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Volume 46, Issue 3 — March 2016


Lessons From Areawide, Multiagency Habitat Conservation Plans in California

by Alejandro E. Camacho, Elizabeth M. Taylor, and Melissa L. Kelly

Through the Endangered Species Act’s Habitat Conservation Plan (HCP) program and California’s Natural Community Conservation Planning program, endangered species conservation in the United States has evolved considerably. In particular, areawide, multiagency HCPs, many of which developed in California, introduced the possibility of a more comprehensive, adaptive, and collaborative approach to conservation. Synthesizing research, interviews, and dialogue sessions, this Article aims to instruct future areawide, multiagency HCP efforts about the potential trade offs of particular design alternatives, particularly in light of emerging challenges such as climate change. It concludes that regulators and applicants must clearly engage stakeholders about the underlying trade offs among plan scale, depth, duration, cost, certainty, and efficacy to better promote effective, multijurisdictional, large-scale, and adaptive conservation planning.

National Forest Management: The Contested Use of Collaboration and Litigation

by Martin Nie and Peter Metcalf

Litigation over national forest management has received substantial attention from members of Congress who claim that “environmental obstructionists” are abusing the legal system; conversely, litigants criticize the U.S. Forest Service’s practice of collaborative management as insufficiently protective, leaving courts as the best resort. The authors review the emergence and increasing use of collaboration and some of the claims and counterclaims regarding Forest Service litigation. Through interviews with litigants, they describe prominent themes and issues, including criticism of collaboration, views about environmental advocacy, the need to enforce the law, the National Environmental Policy Act, and litigants’ other views regarding forest health, science, and restoration. The authors take issue with current congressional efforts to marginalize advocacy groups and citizens who use courts to enforce the law, but they also reject the false choice between collaboration and litigation and explain why both are necessary components of modern national forest management.


The Mythology of Mitigation Banking

by R. Kyle Alagood

Fragile but economically, culturally, and ecologically important, Louisiana’s wetlands comprise 40% of all wetlands in the United States, but its wetland loss is 80% percent of the national total. The state loses the equivalent of a football field of wetlands to the Gulf of Mexico every hour—this, despite a decades-old national policy calling for “no net loss” of wetlands. The United States has a complex wetlands-protection regime that purports to protect wetlands, but instead has resulted in irreversible destruction of natural wetlands. This Comment questions whether compensatory mitigation, particularly mitigation banking, is a viable long-term replacement for destroyed natural wetlands. Looking at the failure of mitigation banking to offset wetlands destruction in Ohio, where wetlands are relatively stable, the Comment illustrates that even in a best-case scenario where the challenges of tides, subsidence, and sea-level rise are not present, mitigation banking fails the no-net-loss objective. The Comment discusses policy and law oversight mechanisms that bear upon the success (or failure) of mitigation banking in the United States, yet concludes that wetlands mitigation is no replacement for wetlands protection in Louisiana’s vast coastal wetlands ecosystem.

Carbon Trading in China: Progress and Challenges

by Patrick Parenteau and Mingde Cao

China and the United States deserve a great deal of credit for the successful outcome at the Paris Climate Agreement talks. Their landmark 2014 agreement committing each nation to reduce emissions and promote cleaner energy sources inspired a record number of nations to submit their intended nationally determined contributions to climate mitigation and adaptation. This commitment was underscored by the joint statement issued by President Xi Jinping and President Barack Obama at the United States-China Climate Summit in September 2015, in which China announced that it will enact a national emission trading system (ETS) in 2017 covering power generation, steel, cement, and other key industrial sectors. Yet the 2017 timetable to implement a national trading system is extremely ambitious. China has yet to enact legislation authorizing a national ETS system and there are many other obstacles to overcome. This Comment will review the progress to date and identify the challenges ahead, including institutional capacity; allocation of allowances; carbon accounting; monitoring, reporting, and verification; and financial regulation to control price volatility.

Familiar Territory: A Survey of Legal Precedents for the Clean Power Plan

by Richard L. Revesz, Denise A. Grab, and Jack Lienke

A coalition of states, utilities, energy producers, and other industry groups has brought a challenge in the U.S. Court of Appeals for the D.C. Circuit against the U.S. Environmental Protection Agency’s Clean Power Plan (CPP), which limits carbon dioxide emissions from the nation’s existing power plants pursuant to CAA §111(d). (A competing cohort of states, municipalities, companies, and environmental organizations has intervened in support of the rule.) As of this writing, merits briefing has yet to begin, but the petitioners offered a preview of their arguments in a set of motions to stay the CPP pending resolution of their suit. In support of the stay requests, the petitioners filed dozens of declarations from state government officials and industry representatives, many of which made exaggerated claims regarding the “unprecedented” nature of the CPP. In this Comment, the authors highlight a wide variety of regulations from the CAA’s 45-year history that provide substantial precedent for the flexible design of the CPP.


Animal Law and Environmental Law: Exploring the Connections and Synergies

by Randall S. Abate, Elizabeth Hallinan, Joan E. Schaffner, and Bruce Myers

Environmental law, with its intricate layers of international, federal, state, and local laws, is more established than its animal counterpart. Yet animal law faces many of the same legal and strategic challenges that environmental law faced in seeking to establish a more secure foothold, both in the United States and abroad. In What Can Animal Law Learn From Environmental Law?, editor Randall S. Abate brought together academics, advocates, and legal professionals to examine the very different histories of environmental and animal law, as well as the legal and policy frameworks that bridge the two fields. On November 16, 2015, the Environmental Law Institute held a Dialogue about these critical issues. Drawing on lessons from history, politics, and law, the panelists examined how environmental law’s successes and shortcomings can inform animal law and how the two fields can work together for mutual gain in the future. They also explored important intersections between the two fields, such as concentrated animal feeding operations, agriculture and climate change, the legal valuation of nature, and other critical topics. In this Dialogue, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.