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Volume 47, Issue 11 — November 2017


Water Wars: Solving Interstate Water Disputes Through Concurrent Federal Jurisdiction

by Catherine Danley

As climate change shifts precipitation patterns, warms seasonal temperatures, and causes severe droughts, the value of and demand for water rises. Consequently, competition for water resources is likely to increase among the states and lead to more Supreme Court original jurisdiction cases over water disputes than ever before. While the Court holds original jurisdiction under Article III of the Constitution, its exclusive jurisdiction over interstate disputes is a legislative construction, and should be altered to allow for an alternative process. Congress should amend 28 U.S.C. §1251(a) to establish an appellate process for original jurisdiction suits, so many eyes can monitor the many issues inherent in interstate water conflicts.

Decentralization and Deference: How Different Conceptions of Federalism Matter for Deference and Why That Matters for Renewable Energy

by Ben Raker

This Article poses a question about deference that remains surprisingly unresolved: when Congress delegates to both state and federal agencies under a “cooperative federalism” scheme, who gets deference when interpreting that law, the state or federal agency? This question has special significance for energy and environmental law because of how common cooperative federalism is to those fields. The Article discusses a recent series of challenges relating to the Public Utility Regulatory Policies Act that pose this question, and presents an answer: courts should consider whether Congress chose “federalism” or “decentralization,” and deference should operate differently depending on that choice.

The Role of Individual and Household Behavior in Decarbonization

by Michael P. Vandenbergh and Paul C. Stern

This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI), asks why household behavior matters for deep decarbonization, and how laws, policies, and programs that target behavior change can be employed to facilitate decarbonization. The pathways set forth in the Deep Decarbonization Pilot Project (DDPP) all presume widespread public acceptance of new policies, as well as changes in household actions that directly affect carbon emissions, mainly via consumer adoption of technologies that have lower greenhouse gas footprints. The best available research indicates that achieving the rates of adoption included in the DDPP pathways is indeed feasible; however, this will require more than policies that require change or make adoption financially attractive. The most realistic analysis of the potential for change must consider the technical potential for change, the behavioral plasticity, and the policy plasticity, or the feasibility of adopting and implementing the most commonly recommended interventions.


Carta de Foresta: The Charter of the Forest Turns 800

by Daniel Magraw and Natalie Thomure

The Forest Charter is one of the world’s first pieces of environmental and natural resources legislation and the earliest example of democratic environmental governance. The Forest Charter radically changed rights relating to Royal Forests in 13th century England, and in so doing significantly diminished the power of the king relating to forests, improved the system of forest courts that provided justice from then until modern times, converted parts of the Royal Forests into commons, returned other parts to private owners, served to mediate forest-related conflicts, and thus helped ensure sustainable forest use until the present day. This Comment explores why the Forest Charter is not as well known as the Magna Carta and why it is worth knowing about.

Energy Justice: What It Means and How to Integrate It Into State Regulation of Electricity Markets

by Aladdine Joroff

This Comment proposes a framework for evaluating energy justice, recognizing that there is not, nor need be, a uniform definition of what energy justice means or what it seeks to achieve. The authority and process for implementing this framework will differ across jurisdictions, but the Comment examines some of the questions that state legislatures and ratemaking agencies will face when integrating energy justice considerations into their regulation of electricity markets.

Back to Basics or Slash and Burn? Scott Pruitt’s Reign as EPA Administrator

by Bob Sussman

EPA Administrator Scott Pruitt describes his philosophy as “back to basics." Although Pruitt’s words suggest a renewed focus on the fundamentals of environmental protection, his actions tell a different story. Instead of doubling down on traditional programs safeguarding air, water, and land, Pruitt’s tenure has been defined by an obsessive focus on undoing the legacy of Barack Obama’s EPA. This deeply destructive approach reflects skepticism and suspicion of the value of environmental regulation, coupled with cynicism about the scientific, legal, and economic tools that have traditionally been the underpinnings of EPA’s programs. Thus, Pruitt is not preserving the “basics” of our environmental protection system, but deconstructing them.


Environmental Protection in Indian Country: The Fundamentals

by Cynthia Harris, Suzanne Schaeffer, Ethan Shenkman, and Elizabeth Kronk Warner

Tribes and Native villages are demonstrating reinvigorated environmental activism as they face new pressures on the natural resources many depend on for their economic and cultural livelihood. From the Standing Rock Sioux Tribe’s protest against the Dakota Access Pipeline, to Alaska Native villages relocating their communities in the face of rising sea levels, to impacts to the Navajo Nation from the closure of a major coal plant, there is a growing role for environmental attorneys in Indian country. Yet this field is distinct, involving matters of sovereignty, reserved treaty rights, and religious freedom. On July 26, 2017, ELI held a seminar that explored key concepts of the trust relationship between tribes and the federal government, and the role tribes and Native villages play in managing their natural resources. The discussion covered a number of the legal tools uniquely available to tribes, and the speakers provided practitioners with the fundamentals of Indian law, application of federal environmental statutes to tribal lands, and the challenges to—and opportunities for—responsibly managing natural resources in Indian country. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.