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Issue

Volume 50, Issue 3 — March 2020

Articles

Building Credibility: Lessons From the Leadership of William Ruckelshaus

by Brigham Daniels and Andrew P. Follett

The recent passing of William D. Ruckelshaus has recalled and re-invited comparisons between the Trump and Nixon presidencies. Although Ruckelshaus might be most widely remembered for the “Saturday Night Massacre,” a review of his career in the Nixon and Reagan Administrations demonstrates a through-line of sound administration and independent regulatory leadership, at times in contrast to or in spite of his political environment. This Article explores the course of Ruckelshaus’ career in environmental regulation, focusing on his two terms as Administrator of EPA, in order to better understand the ways in which administrative and regulatory agencies gain, squander, and restore the most basic currency of government: credibility. Drawing from a number of unpublished primary materials, it fi nds that regulatory programs independent of presidential pressure are necessary to legitimate and credible executive government, and argues that this independence is lacking in the centralized power structure of the current Administration.

The Meat of the Matter: Shoring Up Animal Agriculture at the Expense of Consumers, Animals, and the Environment

by Amanda Howell

This Article analyzes the recent proliferation of “tag-gag” laws aimed at undermining the emerging plantbased and cell-based food industries. It examines potential constitutional challenges to these laws, including those based on the First Amendment, the dormant Commerce Clause, Supremacy Clause, and Due Process Clause, as well as the likely arguments that states will proffer in their defense. It concludes with a discussion of the consequences and implications of various outcomes of these cases, and how animal advocates can responsibly bring these types of constitutional challenges. The Article was adapted from Chapter 11 of What Can Animal Law Learn From Environmental Law, 2d Edition (ELI Press, forthcoming 2020).

Environmental Justice, Just Transition, and a Low-Carbon Future for California

by J. Mijin Cha, Madeline Wander, and Manuel Pastor

We must substantially reduce carbon emissions within a short time line, and this rapid decarbonization will cause negative economic and social impacts on workers and communities dependent upon fossil fuel extraction and use. “Just transition” often refers to addressing the needs of those communities, but an equitable transition into a low-carbon future should also take into account environmental justice communities that have suffered from disproportionate exposure to environmental hazards and that could and should benefit from job creation. This Article presents the results of a community-informed research project analyzing the challenges and opportunities of a just transition for environmental justice communities in California. Through interviews, case studies, and original data analysis, a framework for just transition policy development is presented built on four pillars: strong governmental support, dedicated funding streams, diverse and strong coalitions, and economic diversification.

A Game Changer in the Making? Lessons From States Advancing Environmental Justice Through Mapping and Cumulative Impact Strategies

by Charles Lee

This Article focuses on lessons learned from state practice in environmental justice (EJ) mapping and screening, and their relationship to the central issue of cumulative impacts—the reality that EJ communities typically suffer from a concentration of pollution sources and negative land uses as well as health and social vulnerabilities. These lessons are based on work in California and the development, use, and impact of the California Environmental Protection Agency’s CalEnviroScreen tool; the Article also examines the U.S. EPA’s EJSCREEN because of the ways that federal policies, tools, and data influence activities across all states. Five key lessons are discussed: (1) Addressing cumulative impacts is a core strategy for advancing EJ, and this is embodied in EJ mapping tool development; (2) Guiding principles for developing an EJ mapping tool can be articulated; (3) EJ mapping tools can help facilitate resource investment to promote health and sustainability in EJ communities; (4) Emerging EJ mapping efforts provide a useful, straightforward, and replicable model that state and local governments can emulate; and (5) Progress in advancing EJ at the state level, including mapping tool development, has come from the combined efforts of communities, academia, and government.

Comment(s)

NEPA's Promise: A Future in Which We All Thrive

by Sharon Buccino

NEPA is not about my agenda or your agenda. It is about solutions that work for all of us. This Comment offers a litmus test. The first section explains the promise NEPA makes to each of us, describing the integration, information, and inclusion that NEPA brought to our federal statutory framework in a way not previously seen and describing how NEPA enhances our democracy by holding the government accountable to the people it serves—by giving the public a right to information, as well as the right to provide information. The second section measures how we have done in fulfilling NEPA’s promise,  describing what it takes to deliver effective and efficient environmental analysis and public participation. By using this two-part litmus test to evaluate past actions, as well as proposals for change, we can chart a constructive path forward. 

Commercial Spaceports: A New Frontier of Infrastructure Law

by Kathryn Kusske Floyd and Tyler G. Welti

While a “spaceport” may sound like a concept mostly confined to science fiction, several commercial spaceports are in operation in the United States and abroad, and more are being developed. As the name suggests, spaceports, or commercial space launch sites, are used to conduct launch and reentry operations to and from space, such as launching satellites into orbit or sending space tourists to the edge of space and back. Focusing on the development and licensing of these sites, this Comment explains the rapidly growing commercial space industry, summarizes the Federal Aviation Administration’s commercial space licensing regime, and identifies several considerations associated with the new frontier of commercial space transportation infrastructure projects.

Dialogue

Renewable Energy: Corporate Obstacles and Opportunities

by Scott Fulton, Sofia O’Connor, Wayne Balta, Janice Dean, and Beth Deane

In the absence of a national mandate to intensify use of renewable energy, many corporations are increasing their own reliance on renewables. Numerous utilities are likewise transitioning toward wind, thermal, and solar power. But renewable energy continues to face challenges, including battery storage, grid expansion and incorporation of renewables into the grid, initial project costs, and regulatory barriers. How are utilities and energy-consuming companies increasing their renewables portfolios while navigating this terrain? On October 22, 2019, the Environmental Law Institute hosted its 2019 Annual Corporate Forum, which explored these questions and discussed the obstacles and opportunities for renewable energy. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.