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Volume 48, Issue 10 — October 2018


Castles—and Roads—in the Sand: Do All Roads Lead to a “Taking”?

by Thomas Ruppert

The law has been slow to acknowledge the unprecedented nature of sea-level rise. Unless and until the law adapts, past case law on coastal hazards exacerbated by sea-level rise provides the best guidance. This Article critically examines a Florida case that addressed local government liability for coastal erosion damage to a road and dramatically altered Florida law in two key respects. First, the case altered and expanded the concept of “maintenance” of road infrastructure by a local government as the baseline duty that must be met to avoid potential legal liability. Second, the case introduced into Florida law the controversial idea that “inaction” may support a Fifth Amendment takings claim. The Article traces how other courts have unwittingly or carelessly introduced “inaction” into their takings jurisprudence, and evaluates whether and when inaction should be sufficient basis for a takings claim. It draws out serious policy implications of the case in light of sea-level rise, and makes recommendations to address fallout from the case.

Practicable Alternatives for Wetlands Development Under the Clean Water Act

by Daniel R. Mandelker

Section 404(b) of the Clean Water Act authorizes a “practicable alternatives” requirement for dredge and fill permits. EPA has adopted guidelines that set out and interpret that requirement, but the U.S. Army Corps of Engineers has substantial discretion in deciding its application to specific sites, and there can be significant variation in practice. This Article examines the practicable alternatives requirement, including comparisons with similar requirements in federal law; discusses other federal, state, regional, and local requirements that intersect with and shape the §404 process; and analyzes how practicable alternatives and other CWA requirements can be met. It makes recommendations for revising the practicable alternatives requirement, process, and decision criteria to improve its role in protecting wetlands resources.

Legal Pathways to Deep Decarbonization: Postscript

by John C. Dernbach

With this Article, ELR News & Analysis concludes our year-long series of excerpts from Legal Pathways to Deep Decarbonization in the United States, forthcoming from ELI Press. We believe the urgency and importance of this topic, coupled with the book’s original, policy-oriented treatment of it, warranted extensive advance coverage. Previous installments examined an array of specific sectors across the entire U.S. economy, with many more included in the published volume. In this final excerpt, one of the book’s co-editors reflects on the deep decarbonization project, its extension and application through the “legal pathways” described by the contributing authors, and its significance for the future.


The Impact of Justice Kennedy and the Effect of His Retirement

by Caitlin McCarthy, John C. Cruden, John Elwood, and Richard Lazarus

Justice Anthony Kennedy’s retirement in July has the potential to significantly affect the field of environmental law for years to come. The Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues, and his replacement will play a key role. For the past three decades, Justice Kennedy was a crucial swing vote on a variety of issues, including the 5-4 decision in Massachusetts v. EPA and 4-1-4 decision in Rapanos v. United States. These examples illustrate the changes that could lie ahead. On July 18, 2018, ELI held an expert panel exploring Justice Kennedy’s influence on environmental law, what his departure could mean for the future, and the nomination of Judge Brett Kavanaugh to the Court. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.