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The climate is changing, and our laws and policies threaten to leave behind vulnerable communities and ecosystems. About half of the people and imperiled plants and animals in the United States are in coastal counties. Coastal communities' ability to cope with the impacts of climate change will depend on how well local adaptation and resiliency laws and policies work to protect them from rising seas, flooding, saltwater intrusion, intensifying storm activity, and increased heat indices. At the same time, these very same adaptation laws and policies may inadvertently harm vulnerable communities and biodiversity. By 2040 -- when today's kindergarteners graduate college -- Florida's population will increase by 20% and sea levels will rise an additional foot. With its low elevation and location at the end of Hurricane Alley, Florida is "ground zero" for climate change impacts in the United States. The region's struggles with industrial pollution create additional risk factors. Marginalized communities and imperiled biodiversity are caught amid climate impacts and existing, dangerous infrastructure. Florida is an apt case study for exploring concepts such as managed retreat, social vulnerability, species extinctions, assisted migration, and adaptive management. This Article concludes by making general recommendations for local governments looking to proactively center their resiliency and adaptation efforts on the survival of vulnerable communities and imperiled plants and animals. [ABSTRACT FROM AUTHOR]

The article argues that updating the U.S. General Mining Law of 1872 can help balance the increasing demand for critical minerals due to the rise of renewable energy technology and environmentally responsible mining. It explains the economic importance of critical minerals. It discusses the legal history of the mining law and environmental laws affecting the mining industry. It suggests a reformed mining law that balances environmental justice considerations and critical mineral mining.

PFAS are a family of manufactured chemicals that are highly persistent in the environment. Most people in the U.S. have been exposed to PFAS, but different groups of people may have higher exposure due to their environments. In recent years, peer-reviewed scientific studies have shown that PFAS are linked to numerous adverse human health effects. As a result, the U.S. Environmental Protection Agency (EPA) has taken a variety of actions to address PFAS, including proposing to designate PFOS and PFOA, two chemicals in the PFAS family, as hazardous substances under CERCLA, or Superfund. CERCLA is the primary legal mechanism in the U.S. for ensuring that hazardous chemicals are removed from the environment, and this designation would be a first step in protecting communities from ongoing exposure to legacy PFAs contamination. In the U.S., communities of color and low-income communities disproportionately bear the burden of pollution from private industry and the government, and PFAS are no exception. Environmental justice demands equal treatment in enforcement of environmental laws, which means that communities with disproportionately high pollution burdens should be prioritized for cleanups under CERCLA. At the same time that legacy PFAS contamination is being taken seriously at the federal level, the Biden Administration has committed to prioritizing action on environmental justice. This Note explores whether the hazardous substance designation, in combination with policies and guidance from the White House and EPA, will be sufficient to ensure prompt and complete PFAS remediation. [ABSTRACT FROM AUTHOR]

Could a trade agreement strengthen the enforcement of domestic environmental laws? This article explores this question in the context of the US–Peru Trade Promotion Agreement (TPA). The article examines, in particular, the potential role of the Secretariat for Submissions on Environmental Enforcement Matters (SEEM) of the TPA. The SEEM is an advisory mechanism to the parties to the TPA which allows citizens to bring direct submissions. This article considers the extent to which the SEEM can facilitate the enforcement of domestic Peruvian environmental law thus helping secure Peruvians' constitutional right to a healthy environment. Existing domestic mechanisms of administrative, civil or criminal law are already available to Peruvian citizens. These can apply to varied situations and provide a range of remedies, but often, they are also costly and lengthy. The SEEM began operating in 2018, and its first six submissions already hint at its potential to become a useful complement to domestic legal avenues. The SEEM could become increasingly used in the future due to Peru's prevalent institutional problems and its interest in maintaining good commercial relations with the United States. The mechanism also has the potential to provide a way to address the autonomous actions of the Peruvian Congress or its subnational governments that sometimes act in defiance of the environmental laws and regulations enforced by the executive branch of the national government. Importantly, however, citizens need to be aware of the limitations of the SEEM as a non‐adjudicatory mechanism and the fact that it is not a policymaking forum. Future research on the SEEM could provide a better understanding of how the process of increasingly mainstreaming the environment in international trade law is beginning to have concrete effects. [ABSTRACT FROM AUTHOR]

The non-regression principle is a budding international jurisprudential precept holding that legal protections of public welfare and individual rights, once established, cannot be subjected to erosive roll backs. Over the last decade, several international jurists began to apply the doctrine in the more specific context of environmental law. France has explicitly incorporated the principle by statute, while Brazil has similarly adopted it by Supreme Court decision. Implementation of environmental non-regression comes at a crucial time. The nonregression principle is a promising tool for achieving climate solutions and, given the existential threats posed by human climate disruption, implementing the principle, domestically and abroad, is of crucial importance. It is particularly critical the United States acts decisively--it is the second largest polluter on earth. An important question, then, is whether the non-regression principle could take root in the United States. This Note uses a potential methane pollution restriction as an example of how an anti-backsliding provision could realistically be made part of this nation's post-Paris Agreement efforts to limit climate change. Statutes like the Energy Policy and Conservation Act and Clean Air Act already contain limited restrictions on regression, known as anti-backsliding provisions. These are first steps, but wider implementation is necessary to achieve the goals of the 2015 Paris Agreement on climate change. Broad constitutional and regulatory adoption of the non-regression principle in the near term are likely politically impractical in the United States. A statute codifying environmental non-regression may have the necessary legal foundation to withstand political challenges in court and become a significant legal tool in achieving crucial climate and environmental protection. [ABSTRACT FROM AUTHOR]

The article examines how state jurisdiction would impact the future of climate change litigation in the U.S. Topics discussed include history of climate change litigation in the country, state common law public nuisance claims, and the first wave of climate change litigation that ended with the Supreme Court's decision in American Electric Power Co. vs. Connecticut.

Climate scientists agree that climate change will soon require the deployment of a highly dangerous geoengineering . 3, approach known as solar radiation management. Solar radiation management uses chemical or physical barriers to solar energy entering the atmosphere and thereby forces global temperatures downwards almost immediately by creating artificial shade. "Problematically, the unilateral deployment of domestic solar radiation management approaches can have different and potentially devastating effects around the world, even if they help the country deploying the approach to limit the worst climate change consequences at home. So far, there is no global governance framework that can guide the development and deployment of solar radiation management. In this Article, I develop how a networked, bottom-up governance approach can resolve the current solar radiation management global governance deadlock. I argue that such bottom-up governance must be consistent with principles of nondomination developed in civic republican and postcolonial theories of consent. I submit that the most promising way to jumpstart such a network is to lean into what appears to many as U. S. unilateralism. I argue that U.S. environmental law provides a ready model for global bottom-up solar radiation management governance coordination and collaboration in the National Environmental Policy Act and the Clean Air Act. Centrally, the Dark Sun Network provides a realistic and meaningful governance approach that can be scaled up immediately on the basis of existing law. [ABSTRACT FROM AUTHOR]

The United States signed the United Nations Framework Convention on Climate Change in June of 1992. For nearly 30 years thereafter, Congress remained gridlocked and unable to pass significant climate change legislation. During that time, the executive branch was the main forum for the development of federal climate policy, forcing the Environmental Protection Agency (EPA) to creatively reinterpret 1970s legislation to deal with climate change. The situation changed in two crucial ways in 2022: The Supreme Court's decision in West Virginia v. EPA reined in EPA's authority, and Congress finally enacted major climate legislation in the form of a multi-billion dollar tax and spending bill. These two events will shape the future of US climate efforts. [ABSTRACT FROM AUTHOR]

The United States government has indicated a desire to advance environmental justice through climate policy. As fossil fuel combustion produces both conventional pollutants and greenhouse gas (GHG) emissions, climate mitigation strategies may provide an opportunity to address historical inequities in air pollution exposure. To test the impact of climate policy implementation choices on air quality equity, we develop a broad range of GHG reduction scenarios that are each consistent with the US Paris Accord target and model the resulting air pollution changes. Using idealized decision criteria, we show that least cost and income-based emission reductions can exacerbate air pollution disparities for communities of color. With a suite of randomized experiments that facilitates exploration of a wider climate policy decision space, we show that disparities largely persist despite declines in average pollution exposure, but that reducing transportation emissions has the most potential to reduce racial inequities. [ABSTRACT FROM AUTHOR]

In taking stock of environmental and administrative scholarship for the future, one area in need of investigation is whether expert agencies are actually given the authority and tools they need to carry out their delegated assignments. We know that the political branches and courts often impose constraints on agency experts in ways that are likely to compromise the agencies' ability to fulfill their statutory assignments. But we have little understanding of how many constraints there are, how they operate, or how to think of them more generally. In our contribution to this Special Issue, we spotlight the importance of this topic for regulatory studies in the USA and abroad by mapping out the multi-faceted ways that agencies in the USA are constrained from carrying out their delegated assignments. We discover numerous and consequential constraints that are both invisible and undermine the agencies' ability to carry out their statutory mandates. [ABSTRACT FROM AUTHOR]

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global Covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so. Built into environmental legal frameworks in both international and domestic law is a principle of non-regression—no walking back environmental law, regulation, or protection once put in place. Governments and institutions at all levels ought to apply this principle in designing and implementing environmental governance, and judges, in their role of interpreting and applying the law, ought to incorporate the principle in their decisions and ensure the progressive realization of rights guaranteed by environmental law. This Article brings together a variety of expressions of the principle of non-regression in international treaties, trade agreements, declarations, and in domestic constitutions, statutes, and administrative law—within and outside the United States. Greater recognition of how this principle has worked in practice may be helpful in promoting the notion that, so long as environmental degradation continues to occur and threaten human well-being, environmental standards must continue to move forward and never look back. [ABSTRACT FROM AUTHOR]

Marine mammals are protected under dedicated taxonomic legislation, endangered species legislation, and general environmental stewardship laws in many countries. Governments and agencies within those countries are tasked with assessing and limiting human impacts in accordance with their own laws, including those arising from underwater noise emissions. While the United States (US) has established thresholds for permanent and temporary threshold shifts (PTS and TTS) in the hearing of marine mammals, Canada has not yet established specific numeric onset thresholds for hearing impairment or other noise-related impacts. Given that Canada and the US are jointly responsible for the management of a number of at-risk marine mammals, we provide a brief overview of the main laws and associated standards relevant to management of noise impacts on marine mammals in these two jurisdictions. The US PTS/TTS thresholds are only a small part of a suite of elements collectively applied to assess and mitigate the full range of impacts of noise on marine mammals, and the implementation of these (or any other) thresholds in Canada would not negate the need to conduct case-specific impact assessments to satisfy their own broader requirements. Caution should be taken when applying US thresholds to address Canadian legal standards, as there are substantial differences in the legal definitions to which these thresholds might be applied. Thus, the need for, and application of, similar generalised PTS/TTS thresholds in Canada is still under debate and noise impacts will likely continue to be assessed in different ways in these two bordering nations. [ABSTRACT FROM AUTHOR]

The article explore the need for codification of the environmentally beneficial settlement tool Supplemental Environmental Projects (SEPs) by the U.S. Congress. Topics discussed include the objectives of SEPs, the ban on the use of SEPs by the U.S. Department of Justice by issuance of the Clark Memo during the administration of former U.S. President Donald Trump, and the judicial review of the Clark Memo sought by the Conservation Law Foundation.

An estimated 29 million housing units in the United States still contain deteriorated lead paint and elevated levels of lead-contaminated house dust, over forty years after the ban on residential use of lead paint. Such "legacy" lead paint in homes built before 1978 has disproportionately inflicted irreversible, life-long health harms on communities of color and poor people. The Ninth Circuit, in A Community Voice v. EPA, held that the threshold for identifying risks from lead paint must be strictly based on health-based standards, without consideration of cost. While an important win for environmental justice advocates, the decision in A Community Voice was no panacea. The scheme for lead paint regulation in the United States is a complex patchwork of federal and local regulations with significant gaps that often enable and encourage inaction. The decision addressed the risk identification aspect of lead regulation; however, the need for lead paint abatement in U.S. homes remains urgent while a robust response remains unpromised. Further, the question persists of what role cost considerations should play in regulating toxic substances such as lead, which has no safe exposure level. This Note contends that cost-benefit analysis has fundamental flaws that could cause the government to inadequately account for health outcomes when regulating toxic substances like lead. Understanding that cost considerations are entrenched in the regulatory process, however, policymakers could embrace distributional weighting tools to better account for equity concerns in cost-benefit analyses. [ABSTRACT FROM AUTHOR]

Over the last 150 years, the United States' view of the environment has experienced significant changes. The beginning of the 20th century saw the first uses of the common law to protect the environment. The 1970s brought an increasing awareness of human effects on the environment and brought about sweeping legislation intended to protect the environment. In more recent years, however, progress has stalled. Environmental law in the United States has become a quagmire, with all three branches of government seemingly unable to find a path forward. Interweaving threads of common law and statutory law have transformed environmental law into a modern-day Gordian Knot, seemingly impossible to unravel. Attempts to pass comprehensive environmental legislation have had no success. While Congress is deadlocked, the environment continues to suffer. Environmental plaintiffs have continued to battle a reluctant judiciary, crafting increasingly nuanced methods designed to overcome precedential hurdles. The federal courts, the intended forum for national issues, are seemingly unable to adjudicate. As a result, plaintiffs have brought massive environmental suits in state courts. This wave of litigation has created a new problem: a patchwork of state judiciaries across the United States unable to agree on consistent solutions to environmental problems. Congress should acknowledge the improbability of comprehensive environmental legislation and look to history for a solution. Congress solved remarkably similar problems in the field of patent law by creating the Federal Circuit, collapsing competing jurisdictions into a single court and unifying patent law across the country. This Comment suggests Congress should create a Unified Circuit Court of Appeals for Environmental Litigation to cut through the Gordian Knot and unify environmental law across the United States. [ABSTRACT FROM AUTHOR]

Black American households are up to six times less likely to own a car than white families and are four times more likely to rely on public transportation to meet their daily needs. Despite this, communities of color have seen consistent disinvestment in their transit infrastructure. Four hundred years of continued housing segregation combined with post-recession austerity policies and ongoing pro-automobile bias has exacerbated this disparity. This Note proposes a straightforward legislative tool to begin to combat this inequity. The proposed legislation would require that urbanized areas spend their public transit dollars according to the population density of the communities a given project would serve, create reporting requirements related to the racial and economic impact of transit projects, and establish a private right of action. In proposing this legislation, this Note evaluates the state of civil rights litigation as it pertains to transportation racism and draws lessons from other areas such as environmental law in order to put forth a simple solution that would have tangible effects across the country in both the short and long term. [ABSTRACT FROM AUTHOR]

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as "Twiqbal," plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims. The current heightened pleading standard established by Twiqbal, also referred to as the plausibility pleading standard, serves as a gatekeeping mechanism that keeps environmental plaintiffs out of courts and away from justice by dismissing meritorious claims. Meanwhile, courts have repeatedly refused to apply the heightened pleading standard to defendants' pleadings, namely affirmative defenses, resulting in a split across the circuit courts. This practice aids defendants at the expense of plaintiffs by allowing defendants to adhere to a less stringent standard, putting plaintiffs on unequal footing. The standard allows defendants to make conclusory assertions, which may effectively defeat a plaintiff's case. Further, this practice increases the possibility of judicial bias because various courts across the United States apply different standards to both parties. If courts instead uniformly applied the heightened pleading standard to both plaintiffs and defendants alike and allowed environmental plaintiffs relaxed specificity requirements due to their limited access to information at the pleading stage, it could address some of the inequalities created as a result of Twiqbal. This Comment examines the impact of the heightened pleading standard on environmental plaintiffs and proposes the circuit split be reconciled. Part I discusses the massive shift to the heightened pleading standard from Conley to Twombly and Iqbal. Part II explains three main critiques of the Twiqbal plausibility pleading standard. Part III discusses the unique attributes of environmental litigation that are in conflict with the heightened pleading standard. Part IV explains the conflict between the heightened pleading standard and environmental litigation through a case study of the different ways in which courts have inconsistently applied the heightened pleading standard to plaintiffs' claims and defendants' affirmative defenses. Finally, Part V argues that courts should apply the Twiqbal standard in a consistent manner to both plaintiffs and defendants, as well as provide flexibility to environmental plaintiffs' pleadings to ensure plaintiffs have adequate access to the requisite information needed to sufficiently plead their cases and receive justice. [ABSTRACT FROM AUTHOR]

Climate change is complex during the best of times. It is commonly conceptualized as the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such measures. This conceptualization illustrates the high transaction costs involved in domestic policies as well as in international agreements addressing climate change, and it is of academic and practical interest. As such, this Article discusses the current challenges that climate change policies face, focusing on the linkages between the climate change policies of the Trump administration and the COVID-19 pandemic and on the effects of those linkages, both in the United States and globally. Specifically, this Article addresses the Trump administration's attacks on climate science and its deregulatory climate agenda, as well as the United States' withdrawal from the Paris Agreement on Climate Change. In addition, it discusses principles of international law and the challenges related to state liability for environmental harms in the context of the COVID-19 crisis. This Article also assesses how the United States' climate policies are likely to aggravate inequalities both domestically, as well as globally, in the aftermath of the pandemic. This Article offers several original contributions. First, it provides a unique assessment of how the deregulatory climate policies implemented nationally and internationally by the Trump administration have magnified the COVID-19 crisis. Second, the law and economics methodology used in this Article validates the claim that improving environmental quality is connected to optimizing early regulatory action. Third, this Article discusses the challenges of state liability for climate harms in the aftermath of the United States' withdrawal from the Paris Agreement and concurrent COVID-19 pandemic. Finally, this Article offers relevant insights for the literature on climate change that are likely to be applicable to critical future situations, whether they are health-related, a global economic crisis, or climate-related emergencies. Ultimately, this Article concludes that, in the aggregate, all such climate change policies have contributed to increased pollution, including elevated greenhouse gas emissions that have aggravated pre-pandemic inequalities embedded within the United States and among countries. Consequently, the domestic and international policy choices of the Trump administration are worsening the impact of the pandemic, particularly for those in more vulnerable positions, as well as indelibly poisoning the global commons. [ABSTRACT FROM AUTHOR]

The unequal spatial distribution of ambient nitrogen dioxide (NO2), an air pollutant related to traffic, leads to higher exposure for minority and low socioeconomic status communities. We exploit the unprecedented drop in urban activity during the COVID-19 pandemic and use high-resolution, remotely sensed NO2 observations to investigate disparities in NO2 levels across different demographic subgroups in the United States. We show that, prior to the pandemic, satellite-observed NO2 levels in the least White census tracts of the United States were nearly triple the NO2 levels in the most White tracts. During the pandemic, the largest lockdown-related NO2 reductions occurred in urban neighborhoods that have 2.0 times more non-White residents and 2.1 times more Hispanic residents than neighborhoods with the smallest reductions. NO2 reductions were likely driven by the greater density of highways and interstates in these racially and ethnically diverse areas. Although the largest reductions occurred in marginalized areas, the effect of lockdowns on racial, ethnic, and socioeconomic NO2 disparities was mixed and, for many cities, nonsignificant. For example, the least White tracts still experienced -1.5 times higher NO2 levels during the lockdowns than the most White tracts experienced prior to the pandemic. Future policies aimed at eliminating pollution disparities will need to look beyond reducing emissions from only passenger traffic and also consider other collocated sources of emissions such as heavy-duty vehicles. [ABSTRACT FROM AUTHOR]

The National Environmental Policy Act (NEPA) ushered in the modern era of environmental law. Thanks to its environmental impact statement (EIS) provision, it remains, by far, the most litigated environmental statute. Many administrations have sought to weaken the law. The Trump administration, for example, put into place regulations that strictly limit the EIS process, which the Biden administration seems poised to roll back. For the most part, however, NEPA has shown remarkable staying power and resilience since its passage just over fifty years ago. As a result, its legislative history remains relevant. But the accepted history of NEPA is deeply flawed. By bringing the history to light, this Article makes three contributions. First, relying on both original primary sources and a thorough review of the literature, we provide a nuanced and engaging history of the EIS provision, correcting common misconceptions of the accepted story. Second, we show why understanding this more accurate history of the Act's key provision can rebut major threats to NEPA and the regulations that govern it, such as those introduced during the Trump administration. Third, our granular history of NEPA provides an ideal experiment to test the accuracy of traditional canons of legislative history. We find that most canons fail to recognize the most critical aspects of NEPA's history. Positive political theory-derived canons, on the other hand, most accurately capture the actual legislative history. [ABSTRACT FROM AUTHOR]

The article informs about several court cases with emergent trends in environmental law and legal profession of Minnesota lawyer. Topics include court case New York State Dep't of Env't Conservation, et al. v. Fed. Energy Regul. Comm'n, which claims for determination on the Clean Water Act when reviewing Section 401 water quality for natural gas projects; and court case Minnesota v. Am. Petroleum Inst., which claims for the scientific consensus linking fossil fuel emissions to climate change.

Agency delay has become a chronic issue in administrative law. As Congress increasingly relies on reducing appropriations to implement its agenda, agencies have shouldered the conflicting burdens of meeting preexisting statutory deadlines for agency action, while also adhering to their newly reduced budgets. The result has been delayed agency action across a broad range of policy areas, such as environmental protection, health care, and economic policy. These delays have spurred suits seeking issuance of the writ of mandamus to enforce statutory deadlines. In adjudicating these suits, courts must navigate the tensions between the clear text of the statute, the recognition that agency resources are necessary to fulfill statutory obligations, and the presumption of judicial deference to agency decisionmaking about how to use those resources. But courts have often issued mandamus to enforce these deadlines, notwithstanding the inability of agencies to meet them. Such enforcement potentially undercuts agency prioritization and expertise, and typically is ineffective at speeding agency action. This Note argues that early to mid-twentieth-century mandamus doctrine, codified by the Administrative Procedure Act and based in principles of equity, could resolve these tensions. Courts applying the mandamus doctrine during this period considered the goals of effective governance and public administration when determining whether to issue the extraordinary writ of mandamus. Incorporating these considerations into contemporary mandamus doctrine has its challenges. But the historical perspective may encourage greater judicial restraint when issuing mandamus would have harmful public effects. [ABSTRACT FROM AUTHOR]

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets ("ERTs") is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update-a judicial doctrine that polices forward-looking statements, like ERTs, that become misleading over time-as a bulwark against unfulfilled ERTs that linger in the market and have the potential to mislead investors concerning a company's climate performance or reputation. In fact, ERTs-which convey clear expectations regarding the quantity of emissions to be reduced, the steps needed to achieve those reductions, and the timeframe of achievement-are uniquely suitable for the duty to update. [ABSTRACT FROM AUTHOR]

In this Note, I argue that advocates should not turn away from climate change litigation in their fight against climate change, even though such litigation presently has a low success rate. Climate change litigation has the potential to diminish some of the cognitive barriers that have, so far, rendered climate-related political action and movement building inadequate. These cognitive barriers include ignorance, uncertainty and risk discounting, and mistrust. The act of litigating itself, even with a hostile or noncooperative judiciary, could encourage the movement building needed to spur other branches and levels of government into action. Juliana v. United States is a high-profile piece of climate change litigation, and many advocates were disappointed by the case's dismissal for lack of standing by the Ninth Circuit. Its dismissal is often framed as a moment of reckoning for the future of climate change litigation. This Note investigates what value, if any, cases like this add to the climate change movement, even if the litigation is ultimately unsuccessful. [ABSTRACT FROM AUTHOR]

Environmental citizen suits were founded on the belief that empowering organizations and individuals to take legal action would provide a backstop against tax federal or state programs. Working in conjunction with the system of cooperative federalism, citizen suits were designed to uphold minimum levels of environmental protection and to provide a restraint on so called "races to the bottom" in which states compete for economic deuelopment by relaxing environmental standards. To our knowledge, no one has considered whether the geographic distribution of citizen suits could have the opposite effect-namely, that it reinforces rather than mitigates disparities in the leuels of environmental protection. Yet we obserue this phenomenon in data spanning two presidential administrations: citizen suits are filed in a small number of states with strong public support for environmental policies and robust state programs-not in states where policies and enforcement lag. The small number of citizen suits and skewed geographic distribution of cases reuealed by our data upend the narratiues of proponents and critics of citizen suits. Among enuironmentalists, citizen suits are lauded for their capacity to augment government enforcement and to compel lax or ideologically antagonistic administrations to take legally required action. For skeptics, citizen suits threaten the constitutional authority of federal agencies to implement the law and allow private organizations to exploit broad legislative mandates. Neither perspective is borne out by the observed patterns of litigation, which are dominated by "wholesale" litigation challenging major policies rather than "retail" litigation against private entities. In fact, retail litigation accounted for just 18 percent of the environmental citizen suits filed ouer 16 years. Taking a broad uiew of citizen suits, we find that the different statutory regimes facilitate or impede citizen suits in predictable ways. Structural limits are evident in statutes, such as the Clean Water Act, that minimize the barriers to filing citizen suits, as well as those for which the barriers are highest, such as the Clean Air Act. These limits are also evident in plaintiffs' preference for procedural claims, which accounted for almost 40 percent of the citizen suits in our dataset. These findings demonstrate the importance of the practical and structural limits of citizen suits to identifying effective reforms. The Article proposes a series of recommendations, both within and outside of the federal gouernment, designed to mitigate the inequitable distribution of citizen suits and the resource limits that so often limit access to them. [ABSTRACT FROM AUTHOR]

This work analyzes the role of the Inter-American System on Human Rights (IASHR) in handling claims concerning climate change. Specifically, I focus on the evolution of environmental protection standards within this system through a theoretical and empirical approach. After a brief overview of human rights rules and environmental law in Latin America, this article draws upon an original dataset of cases to discuss actions taken by human rights bodies to fight against climate change in this region. Based on disputes involving environmental damage and human rights violations addressed by the Inter-American Commission on Human Rights (IACHR), as well as the Inter-American Court on Human Rights (IACtHR) case law, I call attention to the importance of Indigenous activism and the evolving interpretation adopted by these bodies in regards to the link between environmental and human rights. This assessment also allows for exploring the innovations brought by the Advisory Opinion OC-23/17 ofthe IACrtH. In conclusion, I argue that this document can impact future decisions of the IASHR on the matter of environmental change. [ABSTRACT FROM AUTHOR]

The article explains changes to the U.S. National Environmental Policy Act (NEPA) in 2021. Topics discussed include the significance of the changes in light of the prevalence of federally owned land within Idaho, revised definition of major federal action affecting environmental quality, and elimination of various categories of impacts and the requirements to evaluate all reasonable alternatives.

Can the U.S. Constitution encompass a right to a stable climate? Courts around the world are finding that their constitutions afford a right to a clean and healthy environment, including to a safe climate. In the United States, this claim is being tested in the case of Juliana v. U.S., brought by 21 children arguing that governmental actions and inaction have caused or contributed to an "environmental apocalypse" in violation of a fundamental constitutional right to a stable climate. In concluding that the Constitution can encompass a right to a stable climate, we make three principal arguments. First, the Constitution is relevant to the protection of people's lives and liberties--a position that should be beyond cavil after more than 230 years of our constitutional experiment. Second, the Constitution's protection is not abrogated simply because the threat to life and liberty comes from decades of governmental action contributing to climate change. The Constitution does not have a climate change, or even an environmental, exception. And third, the federal judiciary is the body that, in our constitutional system, is best suited to hold accountable government actors when they imperil constitutional rights. Five years after it was filed, the case was dismissed by the Ninth Circuit; as of this writing, plaintiffs are considering seeking review before the U.S. Supreme Court, and settlement with the Biden Administration. [ABSTRACT FROM AUTHOR]

In view of the stalled situation in climate change lawmaking, transferring the focus from direct congressional lawmaking to delegated lawmaking by agencies may provide a new perspective to break the gridlock of federal carbon tax legislation. However, taxes are generally less delegable than environmental and other regulations. Specifically, the Internal Revenue Service and Treasury are not permitted to determine tax rates. This is also the case for environmental taxes in the Internal Revenue Code. Though some environmental statutes seem to provide some implied and untested delegation of power to regulate by taxation, the Environmental Protection Agency ("EPA") has not yet imposed any environmental taxes under such delegation. This Article argues for expanding the delegation of environmental taxes to realize their regulatory purposes and proposes to delegate the EPA the power to determine and adjust carbon tax rates. A comparative study of Chinese legislation and U.S. delegating power illustrates the need for delegating environmental taxing power. The National People's Congress of China has considered the regulatory purpose in expanding the delegation of tax rates and tax base in the new Environmental Protection Tax Law. This new law provides a valuable reference to the U.S. EPA's regulatory mission. Delegating the power to determine carbon tax rates advances the EPA's regulatory mission due to its comparative advantages of expertise in environmental policymaking, flexibility to the uncertainty, volatility of the climate change issue, and coordination of environmental policy instruments. The regulatory nature of environmental taxes weakens the distributional and transfer-of-property concern, ultimately justifying the legitimacy of environmental tax delegation. Moreover, the EPA is likely to be more responsive than Congress in producing urgently needed, but politically unpopular, carbon tax. Finally, this article concludes that the proposal to delegate carbon tax rates is constitutional based on the Origination Clause, the non-delegation doctrine, and potential non-tax-delegation doctrines. [ABSTRACT FROM AUTHOR]

The article describes some of the legal and policy approaches that have been taken to phase out and regulate perfluoroalkyl and polyfluoroalkyl substances in the U.S. They include the Perfluorooctanoic Acid (PFOA) Stewardship Program, the Toxic Substances Control Act (TSCA), and the Stockholm Convention. Also mentioned are the Safe Drinking Water Act, the U.S. Environmental Protection Agency's (EPA) health advisories, and congressional actions.

The article examines the implementation of federal environmental laws in U.S. states. Topics discussed include environmental concerns affecting human health, delegation of federal environmental health laws, and state environmental health laws that lack a federal counterpart such as California's Safe Drinking Water and Toxic Enforcement Act, Massachusetts' Toxics Use Reduction Act, and state laws regarding carbon monoxide detectors.

The article analyzes the general structure of the meat industry in the U.S., including how and why contracts are formed between large companies and farmers. It discusses the environmental liability attached to meat production and how the Farmer Fairness Act (FFA) seeks to solve the issue. A new version of the FFA that remedies the major concerns associated with different potential approaches is proposed.