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Volume 46, Issue 1 — January 2016


Enhancing the Urban Environment Through Green Infrastructure

by John R. Nolon

This Article is adapted from Chapter Seven of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published by ELI Press. The book describes how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article follows the steady advance in the use of green infrastructure in recent years, and details its value as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing property values, and improving the livability of neighborhoods.

Monetary Rewards for Wildlife Whistleblowers: A Game-Changer in Wildlife Trafficking Detection and Deterrence

by Stephen M. Kohn

Despite the enactment of scores of wildlife protection laws, illegal activities are difficult to detect under current enforcement policies. Both the Lacey Act and the Endangered Species Act include language providing monetary incentives to persons who disclose information about wildlife crimes, but these provisions have not been effectively implemented. Given the years of delay in implementing them, Congress should step in once again to ensure that its original intent is effectuated, either through oversight of the responsible federal agencies or legislation. Drawing on lessons learned from the financial sector, implementation of the wildlife whistleblower reward laws should both encourage whistleblowers to come forward and fully explain how potential whistleblowers can obtain compensation and confidentiality protections.

Shoreline Armoring and the Public Trust Doctrine: Balancing Public and Private Interests as Seas Rise

by Serena L. Liss

Coastal landowners have an acute interest in armoring the shoreline by erecting barriers to protect their property from inundation and erosion. One problem with armoring is that the barrier potentially destroys coastal wetlands and beaches and prevents them from migrating as sea levels rise. Under the public trust doctrine, the public has the right to use trust resources and, in some states, to conservation of trust resources and the ecological services they provide. This Article examines whether coastal states have authority to take preemptive action to adapt to sea-level rise and protect intertidal zones, and whether they also have an enforceable duty under the public trust doctrine to take preemptive action. It concludes that, given the magnitude of the problems presented by global climate change and sea-level rise, the doctrine demands that states take action to protect trust resources.

Humane Society v. Jewell: The Court Cries Wolf

by Edward A. Fitzgerald

In Humane Society of the United States v. Jewell, a federal district court invalidated the Endangered Species Act (ESA) delisting of wolves in the western Great Lakes (WGL) Distinct Population Segment. This decision culminated a long history of litigation over wolves in the WGL region, and has generated a political backlash, with congressional attempts to delist wolves and to weaken the ESA itself. The author argues that the Jewell court’s analysis is erroneous on several central legal issues. As a policy matter, delisting the WGL wolves and returning them to state control should increase social tolerance of wolves, which is key to the long-term survival of the wolf.


Four Things You Need to Know About Courts’ Rejection of Clean Air Act Preemption of State Common-Law Claims

by Matthew Morrison and Bryan Stockton

In two decisions released in November 2015, Merrick v. Diageo Americas Supply, Inc., and Little v. Louisville Gas & Electric Co., the U.S. Court of Appeals for the Sixth Circuit unambiguously held that the Clean Air Act does not preempt state common-law claims brought against regulated sources of air emissions in the same state. Many practitioners and observers had expected courts to treat state common-law claims the way the U.S. Supreme Court dealt with federal common-law claims as being preempted by the CAA. In light of these decisions, emitting sources may want to factor in potential exposure to state common-law claims when reevaluating their compliance strategies.


The Morality of Market Mechanisms

by Leslie Carothers, Lucia Ann Silecchia, Bob Perciasepe, and Caroline Farrell

In Pope Francis’ Encyclical on the environment, Laudato Si’, the leader of the Catholic church presents a moral argument for combating climate change and other environmental harm. As he has done throughout his papacy, the Pope highlights concerns about economic disparity, arguing that climate change disproportionally impacts developing nations and the world’s poor. Along with critiques of “consumerism” and the modern economic system, the Pope expressed deep skepticism about the motives and impacts of market mechanisms as emissions reduction tools. The Pope is not the first to challenge the ethics of market-based systems of environmental protection. Critics have argued that buying and selling pollution rights removes the moral stigma of pollution and that inequity is built into the system by allowing the rich to buy their way out of pollution reduction regimes. Others have worried that market systems can create pollution hotspots. But many others in the environmental community, particularly in the United States, have come to see market-based mechanisms as a potent, cost-effective, and morally and legally defensible way to achieve pollution reduction goals. On October 1, 2015, the Environmental Law Institute convened an expert panel to discuss the Pope’s position, its bearing on global efforts to curb greenhouse gas emissions, and how market-based methods of pollution control serve, or fail to serve, sustainability goals. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.