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Volume 50, Issue 7 — July 2020


Under the Radar: A Coherent System of Climate Governance, Driven by Business

by Louis G. Leonard III

This Article argues that growing private efforts to address climate change collectively take on the attributes and functions of a governance system that could be vital to societal decarbonization. Instead of evaluating specific initiatives or actions of particular businesses, it explores the entire field of private climate action and offers new ways of thinking about the path ahead. The author explores the opportunities and benefits of private climate governance, tests the current landscape of initiatives against criteria of effectiveness and legitimacy, and suggests a research and action agenda for the climate community to bridge gaps in the system.

Rethinking the Function of Financial Assurance for End-of-Life Obligations

by Colin Mackie and Laurel Besco

This Article develops a new normative account of the function of financial assurance requirements (FARs) for end-of-life obligations in the energy sector. These obligations cover restoration of the site to its original condition or to a level that could accommodate another productive use once the energy project ends. FARs necessitate that operators evidence ability to pay for this. However, many FARs are failing across the United States, Canada, and the United Kingdom, posing serious implications for public funds and the environment and resulting in significant cost savings for operators that have the potential to distort trade. The authors argue that it is time to rethink FARs’ function, and that they ought to empower operators and regulators to discharge important legal responsibilities—or duties—ascribed to them prospectively. From the operator’s perspective, this is a duty to perform their end-of-life obligations. In contrast, the regulator’s duty is to protect the environment and human health by obtaining an appropriate guarantee from the operator that the works will be performed. The authors conclude that the empowering quality of FARs may be achieved most effectively through ensuring that fully funded capital reserves are “ring-fenced” from the claims of creditors prior to operations commencing.


Climate Refugees in the Pacific

by Saber Salem and Armin Rosencranz

It is now scientifically proven that climate change is causing disruptions to the world at large. These slow-motion consequences threaten most coastal areas around the world, especially the Pacific Island nations.  Scientists predict that climate change will cause the forced displacement of people; desertification; protracted destructive wildfires; sea-level rise; ocean acidification; extreme weather events; and severe drought, which then impacts the supply of food. It will also cause frequent flooding, torrential rainfall, and of course tropical cyclones, which damage agricultural lands, agricultural productivity, and livelihoods. It is therefore logical to argue that climate change is undeniably a global phenomenon, which demands global actions. However, what is missing at this point in time is a general consensus to take coordinated joint action to tackle climate change. This Comment argues that despite dwindling resources, the international community has a responsibility to protect affected people and must give climate migrants refugee status so that they are protected outside their national borders.

Defining Habitat to Promote Conservation Under the ESA

by Jason C. Rylander, Megan Evansen, Jennifer R.B. Miller, and Jacob Malcom

The U.S. Supreme Court’s opinion in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service raises important questions about the scope of the Endangered Species Act’s (ESA’s) protections for critical habitat. Foremost among them is a question one might think was long settled: what is “habitat”? In a short ruling, the Weyerhaeuser Court opined that “critical habitat” must first be “habitat,” but it did not attempt to define exactly what habitat is or how much deference the U.S. Fish and Wildlife Service should get on what is both a biological and policy question. The Court also sidestepped whether currently unoccupied “habitat” must in fact be “habitable” at the time of designation as critical habitat. The task of defining “habitat” now falls to the ESA’s implementing agencies or to the U.S. Congress.  This Comment proposes to define habitat in a way that is consistent with the intent of the ESA, reflects the best available science, is operationally workable, and also broad enough to account for species’ needs.