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Volume 51, Issue 2 — February 2021


Down the Rabbit Hole With the IRS’ Challenge to Perpetual Conservation Easements, Part One

by Jessica E. Jay

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions. Part One of this two-part Article examines how the Service lures the land conservation community and the Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest. Part Two, in the next issue, will identify the fundamental elements of law and the process of law to topple the Service’s card construct, and awaken and return everyone to the world above ground.

Marine Protected Areas on the Uncertain Frontiers of Climate Change

by Vidya Vijayaraghavan

Scientific communities and policy experts argue that marine protected areas (MPAs) will increase the potential of marine ecosystems to tackle climate change impacts. Yet to date, there has been little legal scholarship about how to design, manage, and implement climate-resilient MPAs. This Article underscores the importance of considering climate change in the design, planning, and implementation of MPAs, and identifies mechanisms for incorporating climate change elements into MPAs. It highlights a newly developing international instrument, the draft biological diversity of areas beyond national jurisdiction treaty, that provides opportunities for facilitating creation of MPAs; discusses the relevant articles of the latest draft; and emphasizes the potential to more fully incorporate climate change considerations. It also draws attention to the need to improve national-level frameworks governing MPAs to address climate change.


Salmon and the Clean Water Act: An Unfinished Agenda

by Michael C. Blumm and Michael Benjamin Smith

Salmon require cool temperatures to migrate and reproduce. The Clean Water Act (CWA) requires states to develop and implement water quality standards sufficient to produce fishable waters. Nearly a half-century after its 1972 enactment, the modern federal statute’s goal of fishable waters has yet to be achieved in the case of salmon streams. Recent cases that attempt to enforce the long-delayed temperature total maximum daily load for the Columbia and Snake Rivers through §401 certifications offer some hope that the CWA can become a vehicle for cooling the river temperatures, especially in the Columbia Basin, and promoting salmon recovery. But that will require overcoming determined opposition to changes to the status quo.

Time Has Come Today for Environmental and Climate Justice Legislation

by Barry E. Hill

Faced with interconnected crises—affordable housing, and environmental and climate injustice—in low-income, disadvantaged, and Black and Brown communities, this Comment asserts that President Joseph Biden should adopt the same or similar approach of President Franklin D. Roosevelt, and challenge Congress to enact sweeping environmental and climate justice legislation in the first 100 days.


ELI 2020 Corporate Forum: Reimagining Supply Chains

by Caitlin McCarthy, Scott Fulton, Jessica Bowman, Catharine de Lacy, Sally Fisk, Katherine Neebe, and Yolanda Pagano

The coronavirus pandemic, the push for racial justice, and continued efforts to mitigate climate change have emerged as key challenges for corporations. At the center of this trifecta of change are supply chains; onequarter of the global supply chain, approximately $4.5 trillion, could shift by 2025. Leading companies are rebuilding supply chains more resilient to the disruptions caused by climate change and more cognizant of environmental, social, and governance expectations, while prioritizing suppliers that promote racial justice and companies owned by people of color. On October 13, 2020, the Environmental Law Institute convened an expert panel that explored these issues. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.