to manipulate a flexible legal system to weaken regulatory standards. Whether flexibility will be successful in a ","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"787"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67544266","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":"A Brook with Legal Rights: The Rights of Nature in Court","authors":"Hope M. Babcock","doi":"10.15779/Z38H86Q","DOIUrl":"https://doi.org/10.15779/Z38H86Q","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67480873","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}
This Article examines an unexplored issue arising at the intersection of international economic law and international environmental law: How might international economic law adapt to allow states in the Global South, which are disproportionately impacted by the sudden and unforeseen impacts of global climate change, to exit or modify economic relationships that render such states more vulnerable to these negative impacts? This Article begins with an explication of the unique features of international economic law and international environmental law, and argues that the architecture of modern international economic law, which requires a certain degree of environmental stability in order to incentivize private investment, could limit a capital importing state‘s ability to respond to unforeseen environmental harm resulting from climate change. The limited solutions currently available to a capital importing state facing such circumstances, including breach, denunciation or withdrawal, could pose political, economic, and reputational costs that leave the developing state in the undesirable position of being untethered to the system of international economic law. This Article argues that climate change provides a unique opportunity to animate the moribund doctrine of fundamental change of circumstances, rebus sic stantibus, to assist states in managing the impacts of climate change within the realm of international economic law. The doctrine, rooted in equity, may provide a basis for exiting an agreement or, perhaps more desirably, renegotiating the agreement. The party invoking the doctrine must illustrate that the
{"title":"Climate Change and International Economic Law","authors":"S. H. Baker","doi":"10.15779/Z38C57M","DOIUrl":"https://doi.org/10.15779/Z38C57M","url":null,"abstract":"This Article examines an unexplored issue arising at the intersection of international economic law and international environmental law: How might international economic law adapt to allow states in the Global South, which are disproportionately impacted by the sudden and unforeseen impacts of global climate change, to exit or modify economic relationships that render such states more vulnerable to these negative impacts? This Article begins with an explication of the unique features of international economic law and international environmental law, and argues that the architecture of modern international economic law, which requires a certain degree of environmental stability in order to incentivize private investment, could limit a capital importing state‘s ability to respond to unforeseen environmental harm resulting from climate change. The limited solutions currently available to a capital importing state facing such circumstances, including breach, denunciation or withdrawal, could pose political, economic, and reputational costs that leave the developing state in the undesirable position of being untethered to the system of international economic law. This Article argues that climate change provides a unique opportunity to animate the moribund doctrine of fundamental change of circumstances, rebus sic stantibus, to assist states in managing the impacts of climate change within the realm of international economic law. The doctrine, rooted in equity, may provide a basis for exiting an agreement or, perhaps more desirably, renegotiating the agreement. The party invoking the doctrine must illustrate that the","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"43 1","pages":"53"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67447226","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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