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Volume 48, Issue 6 — June 2018


Managing Property Buyouts at the Local Level: Seeking Benefits and Limiting Harms

by Thomas Ruppert, John Fergus, and Enio Russe-Garcia

Efforts to conduct buyouts of at-risk properties are an increasingly popular resilience tool, especially in response to massive flooding losses in recent years and the financial predicament of the National Flood Insurance Program. Calls for buyouts increased after Superstorm Sandy, with both New York and New Jersey dedicating funds to voluntary buyout programs. In some communities, an exclusive focus on the vulnerability of individual properties may lead to an implementation that causes harm to neighborhoods and communities. Based on development of a model local government ordinance for Florida communities, this Article analyzes how communities can participate in and support buyout implementation to seek to achieve the benefits of reduced flood risk while avoiding the most negative impacts of buyouts. It details the need for careful drafting due to federal and state requirements, which may require targeted exemptions limiting local government support for and implementation of specific federal or state buyout programs.

Superstorm Sandy at Five: Lessons on Law as Catalyst and Obstacle to Long-Term Recovery Following Catastrophic Disasters

by Donovan Finn and John Travis Marshall

Nine of the 10 costliest U.S. hurricanes on record have ravaged the Atlantic and Gulf Coasts in the first two decades of the 21st century, yet federal, state, and local governments continue to struggle with devising an efficient and effective way to help cities and towns recover. This Article focuses on law-related obstacles encountered during the disaster response and recovery post- Superstorm Sandy. It considers how Sandy’s long-term recovery can inform the deliberations of cities nationwide regarding the strengths and potential vulnerabilities of their local laws, institutions, and capacities for promoting resilient recovery. The authors conclude by suggesting six takeaways to guide communities in the United States facing potential hazards-related risks.

Zeroing Out Climate Change: A “Hard Look” at Trump’s Social Cost of Carbon

by Doyle Elizabeth Canning

President Donald Trump has referred to climate change as a “hoax,” and in March 2017 issued Executive Order No. 13783, Promoting Energy Independence and Economic Growth. Section 5 of this Order directs federal agencies to discontinue use of the social cost of carbon (SCC), a protocol developed under the Barack Obama Administration to monetize the impacts of climate-related disasters and disruption. This directive sets up a conflict with the requirements of NEPA, and likely will be challenged in the courts. This Article argues that, under existing NEPA case law, discontinuation and/or drastic reduction of the SCC by the Trump Administration is likely legally actionable. It examines possible litigation strategies to challenge the expansion of fossil fuels, presents a thorough analysis of Executive Order No. 13783, and offers precedent for NEPA challenges to the SCC rollback.


The Recent Development of China’s System of Procuratorate Public Interest Litigation

by Cui Yu

After a two-year pilot program, the Standing Committee of the National People’s Congress formally established the Procuratorate Public Interest Litigation (PPIL) System on June 27, 2017. Since the courthouse door in China has been opened for the procuratorate to protect the public interest, the number of such cases has skyrocketed. The vastly expanded number and geographic scope of such cases demonstrates that the procuratorate plays a significant role in protecting the public interest. However, the PPIL System faces many pressing challenges that need to be addressed so that its effectiveness can be increased. This Comment investigates the expanded role of the procuratorate in public interest litigation in China from a historical perspective and details the key features of the PPIL System “on the books.” The Comment then analyzes the implementation of the PPIL System “on the ground,” and describes the features and achievements of the juridical practice as it has thus far been implemented. Next, it clarifies the urgent challenges that face the PPIL System and provides some suggestions for further implementation of the system. The Comment concludes that as long as China adopts detailed and feasible measures, the PPIL System will be a viable solution to protect the public interest.

Minimum Size Restrictions Are a Problem for Fisheries, Is Litigation the Solution?

by Judah Lieblich

Fisheries are tightly regulated under the broad Magnuson-Stevens Act, yet fish stocks widely remain either stagnant or in decline. Current management tools are failing to ensure that fish populations maintain the reproductive capacity needed to recover. One of the oldest and most widely used tools is minimum size restrictions. In the United States, the removal of minimum size restrictions would potentially be attractive to a wide variety of stakeholders, including commercial fishers, recreational fishers, and environmentalists, all of whom seek the sustainable management of fishery resources. Nevertheless, minimum size restrictions remain one of the most widely used tools in fisheries management in the United States. The scientific momentum pushing for the removal of minimum size restrictions, international precedent for successful alternatives to minimum size restrictions, and potential stakeholder support, all provide motivation to remove minimum size restrictions in the United States. This Comment will analyze how litigation can provide the means to do so.