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


But Flooding is Different: Takings Liability for Flooding in the Era of Climate Change

by J. Scott Pippin and Mandi Moroz

With the increased risk of flooding due to climate change, potential liability from construction and maintenance of flood control measures is a major consideration governments must consider when planning and building them. This Article discusses how the Supreme Court’s decision in Arkansas Game & Fish Commission v. United States (AGF) laid the groundwork for a new form of takings that the authors term “negligent takings,” increasing the likelihood that the government will be liable after a flooding event. It highlights concerns with the lack of guidance provided by AGF and how lower courts have inconsistently applied the AGF test in cases following Hurricane Katrina and Hurricane Harvey. Providing greater clarity to the scope of this liability and limiting the application of negligent takings is critical to ensuring that governments are able and willing to take action to adapt to climate change.

The Public Trust in Wildlife: Closing the Implementation Gap in 13 Western States

by Martin Nie, Nyssa Landres, and Michelle Bryan

State wildlife agencies commonly claim they are entitled to manage wildlife under the public trust doctrine (PTD). This assertion is frequently made in judicial proceedings, with state requests that their managerial authority be given due force throughout state, private, federal, and even tribal lands. One might conclude that a rich body of PTD practices and policies exists for wildlife; in reality, the PTD in state wildlife management proves to be ephemeral. This Article empirically investigates application of the PTD to wildlife by 13 state fish and wildlife agencies in the American West over nearly two decades. It exposes a significant gap between the legal assertions western states make about the PTD and the actual decisions of state agencies. To fulfill the legal mandate of the PTD, and avoid the specter of arbitrary and capricious decisionmaking, state wildlife agencies must do more. The Article suggests how states can begin to close this implementation gap.

Patching a Persistent Problem: PFAS and RCRA’s Citizen Suit Provision

by Paul Quackenbush

Per- and polyfluoroalkyl substances (PFAS) are a toxic, environmentally persistent class of chemicals that have been used widely in consumer products. Despite growing evidence of adverse health effects associated with PFAS exposure, the U.S. Environmental Protection Agency has not yet promulgated a legally enforceable standard for any of the individual chemicals in the PFAS group. This has resulted in largely unrestricted disposal of PFAS waste and dispersal of these persistent chemicals throughout the environment. This Article presents the legal case for applying §7002(a)(1)(B) of the Resource Conservation and Recovery Act to PFAS waste, and argues that this citizen suit provision has the potential to become a powerful tool to address PFAS in the absence of significant federal regulatory action.


Governing AI: The Importance of Environmentally Sustainable and Equitable Innovation

by Henry Gunther and Julietta Rose

Artificial intelligence (AI) and complex machine learning algorithms have come to play a profound role in many of our day-to-day activities. We have finally landed squarely in the age of ubiquitous computing—a stage of computer-society integration first predicted in 1988 by Mark Weiser at the Xerox Palo Alto Research Center, in which computer systems would “vanish into the background,” weaving “themselves into the fabric of everyday life until they are indistinguishable from it.” This fusion of digital technologies and blurring of the human and digital boundaries is a new form of industrialism. Similar to all other industrial revolutions, these advancements and rapid shifts in productivity are outpacing our understanding of the potential costs and benefits. As AI becomes more prevalent in all areas of life, we need to turn our attention to the interactions between AI and our physical environment, to harness the potential of this technology while avoiding environmental and societal harms. Technological revolutions may fail to materialize, but when they do, they may have unforeseen consequences that leave us little time to prepare.

COVID-19 and Environmental Law

by Arden Rowell

The COVID-19 pandemic will have far-reaching and even transformative implications for environmental law. Although the future trajectory of the pandemic remains uncertain, it has already brought many changes to how people live, and is likely to bring many more. This Comment explores four important types of change triggered by the pandemic: (1) behavioral changes (including behaviors with environmental impacts); (2) changes in values (including regarding the environment); (3) demographic changes that affect levels of background risk against which laws (including environmental laws) operate; and (4) changing resources (including those that can be spent on environmental or other amenities). Each of these changes has potentially important implications for the assumptions built into environmental law, for the ability of environmental law to effectively regulate the environment, and for the way that humans will interact with the environment in coming years and decades.