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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 2019


Standing for Everyone: Sierra Club v. Morton, Justice Blackmun’s Dissent, and Solving the Problem of Environmental Standing

by Scott W. Stern

The modern doctrine of environmental standing prevents many worthy plaintiffs from presenting their cases in court. Especially in the context of climate change, this restrictive doctrine has profound implications. But the modern doctrine is an aberration; this Article shows that for most of American history there were no comparably severe standing requirements, that the Supreme Court Justices of the mid-20th century who transformed the doctrine did so inadvertently, and that Justices’ invocation of “tradition” in justifying the modern doctrine is simply incorrect. The Article pays special attention to the seminal standing case of Sierra Club v. Morton. Though remembered now for Justice Douglas’ bold dissent arguing that trees should have standing, the truly radical dissent belonged to Justice Blackmun. Drawing on two forgotten yet crucial insights from his dissent, this Article then charts a path forward, and argues for the passage of statelevel environmental statutes that grant standing even in the absence of an injury. It concludes by proposing a model law.

Environmental Law. Disrupted.

by Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, and Erin Ryan

The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this Article, members of the Environmental Law Collaborative have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats, and, if not, what the path forward should be.


Solid Ground: Using Mitigation to Achieve Greater Predictability, Faster Project Approval, and Better Conservation Outcomes

by Jessica Wilkinson, Lynn Scarlett, Philip Tabas, and Brent Keith

Mitigation—shorthand for avoiding impacts to important species and habitat, minimizing impacts, and then providing offsets for the remaining, residual impacts—is a valuable tool for developers and federal agencies to comply with the requirements of the National Environmental Policy Act (NEPA), a variety of federal statutes that regulate impacts to important wildlife species and habitat, and/or public land management statutes requiring that uses of public lands are balanced with protection and conservation. The benefits afforded by commonsense mitigation policy, however, are now less available to developers due to the actions of the U.S. Department of the Interior (DOI) under the Donald Trump Administration. This Comment outlines the authorities to utilize mitigation provided by the DOI’s existing statutes and policies, describes the benefits afforded by mitigation policy, outlines the current state of play in mitigation policy, and, finally, describes why we need to return to a balanced policy framework that is a foundation for advancing positive outcomes for businesses, communities, and the environment.

Ten Years of the Compensatory Mitigation Rule: Reflections on Progress and Opportunities

by Palmer Hough and Rachel Harrington

In 2008, the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA) overhauled federal policy governing how impacts to wetlands, streams, and other aquatic resources authorized under §404 of the Clean Water Act (CWA) are offset—an action known as compensatory mitigation. On the 10-year anniversary of the Corps/EPA Compensatory Mitigation Rule, it is important to highlight this progress as well as some potential important work that remains to be done. This Comment reviews the major policy changes that were a part of the 2008 rule, highlights key areas of progress in compensatory mitigation practice documented under the 2008 rule, and notes some potential opportunities for further improvement.


Determining Climate Responsibility: Government Liability for Hurricane Katrina?

by Teresa Chan, Michael Burger, Vincent Colatriano, and John Echeverria

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, ELI hosted an expert panel to explore this ruling and its potential implications for future litigation in a world of changing climate, extreme weather, and uncertain liability. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.