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Volume 47, Issue 4 — April 2017


Judicial Review Endangered: Decisions Not to Exclude Areas From Critical Habitat Should Be Reviewable Under the APA

by Damien M. Schiff

Under the ESA, areas that otherwise qualify as critical habitat “may” be excluded from a designation if the government determines that the benefits of exclusion would outweigh the benefits of inclusion, and if the exclusion would not result in the species’ extinction. Federal courts have uniformly held that a decision not to exclude an area is immune from judicial review under the APA, pointing to that Act’s bar on judicial review of agency action “committed to agency discretion by law.” But contrary to the case law, application of this bar should not depend on whether Congress has enacted permissive statutory language; instead, it ought to depend on the nature of the administrative action itself. If an agency action falls within a category traditionally held to be immune from judicial review—for example, official immunity or political question—then the bar should apply. Applying this understanding to the ESA, decisions whether to exclude an area from critical habitat should be reviewable, at least for conformity with the Constitution and basic principles of rational agency decisionmaking.

Beyond Zero-Sum Environmentalism

by Shalanda Baker, Robin Kundis Craig, John Dernbach, Keith Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Jim Salzman, Inara Scott, and David Takacs

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment;” “markets versus regulation;” “enforcement versus incentives.” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with jobs or economic progress. In this series of essays, the authors explore the meaning and the role of zero-sum environmentalism as a first step in moving beyond it.

Legal Challenges for “Leaving It in the Ground”: Touchstone Developments and Holdings

by Steven Ferrey

As renewable energy becomes more cost-effective, there are increasing calls to leave traditional fossil fuel resources “in the ground.” But our ability to do so is constrained both by current technology and by the existing legal and policy structure. This Article examines the improvements in renewable energy technologies and their limitations and economic implications and discusses the challenges facing federal and state attempts to mandate and encourage renewable energy as a result of recent federal court and agency decisions. The author concludes that the main challenge to “leaving it in the ground” is not technological but legal in nature, due to injunctions of proposed federal programs, the states’ loss of regulatory authority from preemption and Commerce Clause rulings, and the uncertainty surrounding federal policy going forward.


National and Multinational Strategies for Radioactive Waste Disposal

by Kerri Morrison

Today, nuclear technology is used in a variety of applications, including energy, medicine, research, and agriculture. These applications produce waste that is radioactive and, therefore, harmful to humans for a certain period of time. Radioactive wastes are generally sorted into three categories based on how radioactive the waste is: low-level waste; intermediate-level waste; and high-level waste (HLW). The storage and disposal of HLW poses a challenge because of the level of radiation emitted from this waste and/or the longevity of the radiation. This Comment examines the nuclear disposal plan of four leading nations as well as international structures and organizations that regulate or impact nuclear waste disposal. Further, it explores the concept of creating multinational repositories for HLW.


Ocean Policy and the Trump Administration

by David Roche, Addie Haughey, Mike LeVine, Pete Stauffer, Xiao Recio-Blanco, Laura Cantral

Each presidential election brings the possibility of large-scale changes in environmental policy. Pres. Donald Trump has not explicitly laid out ocean policies for his new administration, but he has provided some clues; these policies ultimately will be important for the ecological and economic health of the United States and the world. On December 9, 2016, ELI convened a panel of experts to discuss some key ocean issues that the Trump Administration will face. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.