Recent uclalaw_jelp items

Front Matter

Fri, 20 Feb 2026 00:00:00 +0000

Front Matter

A Silver Lining: Interpreting the Endangered Species Act to Envision Management of the Rio Grande Silvery Minnow in a Broader Cultural, Ecological, and Political Context

Fri, 20 Feb 2026 00:00:00 +0000

The Rio Grande silvery minnow, listed as an endangered species in 1994, is the subject of significant debate, litigation, and water management decisions. This article documents the history of the minnow as it related to the Endangered Species Act. Even as outcomes for the species fail to improve, the minnow plays an important role in Middle Rio Grande water management. The water supplied for the minnow also provides benefits to the human community and larger ecological community. This article posits that the next era of minnow management, beginning with the upcoming 2028 Biological Opinion, should consider a wider set of values, to provide benefits for both the Rio Grande silvery minnow and the larger Middle Rio Grande community.

Make Room for the Mushroom: Legal Vehicles for Conservation of the Kingdom Fungi

Fri, 20 Feb 2026 00:00:00 +0000

Make Room for the Mushroom: Legal Vehicles for Conservation of the Kingdom Fungi

Land in Transition: Repurposing Water-Constrained Farmland for Sustainable Solar Development in the San Joaquin Valley

Fri, 20 Feb 2026 00:00:00 +0000

Land in Transition: Repurposing Water-Constrained Farmland for Sustainable Solar Development in the San Joaquin Valley

Watt's in the Wind? A Comparative Analysis of Legal Currents in Offshore Wind Between China and the United States

Thu, 3 Jul 2025 00:00:00 +0000

This research paper compares offshore wind energy policies between the United States and China by highlighting the differences between their development trajectories. Offshore wind energy is undoubtedly a crucial component of the global transition towards renewable energy. So far, it has seen varying levels of success across different jurisdictions, with China significantly outpacing both the United States and the European nations which pioneered it. China's both rapid and efficient deployment of offshore wind capacity should be attributed to its centralized government approach; its strategy includes streamlined regulatory frameworks, notable financial incentives, and strong government support policies, among other initiatives. These measures have enabled China to both meet and exceed its ambitious renewable energy targets.

In contrast, despite recent efforts by the latest American presidential administration, development of the United States' offshore wind industry has...

Front Matter

Thu, 3 Jul 2025 00:00:00 +0000

Front Matter

An Economic Case Against Uneconomic Coal: Antitrust Concerns in the Deregulated and Competitive Electricity Market

Thu, 3 Jul 2025 00:00:00 +0000

This Article addresses uneconomic self-commitment in the electric power market with an eye to the antitrust case against the uneconomic operations of coal-fired power plants. Part I describes the history of electricity market regulation, deregulation, and the problem caused by vertically integrated utilities relying on uneconomic coal resources. Part II addresses the interplay of antitrust, anticompetition, and anti-manipulation laws on the energy industry and electricity market. Ultimately, antitrust doctrine's entrenchment in the industry's prior age presents a challenge to what is a billion-dollar problem and this Article attempts to challenge that entrenchment.

Nature in the Balance: The Post COP-15 Pathway to Achieve a Sustainable Global Economy

Thu, 3 Jul 2025 00:00:00 +0000

Nature is being lost at an unprecedented rate and time is running out to stop it. Despite the systemic financial and human risks posed by nature loss, little attention is paid to addressing its root cause—the unsustainability of the global economy. However, at COP15, states agreed to the Global Biodiversity Framework, which signaled growing recognition of the need to transition to a sustainable global economic system. This Article first examines why the current global economic system is unsustainable and what is the definition of the sustainable economy. The Article then nproceeds to determine how states can achieve this transition, looking at the policy roadmap that has emerged at both the international and domestic levels since COP15.

Reinforcing Community Climate Resilience through Social Cohesion: Opportunities for Local Governments in Southern California

Thu, 3 Jul 2025 00:00:00 +0000

This paper aims to identify how local governments may strengthen climate resilience by supporting bottom-up social cohesion within communities themselves. Social cohesion may be broadly characterized as a society's willingness to cooperate to achieve the shared well-being of all its members. Despite having particularly good outcomes in low-income communities, social cohesion has often been overlooked as an adaptive climate resilience tool. Without effetive safeguards in place to protect long-term social cohesion, climate impacts will only diminish communities' ability to build social cohesion in the first place. Through community-based legal and policy mechanisms that address existing social economic problems, local governments can enshrine social cohesion frameworks as an adaptive resiliency tool for use against imminent climate impacts.

First, this paper will introduce social cohesion as a concept and the different dimensions through which it has been analyzed. Next,...

Climate-Related Displacement and U.S. Refugee Protection

Mon, 21 Oct 2024 00:00:00 +0000

In an era defined by climate crises and mounting barriers to cross-border movement, this Article examines the intricate relationships between climate change, displacement, and refugee protection in the United States. Through a comprehensive analysis, incorporating insights from interviews with asylum seekers from Mexico and Central America at the U.S.-Mexico border, we present case examples that highlight the convergence of climate change impacts with other drivers of displacement. Our assessment reveals how some individuals affected by climate-related displacement may qualify for refugee protection when climate change impacts intersect with and exacerbate persecution based on protected grounds under U.S. law. Nevertheless, the significant protection gaps for climate-displaced people underscore the urgent need for the development of additional protection pathways as climate change impacts increasingly drive movement across borders.

Income-Graduated Fixed charges, Energy Justice, and the Clean Energy Transition

Mon, 21 Oct 2024 00:00:00 +0000

Increasing electrification is key to solving climate change. However, the current system of electricity provisioning is not equal and disproportionately burdens low-income and minority households. To avoid intensifying this inequality, the growing number of incentives aimed at electrification must be coupled with significant structural changes to the electricity system. California’s Income-Graduated Fixed Charge (IGFC) is an example of this type of needed change. First introduced as a provision in Assembly Bill 205, it promises to alter the way consumers pay for electricity by adding an income-based, monthly fixed charge to electricity. It also promises to remedy California’s currently regressive rate design, to lower electricity bills for many customers—most significantly, low- and middle-income customers—and to lower the cost of electricity which would thus incentivize beneficial electrification. However, this uncomplicated portrayal of the IGFC belies the challenges this...

"Special Solicitude" or "Special Hostility?": Where State Standing in Environmental Litigation Stands 17 Years After Massachusetts V. EPA

Mon, 21 Oct 2024 00:00:00 +0000

The Supreme Court’s 2007 decision in Massachusetts v. EPA marked the first time the Court had addressed the standing of states to sue the federal government in an environmental case. The Court’s holding that Massachusetts, New York, and the other petitioners had standing to sue the Environmental Protection Agency for climate change-related harms established important precedent for lawsuits brought by states against the federal government. In this article, we examine environmental litigation over the past seventeen years in which federalc ourts have considered the Massachusetts standing holding—and the Court’s instruction that states deserve “special solicitude” in the standing inquiry—in deciding whether states had demonstrated standing against the federal government. As was the case in Massachusetts, it is critical that states have the ability in our system of cooperative federalism to vindicate their rights (and the rights of their residents) in federal court. We discuss...

The Fight Against Graphite: What Tribal Opposition to a Mine in Alaska Teaches Us about the Importance and Limitations of Consultation in the Green Transition

Mon, 21 Oct 2024 00:00:00 +0000

Twelve years ago, a Canadian mining company started drilling for graphite in the Kigluaik Mountains. The Native Villages of Mary’s Igloo, Brevig Mission, and Teller were never notified of the start of exploration, despite their proximity to the proposed mine site and the significance of the Kigluaiks in their culture and creation story. Adding insult to injury, in July 2023, the Department of Defense (DoD) granted Graphite One $37.5 million dollars to expedite the feasibility study for this mine. To this day, the DoD has not consulted with the Tribes regarding the Graphite One mine.

The DoD wants to expedite the project because there is currently no domestic manufacturing of graphite in North America, and graphite is an essential ingredient for both renewable energy technologies and weapons manufacturing. While local Tribes oppose the mine, many Tribal members feel that mine development is inevitable, especially given that the Graphite One mine is on State land (and thus...

Front Matter

Mon, 21 Oct 2024 00:00:00 +0000

Front Matter

Climate Change Loss and Damage: A Case for Mandatory Cooperation and Contribution under the United Nations Convention of the Law of the Sea (UNCLOS)

Mon, 29 Apr 2024 00:00:00 +0000

While climate change impacts all countries around the world, many of the most vulnerable countries are not just the lowest historical greenhouse gas emitters, but also have the least financial capacity to deal with climate loss and damage. It is thus a matter of climate justice to set up an effective loss and damage fund, which provides fast finance following extreme weather orc limate-related disaster events, and funding to address the negative impacts of slow-onset climate events such as sea level rise.

Although the recent COP28 finally operationalized a loss and damage fund, this Article explores how it remains voluntary and inadequate. This Article elaborates on the justifications, background and weaknesses of the current loss and damage regime, before proposing some solutions. This Article argues that the United Nations Convention on the Law of the Sea (“UNCLOS”) is an effective tool to ensure mandatory cooperation and contribution to a loss and damage fund, given...

Surfacing the Problems with Deep Sea Mining: The Need for a Cautious International Regime

Mon, 29 Apr 2024 00:00:00 +0000

Deep sea mining (DSM) is an increasingly controversial yet seemingly inevitable next step in humankind’s collective march toward a greener future. Advocates for DSM insist that the bounties of the ocean floor will help us mitigate the harms of climate change. Critics caution that a strong profit motive has made us careless and that the seemingly inconsequential damages apparent to DSM threaten even greater second-order consequences, not least of which is the elimination of various marine ecosystems. Beyond environmental risks, there exist major ethical concerns about the global distribution of licenses to harvest these underwater metals given that they are overwhelmingly located in international waters. Should mineral rights be distributed in accordance with some objective scheme for the benefit of all humanity, or is the seafloor to become the new “Wild West” where private interests reap all rewards? What of oft-overlooked Indigenous Peoples whose ancestral practices are more...

California's Sustainable Groundwater Management Act and the Half-Exemption of Owens Valley Groundwater Basin

Tue, 19 Mar 2024 00:00:00 +0000

This Comment tells the story of how California’s 2014 Sustainable Groundwater Management Act (SGMA) has been applied in Owens Valley. Owens Valley, called Payahuunadü by the Native Paiute and Shoshone people, is the source of the Los Angeles Aqueduct system that exports both surface water and groundwater to Los Angeles. Los Angeles’s involvement in the region led to SGMA’s half-exemption of Owens Valley Groundwater Basin where all portions of the groundwater basin underlying Los Angeles-owned land is exempt from the Act. This Comment explores how this half-exemption was included in SGMA, describes what it means for local groundwater governance, and details California’s Department of Water Resources’ shifting approach to Owens Valley that most recently weakened SGMA’s protections for the region.

This Comment makes direct recommendations to state and local agencies with the goal of better leveraging SGMA to protect Owens Valley Groundwater Basin. SGMA’s explicit protections...

Front Matter

Tue, 19 Mar 2024 00:00:00 +0000

Front Matter

Forever Chemicals in Modern Dinosaurs: Using CERCLA to Force Polluters to Pay for PFAS Contamination of Florida Alligators

Tue, 19 Mar 2024 00:00:00 +0000

First, this paper will describe what forever chemicals are and the damage these compounds inflict. This paper will then explore what a CERCLA NRD assessment is: a tool to protect the public from chemicals like PFAS. The goals of NRD assessments can be tied back to the Public Trust: a sovereign holding natural resources in public trust for the citizenry. After briefly discussing pending federal regulatory action, which would list PFOA and PFOS as hazardous and thus pull them under CERCLA’s jurisdiction, this paper will propose two potential solutions to the problems trustees face when asserting NRD claims. To illustrate these problems and their proposed solutions, this paper uses the Florida marine environment and one of the oldest and most treasured natural resources in the animal kingdom, the alligator, as a muse.

The first solution the paper proses is that Congress amend CERCLA to exempt public or municipal wastewater treatment facilities and waste management facilities...

Only YOU Can Prevent Immigration Detention: Analyzing the Ways Environmental Laws Can Close or Prevent the Opening of Toxic and Dehumanizing Immigration Detention Centers

Tue, 19 Mar 2024 00:00:00 +0000

This Comment looks at the ways in which environmental law can be used to both delay the opening of new immigration detention centers and shut down existing centers. This Comment is not advocating for unhousing undocumented folks, nor is it advocating for NIMBYist exclusion by white communities. At its core, the detention of migrants is wrong. The separation of families is wrong. Profiting off other people’s pain is wrong. Although this Comment discusses environmental law as an avenue of resistance, this Comment is part of a movement that asks for a complete reorganization and abolition of the United States’ current immigration system. Additionally, although this piece primarily highlights legal strategies, it is important to recognize the hard work of the advocates on the ground, who are protesting and taking direct action against detention centers and prisons. All the cases discussed below were the result of the combined labor of direct action and legal challenges. Failure...

Aia i Waiʻoli ke Aloha ʻĀina: Re-centering ʻĀina and Indigenous Knowledge for Restorative Environmental Justice

Thu, 9 Nov 2023 00:00:00 +0000

This Article explores Kānaka Maoli’s (Native Hawaiians’) work to re-center principles of Indigenous biocultural resource management in decisionmaking to more fully realize restorative environmental justice. To do so, it contextualizes ʻāina (land and natural resources) as Kānaka Maoli’s natural counterpart. Deploying a contextual inquiry framework to preserve and advance self-determination for Hawaiʻi’s Indigenous People, this practical approach begins with cultural context as a foundation, articulates the historical injustices and impacts of colonialism, and in particular, examines the work of the Waiʻoli Valley Taro Hui in the wake of devastating climate impacts, including flooding, to design a roadmap for future decisionmaking. In partnership with the William S. Richardson School of Law’s clinical courses, the Hui’s dilligent advocacy gives life to constitutionally protected traditional and customary rights in Hawaiʻi that have been excercised since time immemorial. Their work...

‘Promising More than It Delivers’?: A Critical Reading of the HRC’s Daniel Billy et al v. Australia (2022) Decision Linking Climate Change and Human Rights

Thu, 9 Nov 2023 00:00:00 +0000

The United Nations Human Rights Committee’s 2022 Decision, Daniel Billy et al. v. Australia (“Daniel Billy” or “the Decision”), brought by Indigenous Peoples residing on the Torres Strait Islands off the coast of Australia, is the first case before an international human rights body to find that a State’s failure to adopt timely climate adaptation measures violates the human rights of Indigenous Peoples living in that State. In Daniel Billy, the Human Rights Committee (“the Committee”) found a violation of the right to privacy, family, and home and the right to culture; but not the right to life. Drawing on the International Covenant on Civil and Political Rights (“the Covenant”), the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), and recent developments in the field of climate change and international human rights law (IHRL), this Comment discusses the significance and the limitations of Daniel Billy regarding the...

Front Matter

Thu, 9 Nov 2023 00:00:00 +0000

Front Matter

In Defence of the Trees: Presenting the Case for Ancient Forest Rights

Thu, 9 Nov 2023 00:00:00 +0000

This Article examines the important role old growth forests play in mitigating climate change and argues there now exists both a social imperative and legal basis for our courts to recognize legal rights for these precious few remaining ancient ecosystems.

The Article is written from a unique perspective. Using as context first person accounts from one of the authors’ two months living in an old growth forest and the events leading to her arrest during the largest civil disobedience protest in the history of Canada, the Article examines the disconnect between the current state of the law and science-based concerns about climate change. The Article describes one land defender’s thoughts and feelings as she contemplates the ancient ecosystem she seeks to protect, learns from First Nations’ Elders and encounters the Royal Canadian Mounted Police forces and frustrated loggers. The authors then present a legal analysis that addresses the science of old growth forests’ crucial...

REDD+ and the Promotion of the Human Rights of Indigenous Peoples: the Case of Chile

Thu, 9 Nov 2023 00:00:00 +0000

Indigenous peoples are particularly vulnerable to the negative effects of climate change, as their livelihoods and ways of life depend heavily on natural resources impacted by climate variability and extremes. In addition, global climate governance and the implementation of climate projects often have damaging consequences on Indigenous peoples, including restricting their access to lands and resources. In this context, REDD+ as an international mechanism under the UNFCCC aimed at mitigating climate change through forest management, has raised concerns about its impact on the human rights of Indigenous peoples. To date, studies have shown that the implementation of REDD+ on a domestic level has had both negative and positive impacts in Indigenous peoples’ rights. Drawn from this tension, this article examines the relationship between the REDD+ mechanism and the rights of Indigenous peoples, focusing on its domestic operationalization in Chile.

Chile, with a vast forest...

Rolling Easements as a Viable Tool to Address Rising Sea Levels in US Coastal Communities

Mon, 18 Sep 2023 00:00:00 +0000

This Article will first evaluate the viability of rolling easements as a tool to combat rising sea levels in US coastal communities. Then, it will propose how coastal municipalities can use the rolling easement doctrine established under the Texas Open Beaches Act as a model for balancing dual responsibilities of protecting private property rights and safeguarding public access to coastal waters. Finally, it will consider applications of rolling easements to states positioned along the Atlantic and Pacific coasts, namely in New Jersey and California, where sea levels are expected to rise considerably in upcoming decades and profoundly affect the lives of tens of millions of Americans.

Wolf Law

Mon, 18 Sep 2023 00:00:00 +0000

Various populations of wolves have been listed as threatened or endangered under the U.S. Endangered Species Act since the 1970s. But no listed species has aroused, and continues to arouse, so much controversy as the Northern Gray wolf. “Wolf law” is unique, odd, and often counterproductive—at least if the goal is to ensure the species’ survival and revitalize damaged ecosystems upon which healthy human communities depend. This Article identifies some of the unique characteristics of wolf law, analyzes how and why it has developed in this strange way, and proposes some more sensible ways for healthy human communities to coexist with healthy wolf communities.

We analyze how politics and human needs—rather than the needs of the wolves—have driven the U.S. Fish & Wildlife Service’s approach to wolf management, often to the detriment of the species it is legally obliged to protect. After reviewing the fundaments of the Endangered Species Act, we trace the history of Northern...

Managed Retreat – Funding Difficult Conversations and Initial Steps at the Local Level

Mon, 18 Sep 2023 00:00:00 +0000

Unnatural disasters, such as floods and wildfires, are making many areas difficult to inhabit. For relocation to unfold in a safer and more equitable way, it must be done in a manner that (1) aligns with community values in each locality, (2) navigates legal barriers to managed retreat, and (3) creates blue-sky funding for adaptation, including managed retreat planning and implementation. This paper argues that developers continuing to build in climate vulnerable areas could and should help cover the risk of their actions. Part I lays out the legal importance of planning for retreat, as well as the need for initial funding for community-level planning and experienced personnel. Few scholars have explored options for municipalities to fund difficult conversations about and initial steps towards managing retreat. Thus, Part II explores how community benefit agreements between communities and developers in climate-vulnerable areas could play a role in bridging the gap between research...

Natural Resource Property Customs

Mon, 18 Sep 2023 00:00:00 +0000

This Article examines the role that property customs played in the development of American mining law. It analyzes how small communities of international miners developed systems of property governance and how those customary systems led to the shaping of mineral ownership and mining legislation in America.

Natural resource communities often rely on custom as a form of governance and assertion of property ownership. Resource-based knowledge transfer and relative isolation from established legal systems ensured these customs flourished. But the legislation of these natural resource property customs does not necessarily promote a governance framework that benefits all stakeholders.

This Article begins with a study of mining communities and how a uniques ystem of property ownership flowing from natural resource customs encouraged mineral development and wealth accumulation. These customs were developed by global mining communities over centuries and even millennia....

Front Matter

Mon, 18 Sep 2023 00:00:00 +0000

Front Matter

Wed, 19 Jul 2023 00:00:00 +0000

Front Matter

Climate Change in the Bahamas: Using International Norms of the Sea to Slow the Warming of Bahamian Waters

Wed, 19 Jul 2023 00:00:00 +0000

Small island developing states (SIDS) are experiencing climate change not just as a threat to their lifestyle, but as an immediate threat to their existence. Climate change poses unique risks to these islands, due to their small size, low-lying nature, lack of infrastructure, and minimal adaptation resources. Furthermore, climate change impacts the sea more than most other ecosystems. Ninety percent of global warming is occurring in the world’s oceans. Because SIDS are exceptionally dependent on the ocean for natural resources and various sources of income, their continued existence is dependent upon both fighting climate change and protecting oceans.

This paper will argue that the international tools being used to protect the world’s oceans can also be effective tools to fight climate change. As greenhouse gas emissions continue to intensify ocean warming and irreparably harm ocean resources, SIDS can argue that these emissions violate internationa ltreaties and customary...

Addressing Climate Impacts in Alaska Native Tribes: Legal Barriers for Community Relocation due to Thawing Permafrost and Coastal Erosion

Wed, 2 Nov 2022 00:00:00 +0000

Rural communities is Alaska—predominantly Alaska Native Tribes—are at the forefront of climate change impacts and climate justice concerns in the United States. According to the 2019 Alaska statewide threat assessment report, 29 communities are currently experiencing significant climate change-related erosion. Further, 38 communities faces significant flooding, and 35 have major problems with thawing permafrost. Some Alaska Native communities have explored community relocation to adapt to these impacts. Because federal law does not recognize gradual environmental impacts like thawing permafrost and coastal erosion as disasters, these communities are ineligible for disaster funding and struggling with how to adapt to the very urgent—albeit less immediate—issues that they face.

This article analyzes the chalenges of Alaska Native Tribes attempting to access federal assistance for community relocation. While some posit that the federal trust responsibility for Tribal Nations...

Restorative Energy Justice

Thu, 30 Jun 2022 00:00:00 +0000

While distributive justice and procedural justice have received substantial attention from energy scholars, recent work identifies restorative justice as an underdeveloped component of the energy justice framework. As conceived in the context of criminal law, restorative justice seeks to more precisely account for harms and obligations that arise from wrongdoing, and to widen the circle of participation in repairing those harms. Restorative environmental justice wields these principles to advance the environmental justice framework beyond a tight focus on disparate environmental and health impacts. Restorative energy justice faces the challenge of deploying this restorative approach in an energy landscape that is often tightly focused on technology choices and business concerns.

In Hawai‘i, we find an opportunity to operationalize the concept of restorative energy justice. The origin of Hawai‘i’s regulated electricity industry is indelibly intertwined with the illegal...

The SEC and Climate Risk

Wed, 8 Jun 2022 00:00:00 +0000

The time has never been better for the Securities and Exchange Commision (SEC) to regulate climate change disclosures; however, the agency has a poor track record in mandating climate and other specialized disclosures from public corporations. Its 2010 guidance on climate-related disclosures was sparsely enforced. Its 2012 conflict materials rule was partially invalidated by the courts, and in 2019 and 2020, the agency failed to include climate disclosures when modernizing rules and guidelines on corporate disclosures. These past failures were due to agency intertia, which was facilitated by a combination of a lack of political feasibility, strong business resistance to specialized disclosures (despite investor enthusiasm), and rising judicial hostility to the SEC. These past failures should not dictate agency approaches to climate disclosures moving forward. Regulating climate change is high on the agenda of the Biden Administration. Investors are demanding that public corporations...

The Fossil Fuel Phase-Out's Multi-Million Dollar Problem: An Environmental Justice Analysis Of Idle Oil Well Management in California

Wed, 8 Jun 2022 00:00:00 +0000

Throughout the state of California, oil operators will continue to abandon thousands of their oil wells within the coming years. With the growing threats of climate change, local, state and federal policymakers are looking away from fossil fuels and towards supporting renewable energy generation. In April 2021, California Governor Gavin Newson directed the California Air Resources Board (CARB) to begin evaluating paths to phasing out fossil fuel extraction in the state by 2045. The economic impact of the COVID-19 pandemic has also increased the risk of operators filing for bankruptcy and thus orphaning their wells. When an oil well stops operating, becoming idle, there are still many environmental and health related hazards remaining at the site. Uncapped idle wells are known to emit toxic and flammable gases, such as methane, a potent greenhouse gas. In addition, wells that are left unplugged can contaminate surrounding soil and water supplies.

In California, the process...

Front Matter

Wed, 8 Jun 2022 00:00:00 +0000

Front Matter

Come Hell or No Water: The Story of Sandbranch and the Unincorporated Community Fight for Public Services

Wed, 8 Jun 2022 00:00:00 +0000

Sandbranch is the only unincorporated community left in Dallas County, and the residents of this majority-Black, impoverished community have had their cries for basic necessities—such as clean, running water—largely ignored. With the County and the City of Dallas not remedying the problem so far, there is a question as to who is responsible for providing water and other public services to the community’s eighty residents. As it currently stands, Texas law simply permits local governments to offer assistance to unincorporated communities but does not mandate that affirmative measures be taken to ensure that these communities are provided for. What is the scope of the existing local government laws when it comes to getting public services to unincorporated areas, and what will it take for Sandbranch to finally get the resources it has been fighting to receive for decades?

Disparate Impact And Ecosystem Services As Tools For Community Activism

Wed, 8 Jun 2022 00:00:00 +0000

Environmental movements have been hindered in utilizing disparate impact as an effective legal mechanism for change. Since the 2001 Sandoval ruling limited the private right of action for Title VI disparate impact claims, environmental justice advocates have adopted the disparate impact framework as a persuasive tool to analyze, investigate, and challenge inequitable development. Concurrently, ecosystem services have blossomed as a growing field. The ecosystem services framework asserts that ecosystems providee conomic and health benefits for communities. However, this framework faces challenges with value recognition and visibility, lack of implementation within existing institutional frameworks, and inequitable access. This article explicitly combines the disparate impact and ecosystem services frameworks together to strengthen each other. Specifically, this article argues that incorporating ecosystem services within disparate impact analyses can provide new persuasive data...

Wed, 8 Jun 2022 00:00:00 +0000

Table of Contents

Human Rights and Wrongs: The Dark Canon of the United States Supreme Court in Environmental Law

Wed, 30 Mar 2022 00:00:00 +0000

This is the second in a series of critiques of the Supreme Court's jurisprudence on environmental law. The first series described three cases notable for their manipulation of facts and law and ill-concealed bias against environmental plaintiffs. One crippled the National Environmental Policy Act, the second crippled citizen standing to sue, and the third pivoted to undermine the safety of nuclear power plants.

The instant trio of cases add yet another troubling element to the canon. What distinguishes them, beyond the usual sleight-of-hand, is their failure to demonstrate the slightest understanding or concern for the plight of some of the most disadvantaged people on the planet. All of them brown.

The first case discussed, Northwest Indian Cemetery, denied First Amendment protection from the destruction of an entire Native American culture. The second case, Sandoval, effectively destroyed Title VI of the Federal Civil Rights Act. The third case,...

Establishing a Climate-Conscious Bill of Rights for California's Homeless

Wed, 30 Mar 2022 00:00:00 +0000

California's growing unhoused population, alongside the increasingly devastating impacts of climate change, necessitates action by California's state and local governments to protect unhoused communities from the current and anticipated impacts of climate change. Despite the public discourse surrounding both climate change and homelessness in California, policy-makers have frequently treated the two as separate and unrelated issues. failing to acknowledge how catch issue interacts with the other.

This failure has allowed unhoused persons' unique vulnerability to water insecurity, heat-related illness, and the spread of disease to remain divorced from policy discussions on how California must adapt to a new and harsher climate. In addition, sea level rise and wildfires will further contribute to California's housing shortage and overall unhoused population. The collective failure of California's state and local decision-makers to address this intersectionhas led to a patchwork...

CEQA Tribal Cultural Resource Protection: Gaps in the Law and Implementation

Wed, 30 Mar 2022 00:00:00 +0000

Assembly Bill No. 52 (AB 52) amended the California Environmental Quality Act (CEQA) in 2014 to mandate early tribal consultation prior to and during CeQA review, and it positions California Native American tribes as the experts on cultural resources within their own geographical areas. AB 52 affords tribal governments a seat at the decisionmaking table alongside public agencies and California local governments. The law also provides greater legal protection and demands more stringent consultation requirements than other historic and cultural resource protection statutes. However, despite formal advancement in tribal resource protection and recognition of tribal expertise, implementation of AB 52 is flawed. The purpose of this paper is to identify problems with the legislative language of AB 52 and gaps in its implementation to provide a point of reflection on how to improve government to government consultation.

Equitable Adaptation to Extreme Heat Impacts of Climate Change

Wed, 30 Mar 2022 00:00:00 +0000

Climate change has, and will continue to have, a disproportionate impact on communities of color. Already, it is clear that systemic racism has led to increased temperatures in predominantly Black neighborhoods as compared to white neighborhoods in the same cities. A legacy of discriminatory housing policies in California is correlated with worse air quality and health disparities, both of which could be further exacerbated as temperatures rise. As cities and states begin developing climate change adaptation plans, it is imperative that they develop equity-based solutions that take into account how discriminatory practices are leading to disproportionate climate impacts. If such impacts are not accounted for, they will be exacerbated in the future. This paper analyzes equity-based climate adaptation strategies for heat, which is already the deadliest weather-related disaster in the U.S., and how they could be applied to Los Angeles.

Time to Wake Up! Pushing the Boundaries in the Americas to Protect the Most Vulnerable

Wed, 30 Mar 2022 00:00:00 +0000

It is time to wake up and push for the protection of the environment and against climate change. Vulnerable communities around the world are living in polluted, highly toxic, and unsustainable environments. It is time to protect them through a human rights-based framework. This article proposes that the Inter-American right to a healthy environment provides the possibility of protecting the human rights of the most vulnerable in the Americas by providing a rights-based framework for them to vindicate their environmental human rights. This article focuses on vulnerable populations who have been historically marginalized and discriminated against and/or who are reliant on the natural resources in their environments. This article posits that the "greening" of human rights, which is the traditional approach to the protection of environmental human rights, is not sufficient to protect vulnerable non-indigenous populations without protection. It is for this reason that we, as a society,...

Front Matter

Wed, 30 Mar 2022 00:00:00 +0000

Front Matter

Wed, 30 Mar 2022 00:00:00 +0000

Table of Contents

Climate Change and the Vulnerable Occupied Palestinian Territories

Fri, 19 Mar 2021 00:00:00 +0000

Two of the most commonly discussed responses to climate change are mitigation and adaptation. It is necessary that the world continues to mitigate greenhouse gases in the atmosphere to prevent the most severe effects of climate change, but it is just as important that adaptation measures are implemented to prepare for the unmitigable effects. With the ongoing Israeli occupation—now reaching its fifty-third year—Palestinians in the Occupied Palestinian Territory (OPT) are prohibited from accessing resources and pursuing necessary measures to repair their existing infrastructure or prepare for the environmental effects of climate change. As such, this Comment sheds light on the Palestinian voice, struggle, and experience while examining climate impacts under occupation by analyzing the environmental, political, legal, and humanitarian impacts of climate change on Palestinians in the OPT.

Fracking in Pueblo and Diné Communities

Fri, 19 Mar 2021 00:00:00 +0000

Fracking must be regulated from a tribal perspective and ultimately phased out by renewable energy sources in order to prevent environmental contamination and threats to health and safety. Like many other components of extractive industry, fracking disproportionately harms indigenous communities due to the socioeconomic status of indigenous communities, their unique relationship to the land (and specifically to water), and other harmful effects of colonization and racialization. This Comment explores the proposed and ongoing fracking near Chaco Canyon and discusses the environmental justice issues this raises for indigenous communities in New Mexico. This discussion is timely, as the Bureau of Land Management and the Bureau of Indian Affairs recently released the long-awaited Farmington Mancos-Gallup Draft Resource Management Plan Amendment and Environmental Impact Statement, which amends the original Environmental Impact Statement for the Chaco Canyon area....

Retooling Environmental Justice

Fri, 19 Mar 2021 00:00:00 +0000

This Article responds to environmental justice arguments that undermine, rather than safeguard, health and environmental quality for low-income and minority populations. Efforts by scholars and practitioners to clearly define “environmental injustice” to facilitate use of racial discrimination legal frameworks have had minimal success and are ultimately limiting the ability to embrace a broader arsenal of weapons in the fight against injustice. The greatest weapon of the environmental justice movement is its people. Environmental justice must evolve more rapidly beyond efforts to merely give communities voice, and actually redistribute power and decision making to open up opportunities for social movement intersection. The struggle to define environmental justice is difficult because it attempts to crystalize the efforts of converging social movements that continue. This Article advocates more explicit acceptance of environmental justice as a movement...

Fri, 19 Mar 2021 00:00:00 +0000

Table of Contents

Front Matter

Fri, 19 Mar 2021 00:00:00 +0000

Front Matter

Can the U.S. Constitution Encompass a Right to a Stable Climate? (Yes, it Can.)

Fri, 19 Mar 2021 00:00:00 +0000

Can the U.S. Constitution encompass a right to a stable climate? Courts around the world are finding that their constitutions afford a right to a clean and healthy environment, including to a safe climate. In the United States, this claim is being tested in the case of Juliana v. U.S., brought by 21 children arguing that governmental actions and inaction have caused or contributed to an “environmental apocalypse” in violation of a fundamental constitutional right to a stable climate. In concluding that the Constitution can encompass a right to a stable climate, we make three principal arguments. First, the Constitution is relevant to the protection of people’s lives and liberties—a position that should be beyond cavil after more than 230 years of our constitutional experiment. Second, the Constitution’s protection is not abrogated simply because the threat to life and liberty comes from decades of governmental action contributing to climate...

When the Well Runs Dry: Groundwater Policy and Sustainability Post–Agua Caliente

Fri, 2 Oct 2020 00:00:00 +0000

In the height of a seven-year drought in California, The Agua Caliente Band of Cahuilla Indians (the Tribe) sued the Coachella Valley Water District and Desert Water Agency (Together as “Water Districts”) to secure their right to groundwater stored in the Coachella Valley Aquifer (Aquifer). The Aquifer, like most groundwater resources in California, was severely taxed during the drought. This forced California to respond by passing the Sustainable Groundwater Management Act (SGMA), the first groundwater regulation in the State’s history. SGMA requires “sustainable groundwater management” for all basins by creating Groundwater Sustainability Plans (GSPs). These plans are, in effect, stakeholder negotiations on basin management. Basin adjudications will likely occur if these negotiations break down. In Agua Caliente Band of Cahuilla Indians v. Coachella Water District, the Ninth Circuit became the first federal court to expand the definition of Winters...

Fri, 2 Oct 2020 00:00:00 +0000

Table of Contents

Front Matter

Fri, 2 Oct 2020 00:00:00 +0000

Front Matter

Establishing Floating Offshore Wind Development in Oregon: Lessons From East Coast State Policy Tools Promoting Offshore Wind

Fri, 2 Oct 2020 00:00:00 +0000

In the past several years, offshore wind developments have increased across Europe, Asia, and the Eastern United States. This Comment analyzes the policy tools that East Coast states use to promote offshore wind development and to help overcome the economic, environmental, and land use barriers to offshore wind. The Comment analyzes policy tools, including (1) establishing an aggressive state Renewable Portfolio Standard (RPS), (2) passing procurement mandates for certain level of offshore wind development, and (3) funding investment in infrastructure, education, and research and development. Lastly, the Comment analyzes Oregon’s energy sector and applies the lessons from the East Coast state policy tools to make recommendations for policy actions that Oregon could adopt to promote offshore wind development.

The Sustainable Groundwater Management Act and the Common Law of Groundwater Rights—Finding a Consistent Path Forward for Groundwater Allocation

Fri, 2 Oct 2020 00:00:00 +0000

In 2014, the California State Legislature enacted the Sustainable Groundwater Management Act (SGMA), which requires the formation of new local agencies, known as Groundwater Sustainability Agencies (GSAs), to sustainably manage groundwater basins throughout the state. The statute represents the first statewide framework for groundwater management in California. Among other tasks, GSAs, especially those in overdrafted basins, will have to allocate available water among users and set up systems to hold pumpers to their allocated limit. However, SGMA did not change the longstanding framework of groundwater pumping rights established by California courts. This sets up the possibility of conflict between groundwater allocation plans adopted by GSAs and water rights.

This Article analyzes the relationship between SGMA and water rights under the common law. It identifies a path for GSAs to allocate groundwater and limit pumping in a manner best situated to sustain judicial...

The Operationalization of the Principle of Free, Prior and Informed Consent: A Duty to Obtain Consent or Simply a Duty to Consult?

Fri, 2 Oct 2020 00:00:00 +0000

The principle of free, prior and informed consent (FPIC) was introduced as a way of safeguarding indigenous peoples’ right to self-determination and their right to freely determine their own economic, social and cultural development. This Article explores how FPIC has been operationalized in the context of natural resource extraction on indigenous land by taking a closer look at the operationalization of this principle in Colombia. The Article also aims to showcase the difference between FPIC and the duty to consult, and explains to what extent the former one is more preferable to the latter one.

The Price of Sovereignty in the Era of Climate Change: The Role of Climate Finance in Guiding Adaptation Choices for Small Island Developing States

Fri, 2 Oct 2020 00:00:00 +0000

Climate change poses an existential threat to small island developing states that are at risk of losing their territories to sea-level rise and severe weather events. These nations must make decisions about how to preserve their sovereignty and create a meaningful future in the face of imminent territorial loss. Territorial loss creates a risk of displacement and statelessness, and the world has yet to confront the possibility of a permanently deterritorialized island nation. Against this backdrop, small island developing states must choose, design, and finance adaptation options to preserve their status as sovereigns and enable them to design a self-determined future, be it on their existing islands, artificial islands, or a resettlement elsewhere. Adaptation measures, however, are beyond the financial means of most small island communities.

This Article explores adaptation options for small island developing states and the financial mechanisms available to support...

California Carbon Offsets and Working Forest Conservation Easements

Fri, 28 Feb 2020 00:00:00 +0000

California’s cap-and-trade system is a vital laboratory for testing the effectiveness of this market-driven approach in meeting greenhouse gas emission reduction goals and the use of forestry-based carbon offsets within these systems generally. Based on this experience, this Article explores one of the primary challenges, layering offsets with working forest conservation easements, which currently limits opportunities to effectively use these tools in concert. Ultimately, this market may need to foster and rely on natural linkages with working forest conservation easements to develop these offsets and to better ensure that the critical societal objectives of these projects are being met.

Downsizing National Monuments: The Current Debate and Lessons From History

Fri, 28 Feb 2020 00:00:00 +0000

Downsizing National Monuments: The Current Debate and Lessons From History

A Perfect Storm: Environmental Justice and Air Quality Impacts of Offshore Oil and Gas Development in the Arctic Outer Continental Shelf

Fri, 28 Feb 2020 00:00:00 +0000

The Arctic Outer Continental Shelf is the next great legal battleground over oil and gas resources, environmental protection, and environmental justice. The Arctic is home to an array of sensitive ecological resources and a large Native Alaskan population that relies heavily on the natural environment for food and supplies. The Arctic Ocean also holds a vast amount of untapped oil and gas resources that had previously been largely inaccessible because of harsh climatic conditions and withdrawals of large swaths of the Shelf by Congress and multiple presidents. However, climate change is melting Arctic sea ice and opening up previously inaccessible areas. In addition, President Trump is pushing to expand oil and gas development everywhere, including the Arctic. If President Trump’s plans prevail against the many legal challenges seeking to protect the Arctic, Native Alaskans will face a multitude of threats to their health, safety, and way of life.

Scholars, journalists,...

From Attleboro to EPSA: The Pace of Change and Evolving Jurisdictional Frameworks in the Electricity Sector

Fri, 28 Feb 2020 00:00:00 +0000

This Article compares the pattern of fundamental change, legal and regulatory response, and judicial adaptation underlying the electricity sector’s twentieth century beginnings to its current and ongoing rapid transition. This comparison is then used as a basis to examine and contextualize the collaborative federalism jurisdictional framework that the Supreme Court employs when adjudicating modern-day jurisdictional disputes in the sector.

The early 1900s saw a period of rapid industry expansion, with the electricity sector progressing from small intrastate utilities to a sprawling interstate grid. The expanding grid rapidly outgrew the state-led regulatory framework that had organically developed. In turn, Congress responded by passing the Federal Power Act to fill what is now known as the Attleboro gap. Courts in turn needed to resolve consequent jurisdictional tensions that arose under the new federal and state balance of authority. The courts employed a bright-line...

Front Matter

Fri, 28 Feb 2020 00:00:00 +0000

Front Matter

Fri, 28 Feb 2020 00:00:00 +0000

Table of Contents

Integrating Green Infrastructure Into Stormwater Policy: Reliability, Watershed Management, and Environmental Psychology as Holistic Tools for Success

Fri, 28 Feb 2020 00:00:00 +0000

As cities continue to expand, the issues of flood control and urban water quality have become major modern sustainability challenges. Green infrastructure—the use of nature-based solutions to target, treat, and store stormwater at its source—has emerged as a possible solution. While green infrastructure does offer multiple benefits for urban users, its performance is also highly variable. This Article addresses a key gap in existing literature by explicitly addressing how uncertainty in environmental and anthropogenic factors affects green infrastructure performance and integration within the Clean Water Act’s municipal separate storm sewer (MS4) regulatory program.

Fri, 6 Dec 2019 00:00:00 +0000

Table of Contents

Prior Appropriation and the Commons

Fri, 6 Dec 2019 00:00:00 +0000

Prior Appropriation and the Commons

Incorporating Analysis of Sea-Level Rise Into Environmental Impact Reports

Fri, 6 Dec 2019 00:00:00 +0000

Incorporating Analysis of Sea-Level Rise Into Environmental Impact Reports

An Analysis of the International Climate Change Adaptation Regime and its Response to Global Public Health Concerns

Fri, 6 Dec 2019 00:00:00 +0000

Since climate change action has been on the international agenda, policies have focused on mitigating the issue with proposals to reduce emissions and increase sinks of greenhouse gases in an attempt to limit the extent of climate change damages. However, the likelihood of slowing down climate change enough to prevent detrimental changes is quickly diminishing. The recognition of this problem is exemplified by the international climate change regime’s growing focus on measures that seek to encourage capacity-building efforts to face climate change impacts and strengthen resilience. Existing climate change impacts are especially apparent in the context of global public health. Impacts on health can be seen through victims of severe weather, heatwaves, air pollution, malnutrition, and the rise in infectious diseases. Protection against global health problems requires international cooperation and governance. The United Nation’s Framework Convention on Climate Change has the potential...

The Legal Landscape of America's Landlocked Property

Fri, 6 Dec 2019 00:00:00 +0000

The Legal Landscape of America's Landlocked Property

Front Matter

Fri, 6 Dec 2019 00:00:00 +0000

Front Matter

Fri, 3 May 2019 00:00:00 +0000

Front Matter

CRISPR's Creatures: Protecting Wildlife in the Age of Genomic Editing

Fri, 3 May 2019 00:00:00 +0000

Recent advances in genome editing technology have opened the door for scientists to explore beneficial applications of genome editing for wildlife biodiversity and public health. These advances, referred to as the CRISPR toolkit in this Article, can be combined with gene drives to repair damaged ecosystems, enhance conservation efforts, save endangered species, address climate change, prevent diseases, and promote public health. However, the introduction of edited creatures could also negatively impact the original species and disrupt the surrounding ecosystem. Moreover, humanity’s power to manipulate wildlife genes and essentially create evolution by artificial selection also poses significant moral, ethical, and social concerns.

Existing statutes and regulations do not sufficiently address the application of this novel genome editing technology to wildlife. First, the federal regulatory regime for biotechnology is outdated, incohesive, and does not efficiently address...

Fri, 3 May 2019 00:00:00 +0000

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Purifying Water: Responding to Public Opposition to the Implementation of Direct Potable Reuse in California

Fri, 3 May 2019 00:00:00 +0000

Direct Potable Reuse (DPR) is a method of recycling wastewater to create a potable water source. DPR is a particularly useful technology in arid, drought-prone regions, including California, because it is a self-sustaining water source. Despite being safe, efficient, and useful, potable reuse methods, including DPR, have faced intense public opposition. Such opposition has stopped several projects in California.

In January 2018, California State Assembly Bill 574 (AB 574) took effect. AB 574 requires California’s State Water Resources Control Board to adopt regulations for DPR by 2023, so long as the regulations are found to adequately protect public health. Once adopted, California would become the first state to have uniform regulations for DPR. But while uniform regulations will be an important step toward the realization of DPR technology, California’s success in implementing DPR will ultimately depend on public acceptance of DPR as a legitimate source of water.

This...

The Bureau of Environmental Justice and Change From the Top

Fri, 3 May 2019 00:00:00 +0000

The Bureau of Environmental Justice and Change From the Top

The Coastal Property Boundary in California: Recommendations to Improve Determination of the Mean High Tide Line in Light of Sea Level Rise

Fri, 3 May 2019 00:00:00 +0000

The Coastal Property Boundary in California: Recommendations to Improve Determination of the Mean High Tide Line in Light of Sea Level Rise

Errata

Mon, 19 Nov 2018 00:00:00 +0000

Errata

The Carbon Tax Vote You've Never Heard of and What It Portends

Fri, 26 Oct 2018 00:00:00 +0000

Many aspects of carbon taxes have been studied in the academic literature. This paper focuses on an area that has received insufficient attention by examining some of the specific institutional challenges a carbon tax proposal would face in Congress. A relatively unknown recent debate in the House of Representatives over a resolution to denounce the concept of carbon taxes provides a window into these challenges, demonstrating the arguments and tactics that can impede solution-oriented action to address climate change. Developing a policy that responds to these arguments is likely to add complexity to a carbon tax proposal, to increase the number of congressional committees involved in consideration of the proposal, and to create additional demand for the revenue that a proposed carbon tax would generate. Moreover, opponents of a policy can exploit these complicating factors and the lengthy time needed in Congress to consider legislation, so they can preemptively attack...

Fri, 26 Oct 2018 00:00:00 +0000

Table of Contents

Stopping Livestock's Contribution to Climate Change

Fri, 26 Oct 2018 00:00:00 +0000

Stopping Livestock's Contribution to Climate Change

Federal Lands, Federal Authority: The Case for Federal Regulation of Fracking on Public Lands

Fri, 26 Oct 2018 00:00:00 +0000

Hydraulic fracturing, or “fracking,” continues to grow rapidly as an oil and gas extraction method in the United States, and its growth has recently led to the emergence of natural gas as the nation’s new leading energy source for power generation. However, the hydraulic fracturing process carries innumerable environmental and health-related concerns, and federal regulations to address these concerns have struggled to keep up with the blistering pace of fracking’s growth and development within the United States.

In 2015, the Bureau of Land Management (BLM), under the Obama administration, promulgated a rule to ‘complement’ its regulations with respect to hydraulic fracturing on federal and Indian lands, citing the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA) as sources of statutory authority. This 2015 Fracking Rule faced intense opposition, first from industry and state parties within the federal court system, and later from the BLM...

Troubled Water: Building a Bridge to Clean Energy Through Small Hydropower Regulatory Reform

Fri, 26 Oct 2018 00:00:00 +0000

Troubled Water: Building a Bridge to Clean Energy Through Small Hydropower Regulatory Reform

Front Matter

Fri, 26 Oct 2018 00:00:00 +0000

Front Matter

Sequestering Carbon Dioxide Undersea in the Atlantic: Legal Problems and Solutions