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The Paris Rulebook—nearly complete, but with the ‘markets’ text tied to Article 6 of the Paris Agreement unadopted after nearly three years—invites comparison with a similar effort under the Kyoto Protocol: the Marrakesh Accords. This article compares the Paris Rulebook and the 2001 Marrakesh Accords implementing the Kyoto Protocol as a way of exploring the similarities and differences in regulatory design between the two sub-regimes and their implications for sustainability and climate integrity. An in-depth analysis of the negotiating history and the text of the two instruments yields trenchant and perhaps unexpected conclusions. Issues that plagued the Marrakesh Accords also appear in similar form in the Paris Rulebook discussions around Article 6; however, because of the difference in structure between the two treaties, even more complex issues have arisen in the Rulebook negotiations. The article reflects on the fundamentally different purpose of the ‘markets’ text in the Rulebook in comparison with its Kyoto/Marrakesh precursor, as well as on the implications of those differences for the Article 6 negotiations.

This chapter analyzes the enormous scope of international instruments addressing hazardous substances and activities by assessing both the regulatory junctures and the specific strategies that governments rely upon to reduce risk. It begins with the challenge of identifying which substances are hazardous to human health or the environment (risk assessment) and then discusses the major treaties that regulate chemical hazards (risk management). This chapter discusses treaties and other international instruments governing chemical production, use, labelling, and disposal as well as those governing industrial accidents. It concludes with a discussion of instruments designed to promote pollution prevention and toxics use reduction.

In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act (“FWPCA”). In this case, the United States Navy violated the FWPCA by discharging munitions—a pollutant as defined by the statute—during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy’s actions, however, had no adverse effects on the area’s waters or the environment. Thus, the Court viewed the violation as only technical and allowed for an equitable resolution to an otherwise valid violation of a statute. This Comment argues that the Supreme Court’s holding was correct in allowing an equitable resolution to a technical violation of a statute.

Waterbury v. Washington came to the Connecticut Supreme Court as a dispute over water rights that could have been resolved via a number of statutory or common law doctrines. Instead, the court sought to articulate a uniform theory of riparian law in Connecticut, acknowledging all of these competing doctrines. This uniform theory was one of regulated riparianism. After articulating this standard, the court left many decisions to be worked out by lower courts. Since Waterbury was decided, those lower courts have struggled to incorporate a view that reconciles the public trust doctrine in light of Connecticut’s statutory scheme. Many of these struggles will need resolution before important public trust questions in Connecticut can be approached with a sense of certainty.

Although not as prominent in the public eye as automobile engines, emissions from non-road engines contribute significantly to global air pollution. In 2005, the United States Government fined Volvo Powertrain Corp. seventy-two million dollars for manufacturing non-road engines at its foreign subsidiary because these engines were not in compliance with emissions standards and therefore violated a consent decree between Volvo Powertrain Corp. and the federal government. In United States v. Volvo Powertrain Corp., the United States Court of Appeals for the D.C. Circuit upheld an interpretation of the consent decree and financial penalty put forth by the lower court. This Comment argues that the D.C. Circuit Court of Appeals was correct in holding Volvo Powertrain liable for the emissions violations of its subsidiaries’ engines. Volvo Powertrain subjected itself to United States jurisdiction by requesting certificates of emissions compliance from the Environmental Protection Agency for the engines manufactured abroad by their foreign subsidiary.

The first environmental case before the United States Supreme Court after the death of Justice Antonin Scalia, Sturgeon v. Frost, involved the National Park Service’s authority to regulate hovercraft use over a segment of river running through lands under its authority pursuant to the Alaska National Interest Lands Conservation Act. The plaintiff sought to show that the State held title to navigable waters within the State, and that, therefore, the National Park Service did not have authority to enforce its regulation. The parties invoked precedent and argued for textual analysis of the at-issue statute, but the United States Court of Appeals for the Ninth Circuit forged its own interpretation of the statute to find for the National Park Service. On review, the United States Supreme Court invalidated the Ninth Circuit’s holding as incongruous with the context of the statute. However, despite a sufficient record, the Court did not articulate the correct interpretation, suggesting a Court hesitant to risk plurality.

The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust protection to other important natural resources, including non-tidal and non-navigable waters, and land-based resources like parks. Courts are now considering the trust doctrine’s application to the atmosphere. Although there is a considerable body of legal scholarship on the public trust, the doctrine’s antimonopoly core has not been explored. In this Article, we remedy that oversight by examining the public trust’s justification as an antimonopoly sentiment. Antimonopoly policy is at least as old in American law as the public trust and certainly more politically prominent. Viewing the public trust through the lens of antimonopoly helps to explain the history and evolution of this doctrine and its overriding goal of preventing irreversible commitments of natural resources to private monopolization.

Microbead pollution presents a significant threat to human health and the environment. As a result, Congress enacted a national ban on microbeads in 2015. This ban is a drastic, reactionary measure that fails to address the continued threat posed by already existing pollution. In addition, the ban represents a continued preference for the command-and-control regulatory framework that failed to prevent microbead pollution in the first place. In contrast, pollution prevention, an alternative regulatory technique adopted by Congress as national policy in 1990, more efficiently prevents pollution by focusing on reducing pollution at its source. In 1989, Massachusetts became the first state to successfully implement a comprehensive pollution prevention statute and, as a result, achieved significant pollution reduction throughout the state. If it had applied to microbeads, the pollution prevention model, could have eliminated the need for a national ban and addressed the continued threat posed by already existing pollution.

Environmental statutes and regulations in the United States have largely failed to comprehensively control the human activities that cause climate change. This Note examines a novel approach to the matter in the form of an investigation led by New York Attorney General Eric Schneiderman to discover how ExxonMobil incorporates its climate change research into its corporate governance, accounting, and business planning. Schneiderman’s investigation relies on the New York securities fraud statute, the Martin Act, to determine if the company has internally reached one conclusion about climate change in its research while promoting another to investors. ExxonMobil initially cooperated with the Attorney General’s investigation, but the company has since struck back. The battle now involves two lawsuits, many cross-subpoenas, nearly half the country’s Attorneys General, and at least one federal agency. This Note chronicles the history of the Martin Act, a parallel model of litigation in Attorneys’ General attacks on Big Tobacco, and outlines the current status of Schneiderman’s investigation and parallel litigation.

The practice of hydraulic fracturing, more commonly known as fracking, risks a number of dangerous environmental consequences. Notably, fracking operations can contaminate the underlying water table. Contamination of groundwater can disrupt the access of a nearby property to both potable drinking water and viable commercial irrigation. Usually, when a fracking operation results in this kind of groundwater contamination, affected plaintiffs sue the operator of the rig. This Note proposes that similarly situated plaintiffs also name a new defendant in these actions: the state agency that granted the fracking permit. The governmental actor could bear liability under a constitutional theory of inverse condemnation. Where contamination interferes with an individual’s use and enjoyment of property, the government actor bears responsibility for orchestrating the activity that caused the interference. In short, the government should be more discerning when granting permits to frack, because it can be held financially responsible for the fallout.

The Paris Agreement, which was adopted in December 2015 and entered into force less than a year later, is the newest instrument to be adopted in the United Nations-sponsored global climate regime. The Paris Agreement takes its place under the 1992 Framework Convention on Climate Change and next to the 1997 Kyoto Protocol and 2012 Doha Amendment. After describing the historical evolution of the UN climate regime employing the tools of international law, this Article explores the structural, institutional, and legal relationships between the new Paris Agreement and the prior development and content of UN-sponsored efforts on climate protection under the auspices of the 1992 Framework Convention. The need for such an analysis is particularly urgent because the new instrument was purposely not identified as a “protocol,” and its relationship to the prior Kyoto Protocol is unclear. This Article consequently traces the development of the universal, UN-anchored climate regime from its origins in the 1990s to the present moment, with particular attention to the structural relationship among its various components and historical junctures. The Article then examines the text and structure of the Paris Agreement, along with its context, against this background. The significance of the Agreement’s status as an instrument other than a “protocol,” and its uncertain textual and institutional relationship to the prior Kyoto Protocol, receive particular scrutiny. The Article concludes that the Paris Agreement, from a structural and institutional point of view, represents both a break with the past designed to initiate a new, globally-inclusive multilateral approach to climate protection, but also contains indications of continuity with prior questions of global climate policy.

Climate change has negative implications not only for the environment, but also for human health. Human greenhouse gas (“GHG”) emissions are a major contributor to climate change and therefore we must curb our behavior to save the planet and ourselves. Following the economic principle of the First Law of Demand, a carbon tax incentivizes polluters to reduce emissions by increasing the cost of emission producing goods. British Columbia has demonstrated that carbon taxes are effective mechanisms to curb GHG emissions. Massachusetts, therefore, has proposed a carbon tax to help achieve its established GHG reduction goals. In addition, the Commonwealth’s proposed tax also aligns with the national goal of making health care coverage more affordable and accessible. In fact, the carbon tax’s employment-based redistribution scheme is predicted to benefit hospitals by leaving them with a net financial gain. Thus, Massachusetts’ proposal would simultaneously benefit two national goals: slowing global warming and minimizing health care costs.

International law does not provide an adequate enforcement mechanism against illegal whaling. The Japanese government claims that its whaling practice falls within the scientific research exception of an international moratorium on commercial whaling. Despite an International Court of Justice ruling finding that its practice does not fall within this exception, Japan has continued to kill thousands of whales each year with no effective opposition. The area in which this whaling occurs, however, falls outside the jurisdiction of any nation. Although the United Nations Security Council has the authority to act, the delicate nature of international diplomacy effectively ties its members’ hands on this matter. To fill this void, the International Whaling Commission should amend the International Convention for the Regulation of Whaling to include a provision allowing for enforcement of the moratorium by approved non-governmental organizations. Should this amendment pass, the needless slaughter of thousands of whales each year could be prevented.

The exploration and exploitation of marine genetic resources for commercial purposes is growing at an unprecedented rate in the Arctic region. Currently, there is no explicit legal framework that governs the participation of Arctic indigenous peoples in this industry or requires that the benefits derived from the scientific use of marine genetic resources are shared with these groups. This Article analyzes to what extent the principles of free, prior, and informed consent and of fair and equitable benefit sharing are considered in relevant international instruments. The United Nations Convention on the Law of the Sea is not sufficient to frame this international issue. Therefore, this Article pays special attention to the scope of indigenous people’s rights as outlined in the International Labour Organization’s Convention (No. 169) Concerning Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples. This Article incorporates those principles of consent and benefit sharing into the international framework governing the use of biodiversity materials, through the Convention on Biological Diversity and the Nagoya Protocol.

Citizen plaintiffs play a vital role in the enforcement of the Endangered Species Act (“ESA”). In Strahan v. Roughead, the United States District Court for the District of Massachusetts opened the possibility for expansion of a citizen’s ability to impose its own policy preference upon federal agencies working to comply with their statutory requirements under the ESA. Although the District Court properly denied the defendant’s motion to dismiss on the basis of mootness, it erred in its rationale. A plaintiff’s claim under the ESA may survive a mootness challenge, even after the violating agency has reinitiated consultation with its overseeing agency, if the potential for relief on alternative grounds remains. Valid alternate bases for relief include award of an injunction when a compliance plan does not encompass the full range of an agency’s activities, or when an agency fails to demonstrate compliance with an existing plan. A citizen’s mere suggestion that an agency’s compliance plan adopt alternate protective measures, however, should not extend the life of an otherwise moot claim.

Climate change has already impacted the planet in a number of ways. Perhaps most apparent, however, is climate change’s effects on the frequency and intensity of storms, droughts, and other major geologic and weather-related events. Such catastrophic events have also lead to significant loses by individuals and businesses alike. In particular, many corporations in areas most vulnerable to these sorts of catastrophes must adjust their corporate strategies to account and to prepare for the possibility of significant losses of property or business resulting from the effects of climate change. Some corporate boards, however, might be reluctant to take every step possible to protect the corporation against climate change related catastrophes due to the significant cost of doing so. As such, some shareholders might be unnerved by a board’s inaction on this matter, perhaps resorting to litigation against the board. This Note analyzes the potential success of such a shareholder claim, as well as the alternatives available to a climate-conscious shareholder.

Recently, increased attention to the care that captive orcas receive at marine life parks has sparked a call for reform of the public display industry. In the face of this public outcry the nation’s leading marine life park, SeaWorld, recently announced a shift in company policy that will eventually end the practice of holding orcas in captivity. This, though, does not signal the end of problem. Many other animals face problems that are analogous to the exact issues that sparked change for captive orcas. This note will argue that broad reform of captivity standards are necessary and should include greater protections for all captive animals.

Algae blooms and unsafe nitrate levels caused primarily by nutrients in runoff from agricultural and urban areas plague waterbodies across the United States. The nutrient pollution problem can be effectively addressed through the development and implementation of appropriately scaled watershed plans. To encourage needed planning and implementation, the Environmental Protection Agency and states must utilize an improved watershed policy approach. For decades, such an approach has been stymied by a nebulous watershed concept and legal, political, and financial obstacles. This article provides an in-depth look at policies that provide the foundation and framework for watershed planning and implementation in Wisconsin, makes concrete recommendations for Total Maximum Daily Load, urban stormwater and agricultural runoff programs, and discusses model watershed plans and case studies. Through improved policies that catalyze appropriately scaled watershed planning and implementation, it may be possible to avoid costly litigation and ineffective regulatory or large-scale TMDL approaches.

The Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer is a pivotal development in global cooperation to stem climate change. Through incorporating hydrofluorocarbons into the Montreal Protocol, the international community will be able to combat the deleterious effects of a common, yet potent, chemical. Nonetheless, the United States and its fellow parties will likely have to combat an illicit trade in these banned substances in the immediate future. Through lessons learned from the original Montreal Protocol, the United States can effectively combat smuggling and ensure the Kigali Amendment’s success.

In Montana v. Crow Tribe of Indians, the United States Supreme Court declined to award the Crow Tribe of Indians disgorgement of coal taxes collected by Montana from a mining company with operations on the Tribe’s reservation. The Supreme Court justified its decision by distinguishing the 1939 Montana Supreme Court case Valley County v. Thomas, referencing the precedent set by Cotton Petroleum Corp. v. New Mexico, and noting that the Tribe lacked the necessary approval to tax from the Department of the Interior. This Comment argues that the Supreme Court should have granted the Tribe full disgorgement, partial disgorgement, or compensatory damages.

The United States' position in, and conduct of, the negotiations leading to the Paris Agreement, as with almost all international diplomacy leading to reciprocal international undertakings conducted by that country, reflected not only internal politics, but also the constraints of domestic law. The United States is not unique in this respect, but it is unusual in the extent to, and manner in, which its municipal law constrains the creation of international commitments. This article disaggregates US international and domestic climate policy as it developed prior to the Paris negotiations and analyses how those dynamics played out on the multilateral stage, influencing the shape of the Paris Outcome even to the name of the instrument. Among the subjects analysed are (1) the extent of the Executive's powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement on limiting emissions of climate-disrupting gases; (3) domestic implementation of the US INDC; (4) executive agreements as vehicles for undertaking internationally legally binding commitments on climate; and (5) the role of the courts.

In the United States, most laying hens are routinely subjected to cruel treatment and forced to live in such extreme confinement that they are unable to fully extend their limbs or turn around. In 2008, California took a stand against these inhumane practices by enacting the Prevention of Farm Animal Cruelty Act, also known as Proposition 2, which banned the use of inordinately small “battery cages” to house laying hens. In 2010, California passed an amendment to Proposition 2, requiring all eggs sold within California, regardless of where they are produced, to comply with the new law. Other states have followed California’s lead, passing and implementing state laws that begin to offer some minimal protection to laying hens and other farm animals. The vast majority of states, however, have not followed suit and federal legislation provides abysmally little protection for these animals. This Article argues that there is an ethical obligation—and there should be a legal obligation—to ensure the humane treatment of farm animals. This Article goes on to suggest a framework for new federal legislation to govern the confinement and humane treatment of farm animals.

In the mid 1800’s, the California gold rush ushered in a new era of industry to the farming communities of the Sacramento Valley. This influx of people, capital, and technological innovation also brought with it significant pollution that nearly destroyed the agricultural value of the region. After decades of being inundated with debris cast off by the gold mining encampments operating upstream, local landowner Edward Woodruff brought suit seeking to enjoin the mining companies from discarding their debris into the area’s waterways. The decision that followed brought gold mining in the region to a halt and set the stage for the federal government to enter the field of environmental regulation. Though Woodruff v. North Bloomfield Gravel Mining Co. has largely been ignored, it marks a significant step toward the regime of environmental regulation that we know today.

In Edwards Aquifer Authority v. Bragg, the Court of Appeals of Texas, San Antonio held that the Edwards Aquifer Authority’s water well permitting plan amounted to a compensable taking of a pecan farmer’s private property. The court determined that the water regulation was so onerous that it was analogous to physical seizure of property by eminent domain. In its analysis, however, the court fatally misapplied the multi-part Penn Central test. The court implicitly framed the four Penn Central factors as elements instead of utilizing a more appropriate holistic balancing test. Framing the test in such a way improperly stacks the deck in favor of the private interest. If other courts adopt the Bragg version of the Penn Central test, “regulatory takings” will expand beyond their reasonable bounds as a cause of action and disastrously undermine states’ ability to implement environmental regulation.

Title XVII of the Energy Policy Act of 2005 (the “Act”) authorizes the Department of Energy (“DOE”) to provide loan guarantees to nuclear energy projects that avoid, reduce, or sequester greenhouse gas emissions while employing new or significantly improved technology. The agency’s decision to include uprates—projects that increase the amount of power an existing reactor produces—among those nuclear projects that may apply for a loan guarantee should survive a legal challenge under the deferential standard laid out in Chevron. A court should defer to the DOE’s interpretation of the Act because Congress failed to express its unambiguous intent regarding which types of projects qualify for the program, and the agency’s interpretation reflects a permissible construction of the statute. Consistent with Congress’s goal of combating global warming and climate change, the DOE’s interpretation of Title XVII encourages the growth of America’s commercial nuclear capacity in an effort to reduce reliance on fossil fuels to generate electricity.

Transnational illegal logging, especially logging of protected species within protected areas, causes many irreparable harms, including decreasing biodiversity, increasing carbon emissions, deforestation, and economic and social harms to the communities where the illegal logging occurs. The United States is one of the world’s largest consumers of wood products and thus drives the illegal logging industry far beyond our borders. Illegal logging is facilitated by corruption and bribery within many contexts, including bribes from those engaged in illegal logging to police, officials, regulators, and customs and export officials who are entrusted with the task of preventing illegal logging. No existing methods have succeeded in combating the flow of illegally harvested timber into the United States timber market. This Note suggests that the recently amended Lacey Act, which is intended to be used in illegal logging prosecutions, is not suited for this purpose, as its terms have been interpreted and defined through years of litigation in the wildlife trafficking context. This Note argues that the Department of Justice should begin using the Foreign Corrupt Practices Act’s (“FCPA”) anti-bribery provisions as an alternative method to prosecute those engaged in illegal logging. The expansively drafted FCPA is the perfect tool, as it can be applied to a wide range of actors and conduct that facilitates illegal logging.

On a sunny summer day in 2014, Drakes Bay Oyster Company closed its doors to the public, admitting defeat in a years-long fight with the Department of the Interior over the renewal of its operating permit. The Secretary of the Interior believed that the region’s designation as “potential wilderness” under the Point Reyes Wilderness Act, along with public policy considerations, obligated him to decline renewal of the permit. In producing an Environmental Impact Statement regarding the impact of closing the farm, the Secretary procedurally insulated his agency decision from later judicial review in Drakes Bay Oyster Company v. Jewell.

Horizontal severance deeds separate property above and below the surface of land. In such deeds, typically the property rights below belong to mineral owners while property rights above belong to farmers. In most states, common law trespass utilizes what is generally known as the reasonable necessity doctrine to account for the rights that each owner has to enjoy in connection with his respective property. This doctrine has evolved over time and establishes the degree of surface damage that mineral owners can cause in accessing minerals below without becoming liable to the surface owner for damages. Recently, West Virginia made its standard more rigorous by prohibiting mineral owners from substantially burdening the surface estate. If other mining states like Texas and Pennsylvania were to incorporate West Virginia’s heightened standard into their respective doctrines, then the farming industry may receive greater national protection. And, since farming is currently thriving, heightened protection may even lead to greater national economic growth.

In the United States and around the world, animals exploited for human use suffer cruel and needless harm. The group bearing the brunt of this exploitation— agricultural animals—is routinely exempted from the largely ineffective and rarely enforced animal welfare and anti-cruelty regulations that exist today. This Article offers a comparative analysis of the agricultural animal welfare regimes of two countries with globally significant presence in the agriculture industry: the United States and Brazil. Even though the two countries approach agricultural animal welfare differently, they arrive at the same outcome: institutionalized indifference to animal suffering. To remedy the current regulatory structure, this Article proposes the creation of an independent federal agency— The Animal Welfare Agency (“AWA”)—to regulate the safety and welfare of all animals, including those used in agriculture. The AWA could significantly reduce systemic animal cruelty in both the United States and Brazil and represent an important step toward inserting morality and ethics into our relationships with animals.

Current levels of greenhouse gases will result in significant sea level rise in the future, irrespective of the success of any future mitigation efforts. Paleoclimate and geologic data from past periods of rising sea level show that low lying areas, especially river deltas which are home to half a billion people, will be inundated. The best way to represent this risk through insurance is to apply the human-life insurance model to coastal property insurance. Human-life insurance is based on the assumption that every insured will die. Because the risk of death increases with age, the cost of insurance increases with age. Property-life insurance assumes that coastal properties will be lost at an unknown future date determined by the rate of sea level rise and patterns of catastrophic storms. As with human-life insurance, premiums would increase on a regular schedule through time. This predictable premium increase would create a powerful risk signal to incentivize adaptation.

Extraction of natural gas through hydraulic fracturing poses a significant risk of harm to human health and the environment. West Virginia, like many states that lie above vast oil and gas resources, grants expansive implied property rights to owners of subsurface mineral estates. In Whiteman v. Chesapeake, L.L.C., the United States Court of Appeals for the Fourth Circuit held that a hydraulic fracturing company’s construction and use of drilling waste pits on the surface of another’s property did not constitute a trespass under West Virginia common law because it was reasonably necessary for the recovery of natural gas and did not impose a substantial burden on the surface property. This Comment argues that the court’s decision misapplied a common law standard to a unique set of facts and, as a result, has significantly diluted the protections afforded to individual landowners. The court should have determined that a permanent disposal of waste on the surface of another’s property exceeds the implied rights of mineral estate owners because such a use is not necessary. In addition, even if the court had found that such a disposal was necessary, it should have concluded that permanent disposal of waste was not reasonable.

In 2005, the U.S. Environmental Protection Agency (EPA) issued regulations pursuant to the Clean Air Act requiring states to submit plans to address visibility impairment due to air pollution. The regulations directed states to consider installing emissions controls at certain stationary sources according to five factors, including the cost of compliance. In Oklahoma v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the Tenth Circuit held that EPA lawfully rejected Oklahoma’s plan because the state plan failed to follow EPA-promulgated guidelines when determining the cost of compliance factor. This Comment argues that the outcome in Oklahoma was correct, however, the court did not apply the appropriate standard of review. The appropriate standard of review was to determine whether the state plan was reasonable and in compliance with the statute and EPA guidelines. EPA rightly rejected Oklahoma’s plan because the plan failed to comply with the EPA regulations on cost of compliance calculations.

Derived from ancient Justinian and English common law, the “public trust doctrine” vests ultimate and inalienable ownership of certain tracts of land in the state. Many states have incorporated some variation of the public trust doctrine into their statutes, constitutions, or common law. The application of the public trust doctrine, however, has been challenged as constituting a Fifth Amendment regulatory taking of private property under the United States Constitution, giving rise to the need for just compensation. This type of application of the public trust doctrine was at issue in the nearly decade-long saga culminating in the decision of Palazzolo v. State. The case featured an owner of marshland property who sought compensation for Rhode Island’s denial of his repeated development requests. The Rhode Island Superior Court in Palazzolo ultimately held that the state’s denial of the landowner’s requests did not constitute a regulatory taking. This Comment analyzes the role that the public trust doctrine played in the court’s weighing of the various factors in a regulatory takings analysis. Further, this Comment argues that the public trust doctrine, as applied in Palazzolo, represents a tremendously powerful means for states to set aside publically valuable swaths of land, a means capable of withstanding even a constitutional challenge.

There are no robust insurance markets for climate change insurance. While these markets would provide valuable loss-mitigation incentives, at the same time giving financial certainty to individuals and businesses that face staggering future liabilities, existing efforts have produced a fragmented set of private and public products that provide only piecemeal coverage. This Article examines the government’s role in providing unified markets for insuring climate change risk. Although innovations in reinsurance markets suggest that private insurers could cover discrete risks associated with climate change, such as flood or wind loss, climate change’s broader systemic risks present problems of scale and scope that public insurance is better positioned to handle. This Article draws lessons from existing insurance programs to show both why purely private insurance would be inappropriate for a robust climate change insurance market, as well as how a nationally provided insurance program could be designed to avoid past problems.

Climate change is exacerbating the frequency and severity of catastrophic weather events around the world. The economic impact of these events on developing countries can be severe, and roll back years of development gains. To help face this growing challenge, the governments of developing countries need improved access to insurance and alternative risk transfer mechanisms to manage their exposure to climate risk. Multilateral development banks, such as the World Bank, can help. For example, they can catalyze the creation of sovereign risk pools and facilitate access for developing country governments to the substantial reinsurance capacity of the capital markets. The World Bank’s role in creating the Caribbean Catastrophe Risk Insurance Facility, and the World Bank catastrophe bond issue in 2014 for that Facility, serve as models for this kind of assistance. In order to maximize the developmental impact of these kinds of interventions, donor governments, acting through multilateral development banks, should encourage beneficiary countries to invest in ex ante climate risk preparedness and resilience as a condition of receiving this kind of development assistance.

The federal crop insurance program is well-positioned today to promote resilient agricultural practices that mitigate the future impact of climate change. In light of climate change risk, this Article examines issues relating to climate change and the federal crop insurance program. Part I of this Article examines the present risk of climate change in agriculture and discusses recent steps taken to address climate change in agriculture in general, specifically within the federal crop insurance program. As a condition to federal crop insurance coverage, a farmer-insured must utilize “good farming practices” to obtain coverage for covered causes of loss. Part II examines the role of “good farming practices” determinations and its effects on climate change. This Article addresses three cases decided within the past five years and contends that the increasing number of cases in the federal courts indicate that an amendment to the “good farming practices” standard may have a significant effect in promoting climate change mitigation. This Article concludes by proposing an amendment to the “good farming practices” standard. The proposed standard dictates that if a farmer utilizes “sustainable, resilient and soil-building agricultural practices,” then such utilization must be weighed as a substantial factor in support of a “good farming practices” determination by the Risk Management Agency.

This Article addresses a central question of climate adaptation in the United States: how can municipalities, which are best positioned to take a lead in climate change adaptation efforts, be incentivized to do so? The Article analyzes and ultimately rejects as doctrinally unmoored and counterproductive one idea that has been suggested by commentators and arguably endorsed in a few noteworthy recent cases—that is, that municipalities and other governments be held liable under the Takings Clause for their failing to take adaptive measures that protect private property. Instead, the Article argues that municipalities should be given an incentive to adapt by means of modifications in federal aid programs that in effect would require the municipalities to obtain private insurance against climate-change-related damage to public property and infrastructure. This proposal, if adopted, would be a salient first step toward the transformation of federal policy from one that actively discourages private adaptation to changing patterns of extreme weather and sea level rise to one that actively encourages such adaptation.

Climate change is one of the most fundamental challenges of our time. The extraordinary growth of greenhouse gas (“GHG”) emissions in China represents the single greatest obstacle to global climate change efforts in the coming decades. Meanwhile, China suffers from the adverse consequences of climate change. It has been recognized that two factors may increase climate change risks: (a) the increase in GHG emissions, which will increase the frequency and intensity of climate hazards; and (b) the increase of value-at-risk, such as the increased concentration of the world’s population and property in vulnerable areas. Therefore, mitigation of climate change risk involves not only human intervention to reduce GHG emissions but also prevention of potential losses caused by climate hazards. Among many solutions to risk mitigation, insurance has received increased attention due to its expertise in risk management and regulatory function in influencing policyholders’ behavior. This Article examines the ability of two types of insurance—liability insurance and catastrophe insurance—to regulate and thus help mitigate climate change risks, and considers the potential lessons for China.

On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly published a final rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” to clearly delineate how the Clean Water Act protects streams and wetlands. The new Waters of the United States rule (“WOTUS Rule” or the “Rule”) abrogated the previous definition of waters of the United States under Clean Water Act jurisdiction. To the great displeasure of many private landowners, the Rule entered into effect on August 28, 2015. In particular, several critics have argued that the new WOTUS Rule’s regulation of “other waters,” its definition of “adjacent,” and its expanded construction of the term “tributary” violate the Commerce Clause of the U.S. Constitution. Examining select, representative challenges by the National Association of Homebuilders, the Kansas Livestock Association, and the National Cattlemen’s Beef Association, this Note argues that those three features of the new WOTUS Rule do not, as alleged, contravene the Commerce Clause. As a matter of Commerce Clause jurisprudence, the new WOTUS Rule is a legal tool to aid the federal government in its fight against the degradation and pollution of our nation’s waters.

In 2007, the United States Army Corps of Engineers granted Mingo Logan Coal Co. a permit to discharge dredge and fill material into four West Virginia streams and their tributaries. The U.S. Environmental Protection Agency (EPA) did not file an objection despite concerns about the discharge’s environmental impacts. Two years later, EPA moved to withdraw the permit in light of new information and circumstances regarding the discharge’s impact on wildlife. EPA claimed that it was authorized to withdraw the permit under Section 404(c) of the Clean Water Act, which provides the Administrator of EPA with the authority to veto specification sites “whenever he determines” a discharge will have an “unacceptable adverse effect” on identified environmental resources. Mingo Logan appealed EPA’s permit withdrawal on the grounds that EPA exceeded its authority under the Clean Water Act. The U.S. Court of Appeals for the District of Columbia upheld EPA’s authority to retroactively withdraw the permit. Although the court’s decision has sweeping implications for the reach of EPA, this Comment argues that such broad administrative authority is justified by the plain text of the Clean Water Act and the need for the federal government to take immediate action during environmental crises.

The Atlantic coastline of the United States is experiencing sea level rise at a rate higher than the global average. Antiquated property laws and land use tools are unable to adequately assist state and local governments in managing coastal regions, in light of this threat. Rolling easements—prohibiting hard shoreline armoring and requiring the movement or abandonment of property once it becomes inundated by the sea—would allow for the natural inland migration of invaluable coastal resources such as beaches and wetlands. Further, enacting rolling easement polices would be a proactive step towards providing ocean-front property owners with notice of the necessarily finite nature of their property rights. In the long-term, such a policy would prevent future costs from emergency response needs, legal battles, and the loss of natural and economic benefits from coastal resources. Because the public already has a cognizable legal right in the coastline from the public trust doctrine, enacting a rolling easement policy to protect that legal right would not constitute a regulatory taking of private property. Sea level rise poses a particularly immediate threat to North Carolina and Virginia, therefore, this Note suggests that both states could benefit from enacting a rolling easement policy.

In January 1993, the U.S. Fish & Wild Life Service (“FWS”) added the delta smelt, a small, silvery blue fish, to the Endangered Species Act’s (“ESA”) list of threatened wildlife. Species on the list are entitled to the ESA’s protections. In Natural Resource Defense Council v. Jewell, the Natural Resource Defense Council (“NRDC”) brought an action against the Bureau of Reclamation (the “Bureau”) for violating Section 7(a)(2) of the ESA, the consultation requirement, to protect the delta smelt. The consultation provision required the Bureau to consult with the FWS before it renewed contracts that controlled water rights in the delta smelt’s habitat. To use the ESA’s citizen suit provision, a plaintiff must establish Article III standing. The NRDC was able to satisfy all three elements of Article III standing: injury in fact, causation, and available redress. The United States Court of Appeals for the Ninth Circuit found that a non-governmental organization could have Article III standing to challenge a federal agency’s violation of the ESA consultation requirement. This Comment argues that the Ninth Circuit properly reasoned that redress could be available before a listed species suffers actual harm, thereby providing species with protections guaranteed by the ESA.

In Natural Resources Defense Council, Inc. v. County of Los Angeles, the U.S. Court of Appeals for the Ninth Circuit addressed the issue of National Pollutant Discharge Elimination System (NPDES) permit violations under the Clean Water Act. Environmental organizations brought suit against the County of Los Angeles and the Los Angeles County Flood Control District after the District published monitoring station reports identifying 140 separate exceedances of permit limitations. Even though the defendants’ monitoring station was located downstream from other permittees, the defendants were held liable as a matter of law for the violations because the permit clearly stated that the monitoring station data would be used to determine permittee compliance. This Comment argues that the Ninth Circuit’s analysis was correct, and further that preliminary testing for the monitoring station as well as more frequent monitoring and reporting will clarify liability.

The financial costs of extreme weather are profound, not only in terms of the distress of those immediately affected but also in broader, more long-term macroeconomic and public budgetary effects. This Article focuses on the role that private and public insurance can play, both positively and negatively, on these effects. It also provides one of the most detailed analyses in the legal literature to date on the finances of three state residual-risk wind pools in the Gulf and Southeastern United States that have been created specifically with hurricane risks in mind.

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States' becoming a party to a binding agreement to be adopted at the 21st Conference of the Parties to the UN Framework Convention on Climate Change, which is to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, the President's Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with the Congress either before or after its conclusion.

By the early 1980s, the population of the straight-horned markhor—a large, shaggy goat with impressive spiraling horns native to the mountains of Pakistan—had dipped so low that the U.S. Fish & Wildlife Service (“FWS”) classified it as endangered. But when a group of conservationists and hunters petitioned the FWS to have the animal reclassified from an endangered species to the lower protection level of threatened pursuant to the Endangered Species Act species protection regime, they were largely ignored. The group then sued the FWS in federal court to compel the Agency to perform its statutory duty. In Conservation Force, Inc. v. Jewell, the U.S. Court of Appeals for the D.C. Circuit ultimately denied the group judicial relief because, while the case was pending appeal, the FWS finally performed its duty. This Comment argues that although the FWS’ well-documented funding problems may have contributed to this delay, the agency could have addressed the merits of the plaintiffs’ petitions when they were made, rather than fighting through years of expensive litigation.