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


"Significant Portion of Its Range": Statutory Interpretation of the ESA

by Quint Doan

The Endangered Species Act defines an endangered species as one at risk of extinction “throughout all or a significant portion of its range.” The U.S. Department of the Interior (DOI) has repeatedly defined “significant portion” to mean an area of the range essential to species persistence. This definition is redundant, and various iterations of the definition have been struck down in the past. At the same time, other proposals to list a species only in a portion of its range fail to satisfy the statutory requirements. This Article proposes to define “significant portion of its range” so as to allow DOI to list a species as endangered throughout its entire range based only on the risk of extinction in a portion of its range. The Article also provides a framework for understanding how past policies have failed.

Resisting Regulatory Rollback in the Trump Era: The Case for Preserving CZMA Consistency

by Eric Laschever

On March 11, 2019, the National Oceanic and Atmospheric Administration published an advance notice of proposed rulemaking to amend regulations that implement the Coastal Zone Management Act’s (CZMA’s) consistency requirement. This Article places the notice in context, focusing on the CZMA’s role in state review of offshore oil and gas development and its evolution to provide a predictable framework that balances coastal state interests with the nation’s energy needs. It argues that current circumstances and facts do not support amending the regulations and that such changes should have an uphill battle in court.


Climate Change and the Role of Emerging Economies

by Daniel Ling Tien Chong

The principles of “common but differentiated responsibility” (CBDR) and sustainable development play an integral role in international environmental law. However, these principles have come under fire in recent years, particularly from the global North, which has grown impatient over the lack of contribution on climate change from the emerging economies. Much effort has been expended toward the establishment of greater contribution, and the shouldering of greater responsibility from these countries. This Comment seeks to analyze principles of CBDR and sustainable development, two central pillars upon which international climate change law and policy have developed, and to identify the reasons for the present discontent of the global North over the obligations of emerging economies. It also seeks to establish a basis for a new interpretation of the principle of CBDR to assist the forward march of global climate change negotiations.

Democracy Defense as Climate Change Law

by Craig Holt Segall

In 1990, when the Clean Air Act (CAA) was last substantially amended, atmospheric carbon dioxide levels stood at about 350 parts per million (ppm). Now they are close to 414 ppm, and the U.S. Congress has not amended the CAA despite broad public support for action.The law of democracy and the law of climate change are fundamentally intertwined: how politics and law will be able to adjust to the future turns on who decides the law, and so on the health of our democracy. So far, the prognosis is mixed: a vital protest movement, active state responses, and growing economic pressure for action are balanced against powerful political actors seeking stasis and a sclerotic jurisprudence that limits democratic responsiveness. This Comment discusses the ways inequities in climate change risk and in democratic representation mirror each other, addresses the U.S. Supreme Court’s inconsistent and unhelpful jurisprudence on democracy and agency action and how it tends to reinforce this crisis of democracy, suggests alternate theories of judicial action that would better reinforce democratic responsiveness, and reflects on a broadened conceptual framework for climate law—as a legal framework fundamentally concerned with preserving equity and democracy in the face of climate change, and as a foundation for climate action.

The Reasonable Investor and Climate-Related Information: Changing Expectations for Financial Disclosures

by Hana V. Vizcarra

In recent years, the drumbeat for more expansive climate-related corporate disclosures has grown louder and more consistent within a broader swath of the financial community. This intensifying call argues for considering more climate-related information legally material under existing U.S. securities disclosure law. A key component of materiality as defined in U.S. securities law—who is a “reasonable investor”—is evolving when it comes to climate-related information. This evolution may soon impact what climate-related information courts consider material. Uunderstanding how courts may treat such information under the existing securities law framework is crucial to achieving more expansive disclosures. This Comment attempts to contribute to that conversation by surveying current trends that may influence courts’ analyses of the materiality of climate-related topics.


Managing Marine Litter

by Carl Bruch, Carole Excell, K. Russell LaMotte, and Adena Leibman

Marine litter is human-created waste that has been discharged into the marine environment, including glass, metal, plastics, and other debris. According to data compiled by the United Nations, the equivalent of a garbage truck filled with plastic is dumped into the ocean every minute—more than 8 million metric tons per year. On November 11, 2019, the Environmental Law Institute hosted an expert panel that explored recent U.S. legislation to target marine litter, the economic impacts of marine litter, and examples of successful international marine pollution agreements and regulatory collaborations. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.