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Volume 50, Issue 6 — June 2020


Species Protection as a Natural Climate Solution

by Mackenzie Landa

This Article, adapted from Chapter 16 of What Can Animal Law Learn From Environmental Law?, 2d Edition (ELI Press, forthcoming 2020), explores existing and potential wildlife conservation policies that could play a vital role in mitigating global climate change. It describes how climate change is impacting wildlife and biodiversity around the globe and reviews the history and current state of U.S. policy, including how the federal government currently manages climate change issues under the ESA. It then proposes ways that the ESA and other wildlife conservation policies can mitigate climate change as natural climate solutions. It analyzes new wildlife conservation policies for their potential to mitigate climate change, and concludes that these can provide much-needed protection for species and biodiversity, while also serving as a valuable and meaningful tool to combat climate change.

Regulating CAFOs for the Well-Being of Farm Animals, Consumers, and the Environment

by Lindsay Walton and Kristen King Jaiven

The livestock sector is one of the planet’s primary causes of resource consumption and environmental degradation. Approximately 99% of meat and other animal products in the United States are from factory farms, and the number of concentrated animal feeding operations (CAFOs) continues to grow. This Article, adapted from Chapter 8 of What Can Animal Law Learn From Environmental Law?, 2d Edition (ELI Press, forthcoming 2020), examines animal agriculture in the U.S and the associated problems. It explores the economic advantage CAFOs enjoy over small-scale models, and provides suggestions for improving market imbalances; explains existing federal, state, and local laws addressing animal welfare and federal environmental laws that should apply, and offers suggestions for modifying these to adequately protect farm animals and the environment; and offers innovative alternatives to the use of CAFO products to allow consumers to fill the gaps left in farm animal regulation.

Behind the Curtain: Insiders' View of Developing and Enforcing State Climate Change Laws

by Sue Reid and Jennifer K. Rushlow

This Article highlights the role of advocates in pushing government to step up to the challenges of reducing greenhouse gas (GHG) emissions and remaining steadfast through continued policy enforcement. The authors, who participated in the development of the Massachusetts Global Warming Solutions Act, provide insights regarding climate legislation, regulation, and litigation in a state committed to addressing climate change. They conclude by sharing lessons learned and recommendations for how state governments can shape future climate laws to take into account the necessary near-term and longer-term GHG emission reductions, and establish mandates that maximize enforceability.


Accelerating Energy Transition in India: A Comparative Perspective

by Uma Outka

The year 2015 marked a new era in climate efforts under the United Nations Framework Convention on Climate Change when the nations of the world signed a new implementing agreement in Paris, France. Under the Paris Agreement, Parties committed to make “nationally determined contributions to the global response to climate change” toward a specific consensus end: “Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.” Parties agreed to submit nationally determined contributions (NDCs) to the United Nations, detailing how domestic law and policy would reduce emissions within national borders, understanding that successive filings would intensify in ambition, and reflecting that each nation has “common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.” India stands out with an especially ambitious NDC—a plan that aims for more than any other major emitter that has submitted a plan to date. This Comment focuses on India’s NDC as it pertains to energy systems, and in particular, transitioning the electricity sector to a modern, low-carbon grid.

EPA’s Criminal Prosecution and Punishment of Environmental Crimes

by Joshua Ozymy and Melissa L. Jarrell

The U.S. Environmental Protection Agency (EPA) has the difficult mission of crafting complex environmental rules and regulations while considering the economic costs of those actions. The Agency must also engage in law enforcement functions to enforce these rules and regulations to ensure compliance, punish appropriately, and deter future offenders. Most of these enforcement actions rely on civil remedies to gain compliance, such as negotiating consent decrees or issuing civil penalties. In cases of willful, chronic, or serious offenses, the Agency can seek criminal penalties. Little academic and legal research goes beyond explaining civil punishments to describing criminal punishment outcomes by EPA, particularly across regional offices. This Comment undertakes content analysis of the EPA Summary of Criminal Prosecutions database of all cases across all 10 regional offices in which EPA sought criminal sanctions against environmental offenders from 1983 to 2019  to provide insight into the Agency’s criminal enforcement efforts over the past 37 years and create a basis for understanding what the Agency does to punish offenders with its criminal enforcement apparatus.


Jumping Through Hoopa: Complicating the Clean Water Act for the States

by James M. McElfish, Rick Glick, and Sharon White

Section 401 certification and permit conditioning under the Clean Water Act is one of the most significant tools for states to influence federally permitted activities involving discharges into navigable waters. However, states are required to set conditions within one year or they forgo their ability to do so. In practice, the one-year review is difficult for states to meet and led to a common practice known as “withdraw and resubmit” in which states could reset the clock. But in Hoopa Valley Tribe v. Federal Energy Regulatory Comm’n, the D.C. Circuit unanimously struck down this practice. Because the U.S. Supreme Court denied review, states now have one calendar year to issue their water quality certifications and decide if any conditions should be included. On March 17, 2020, the Environmental Law Institute hosted an expert panel that explored the ramifications of the Hoopa decision on states and §401 permit applicants. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.