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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 2020


Growing ESG Risks: The Rise of Litigation

by David Hackett, Reagan Demas, Douglas Sanders, Jessica Wicha, and Aleesha Fowler

As companies increase their environmental, social, governance (ESG) reporting and statements in response to market and shareholder demands, plaintiffs have pursued with growing success legal challenges to company claims and disclosures related to ESG performance. Similarly, inventive theories are being put forward to directly attack companies for alleged ESG-related performance and operational deficiencies. In both arenas, there has been a recent growth in efforts to hold companies accountable for supplier misconduct. The expanding growing misstatement and performance litigation signals a rising need to carefully manage ESG programs, performance, and statements.

Time to Rethink the Supreme Court’s Interstate Waters Jurisprudence

by Jamison E. Colburn

This October Term, the U.S. Supreme Court will be asked to weigh in on three and possibly all four of its pending original jurisdiction controversies over interstate waters. The Court’s past judgments and opinions have established little in the way of “federal common law” governing the states’ interests in shared waters. But they have established this much: these interests vest in states-as-states directly under the U.S. Constitution, even if the Court itself is reluctant to specify the interests with much precision or to enjoin violations thereof. Ultimately, and perhaps ironically, if it is states’ “equal dignity” that animates their interests in shared waters, it may be time for the Court to help other courts to adjudicate these interests through more ordinary channels than the extraordinary precincts of the Supreme Court’s original jurisdiction.

U.S. Aquaculture’s Promise: Policy Pronouncements and Litigation Problems

by Eric Laschever, Katharine Byrnes, Corinne Noufi, and Kalloway Page

On May 7, President Donald Trump issued Executive Order No. 13921, Promoting American Seafood Competitiveness and Economic Growth, stating that it is U.S. policy to “facilitate aquaculture projects through regulatory transparency and long-term strategic planning.” To further this policy, the Order directs the U.S. Army Corps of Engineers to create a nationwide permit for aquaculture operations, and tasks the National Oceanic and Atmospheric Administration with a variety of planning- and permit-related responsibilities. This Article explores the decades-long effort to formulate a national aquaculture policy, the current regulatory framework for aquaculture planning and permitting, the court battles over these efforts, and congressional and executive responses to the litigation and the challenges and opportunities that aquaculture presents.


Update on Negotiation of a New International Environmental Agreement

by Maria Antonia Tigre and Victoria Lichet

International environmental law (IEL) has developed widely since the first global meeting in Stockholm in 1972. Accounts estimate that there are more than 500 multilateral environmental treaties (MEAs). However, the predicted future shows that current global environmental policy efforts are undeniably insufficient. IEL’s prevailing anthropocentric ethic has directly contributed to the crisis, suppressing the symptoms rather than treating them. International cooperation and the revival of multilateralism are pivotal to long-term environmental protection, and ever more critical given the COVID-19 pandemic. Within this context, the United Nations (U.N.) is debating a new political declaration in the context of the commemoration of the 50th anniversary of the creation of the U.N. Environment Programme to strengthen environmental governance and implement IEL. The resolution kicks off a new phase in the development of IEL. This Comment follows recent developments related to this process, through an analysis of the negotiation process developed from August 2019 to August 2020.

A Framework for Community-Based Action on Air Quality

by George Wyeth

Over the past 50 years, tremendous progress has been made in reducing air pollution under the Clean Air Act. Nevertheless, while air quality has improved greatly for much of the nation, there are still places where the goal of attaining national standards has still not been reached. This is often true in urban locations that are affected by multiple pollution sources; typically, these areas are also environmental justice communities. Recent events have called attention to the urgent need for concrete action to address the many problems of these communities. This Comment presents a legal framework for action at the community level that represents a departure from the current statutory model. It outlines an approach that works from the bottom up, addressing a wide range of local issues in an integrated way, driven by community priorities and informed by community-generated data.

Back to the Future: Creating a Bipartisan Environmental Movement for the 21st Century

by David M. Uhlmann

With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.


Breaking Precedent: SCOTUS in the Midst of a Pandemic

by Davina Pujari, John Cruden, Richard Lazarus, and Sambhav Sankar

In County of Maui v. Hawaii Wildlife Fund, the U.S. Supreme Court held, 6-3, that the Clean Water Act requires a national pollutant discharge elimination system permit “when there is the functional equivalent of a direct discharge.” The Court also decided Atlantic Richfield Co. v. Christian, holding, 7-2, that landowners adjacent to a Superfund site were potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act. Both of these decisions surprised many, particularly given the coalition of Justices who formed the majorities. Other cases were delayed or postponed, and for the first time, the Court heard oral arguments via teleconference due to the ongoing coronavirus pandemic. On June 12, 2020, the Environmental Law Institute hosted a panel of experts that discussed what this term’s decisions and the Court’s new way of operating might bode for the upcoming term. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.