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Volume 43, Issue 8 — August 2013


The Problem of Environmental Monitoring

by Eric Biber

Environmental law depends on the regular collection of accurate information about the state of the natural environment (“ambient monitoring”) in order to assess the effectiveness of current regulatory and management policies and to develop new reforms. Despite the central role that ambient monitoring plays in environmental law and policy, the scholarly literature has almost ignored the question of whether and how effective ambient monitoring will take place—even though there is ample evidence that our current ambient monitoring data has significant flaws. Moreover, the importance of ambient monitoring will increase in the future with the shift to a new paradigm of adaptive management in which regulatory decisionmaking is kept purposefully flexible for future adjustment.

Critical Habitat and the Challenge of Regulating Small Harms

by Dave Owen

The ESA is the most important U.S. law protecting biodiversity. The Act is designed to prevent the extinction of imperiled animal and plant species and to promote those species’ recovery. To those ends, it requires the services to list species that are in danger of extinction and to designate critical habitat for those species. That critical habitat should include both occupied and unoccupied habitat with “physical or biological features . . . essential to the conservation of the species.”

The Limits of Liability in Promoting Safe Geologic Sequestration of CO2

by David E. Adelman and Ian J. Duncan

Carbon capture and sequestration (CCS) is promoted by a broad range of prominent stakeholders who assert avoiding climate change will be impossible without it. The importance attached to CCS is strongly associated with its scale. However, the advantage of the enormous scale of CCS is also a source of concern because it suggests that the risks are large as well.

A Federal Act to Promote Integrated Water Management: Is the CZMA a Useful Model?

by Barton H. Thompson Jr.

Fragmentation poses a major challenge to effective water management in the United States. The CZMA provides a potential model for national legislation promoting more-integrated water management by the states. The federal government has a strong interest in effective management. Poor water planning in one state can impact national water needs, the water management of neighboring states, and national economic markets. As in the case of coastal management, the federal government can help encourage more-integrated and effective water management by offering incentives to states that pursue integrated plans and by agreeing to comply with such plans.

Imagining Corporate Sustainability as a Public Good Rather Than a Corporate Bad

by Wendy E. Wagner

This Article argues that addressing corporate sustainability by putting the onus on corporations to assess the sustainability of their operations may get the solution exactly backwards, at least at this early stage in advancing sustainability. Rather than view the lack of sustainability efforts as another corporate bad that individual corporations should be required to redress, this Article suggests that corporate sustainability should be treated instead as a public good that becomes the government’s responsibility to address, at least initially, by advancing knowledge and generating baseline information.


A Wider View of the Impacts of Critical Habitat Designation

by Andrew J. Turner and Kerry L. McGrath

The designation of critical habitat under the Endangered Species Act (ESA) can result in significant and costly consequences for landowners, industry, government, and other entities—often with little if any evidence of a commensurate benefit to the species involved. In Critical Habitat and the Challenge of Regulating Small Harms, Professor Dave Owen provides a valuable contribution to assessing the role of critical habitat during consultation on federal agency actions under ESA section 7. Specifically, in reviewing and analyzing over 4,000 biological opinions, Professor Owen devotes substantial time and resources to developing a better understanding of critical habitat in formal consultation between agencies undertaking federal actions, such as issuing permits or rules or providing project funding, and the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the Services).

A Comment on "Critical Habitat and the Challenge of Regulating Small Harms"

by Michael Senatore

Professor Dave Owen’s insightful empirical analysis of the Endangered Species Act’s (“ESA”) prohibition on destruction of critical habitat should be useful in improving the Act’s effectiveness. The title of his paper, Critical Habitat and the Challenge of Regulating Small Harms, however, is misleading in its characterization of impacts addressed in U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (collectively “the Services”) “biological opinions.” A biological opinion is the culmination of “formal” consultation. The overwhelming majority of consultations, however, are “informal” and do not conclude with the issuance of a biological opinion. The two types of consultations are quite different.

A Modest Role for a Bold Term: “Critical Habitat” Under the Endangered Species Act

by David J. Hayes, Michael J. Bean, and Martha Williams

Each year the Interior Department’s Fish & Wildlife Service (FWS) and its sister agency, the National Marine Fisheries Service (NMFS), spend a significant portion of their limited resources—and engender substantial controversy—in identifying critical habitat for various species as required by the Endangered Species Act, 16 U.S.C. §§1531-1544 (ESA). Professor Owen has done a great service in developing and analyzing empirical evidence suggesting that both the expense and controversy may be out of proportion to the actual effect of critical habitat designations.

Long-Term Stewardship of Geologic Sequestration of CO2

by John Pendergrass

David Adelman and Ian Duncan propose to combine liability with regulation of geologic sequestration of CO2, providing a useful discussion of the relative advantages and disadvantages of each policy instrument as applied to carbon capture and sequestration (CCS). Further details of how their proposal would be implemented are essential to fully evaluating its merits and likelihood of success. The authors make a valuable contribution to interdisciplinary understanding of the technical and legal issues associated with geologic sequestration of carbon dioxide (CO2) by reviewing and explaining the scientific literature of sequestration preliminary to concluding that risks associated with the technology are misunderstood.

A Comment on "The Limits of Liability in Promoting Safe Geologic Sequestration of CO2"

by Raymond B. Ludwiszewski and Karyn B. Marsh

David Adelman and Ian Duncan provide a reality check for potential liability arising out of geologic sequestration in their article, "The Limits of Liability in Promoting Safe Geologic Sequestration of CO2." As a Research Scientist in the Bureau of Economic Geology at the University of Texas at Austin, Ian Duncan gives a much-needed scientific perspective on the material risks that geologic sequestration of carbon dioxide (“CO2”) actually poses, and using law and economic analysis, Professor Adelman, the Harry Reasoner Chair in Law at the University of Texas, adeptly translates how these risks might be mitigated through common law and ex ante regulation. Their proposed approach, new federal legislation that combines regulation and tiered-tort liability, is sensible given the technical characteristics of geologic sequestration, and
would adequately address the probable risks.