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Volume 50, Issue 12 — December 2020


Environmental Rights, Public Trust, and Public Nuisance: Addressing Climate Injustices Through State Climate Liability Litigation

by Barry E. Hill

This Article focuses on an area of rapidly evolving jurisprudence—climate liability litigation. It examines in depth the state attorney general’s complaint filed in Rhode Island v. Chevron Corp. in 2018, alleging various state-law tort claims. It explores the intensely sustained legal battles taking place between states and fossil fuel companies over whether federal courts or state courts should have jurisdiction, which in many respects is the “ballgame issue” for both plaintiffs and defendants. Rhode Island’s carefully crafted complaint arguably provides a roadmap for other states, as it comprehensively weaves together the state’s public trust and public nuisance laws as well as the state’s environmental rights amendment. The U.S. Court of Appeals for the First Circuit recently ruled that the state was “alleging [under state law that] the oil companies produced and sold oil and gas products that were damaging the environment in Rhode Island and engaged in a misinformation campaign about the harmful effects on the earth’s climate,” and remanded the case back to state court for trial.

How President Trump's War on Science Undermines Cost-Benefit Analysis of Climate Policies

by Carolina Arlota

This Article discusses the Trump Administration’s main actions to undermine the role of science in public policy and the consequences for cost-benefit analysis involving climate change policies. It analyzes the specific attacks on science and their impact on relevant policies, namely, the rollbacks of the Clean Water Rule, the pesticides ban, the Clean Air Act, and the Clean Power Plan, as well as modification of the National Environmental Policy Act and regulations promoting fuel efficiency, and the flexibilization of environmental enforcement during the COVID-19 pandemic. All of these deregulatory cases were also illustrative of at least one modality of an attack on science. It concludes by examining the negative impact of the war on science and related unreasoned policymaking that transcends domestic borders.

Environmental Deconfliction 2020: The National Defense Authorization Act for FY 2020

by Rachel Jacobson and Matthew F. Ferraro

As in prior years, the National Defense Authorization Act for Fiscal Year 2020 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that represent some degree of consensus on these often-politicized topics. In this Article, the third in an annual series, the authors canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and environmental and natural resource management, and its implications for practitioners in these areas.


Marine Plastic Pollution: How Global Extended Producer Responsibility Can Help

by Erin Eastwood, Justin Fisch, Lara McDonough, and Linda Sobczynski

Nearly nine million tons of plastic waste flow into our oceans each year, arriving in many ways—ranging from polluted rivers and waterways to the wastewater from our washing machines. Once in the ocean, this pervasive plastic pollution is nearly impossible to clean up. If there is anything positive to say about such a broad and complex challenge, it is that there are multiple ways to tackle the problem. Legal and policy solutions are increasingly moving away from the piecemeal, product-by-product approach of single-use plastic bans and toward more comprehensive frameworks and solutions.This Comment discusses one such approach to managing plastic waste in a more comprehensive and holistic manner, called extended producer responsibility.


Extreme Weather and Climate Change

by Rebecca L. Kihslinger, Sarah Kapnick, Paul A. Hanle, Edward Kussy, and Aladdine Joroff

People, businesses, cities, and states are increasingly burdened by extreme weather events. Drought, heat, wildfires, precipitation, hurricanes, and tornadoes are becoming more intense. Most analysts point toward an emerging trend: as the earth warms, extreme weather events are becoming more costly and more deadly, though some raise lingering uncertainties about linking climate change to specific types of weather or specific events. On June 25, 2020, the Environmental Law Institute (ELI) hosted an expert panel that explored extreme weather adaptation and resiliency efforts in the United States. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.