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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 2017


The Impact of Climate Change on American and Canadian Indigenous Peoples and Their Water Resources

by Itzchak Kornfeld

Access to water is a fundamental climate change issue in North America and internationally. It is related to significant political, social, and ecological struggles that indigenous peoples face, and governments and courts so far have done little to address these inequities. This Article, adapted from Chapter 10 of Climate Justice:Case Studies in Global and Regional Governance (ELI Press 2016), discusses case law and international law instruments that indigenous peoples may employ to vindicate their rights, specifically the right to water, in light of global warming and the loss of their lands and way of life. It highlights indigenous peoples in Canada and the United States who live on extra-rural reservations and in remote and climate-vulnerable locations, and provides recommendations for mitigation and adaptation measures for these communities.

Planning for the Effects of Climate Change on Natural Resources

by Jessica Wentz

Climate change has important implications for the management and conservation of natural resources and public lands. The federal agencies responsible for managing these resources have generally recognized that considerations pertaining to climate change adaptation should be incorporated into existing planning processes, yet this topic is still treated as an afterthought in many planning documents. Only a few federal agencies have published guidance on how managers should consider climate change impacts and their management implications. This Article explains why these agencies are legally required to consider climate-related risks in planning processes, and presents recommendations and a model protocol for conducting this analysis.


Projecting the Future: Ninth Circuit Upholds ESA Listing for Bearded Seals

by Elizabeth A. Lake and Rafe Petersen

In Alaska Oil & Gas Ass’n v. Pritzker the Ninth Circuit upheld a rule listing two species of seals as “threatened” under the ESA based on climate change projections and associated habitat loss from reduction of sea ice. The listing rule concluded that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies endangered by 2095. The opinion allowed the extension of the “foreseeable future” time frame almost 50 years beyond any prior listing decision and reconfirmed that reliance on climate change models, even if uncertain, may constitute “best available science.” The Comment recounts the procedural and legal history of the decision, as well as the implacations of the decision in regards to future species listings.


DOJ/ENRD Symposium on The Future of Environmental Law

by John Cruden, James Bruen, Matthew Oakes, Donald Verrilli, Richard Pierce, Jody Freeman, Andy Mergen, Holly Doremus, Charles Wilkinson, Dave Owen, Joel Mintz, Michael Vandenbergh, and Robert Percival

On November 4, 2016, DOJ’s Environment and Natural Resources Division convened an extraordinary group of legal scholars and practitioners to discuss “The Future of Environmental Law.” Speaking before the presidential election but mindful of the transition possibilities, the symposium panelists identified and discussed cutting-edge issues in administrative law, natural resources law, and environmental enforcement that will be crucial going forward for both government lawyers and the environmental law profession as a whole. Here, we present transcripts of these discussions, which have been edited for style, clarity, and space considerations.