Environmental Law

Ann Jaworski
Climate change is expected to have immensely detrimental effects on agriculture. Changing climate patterns will also make many locations inhospitable to the crops currently grown there. In order to mitigate the effects of climate change on agriculture, farmers should adapt by changing the mix of crops grown in a given location. Federal crop insurance masks incentives American farmers would otherwise have to adapt to climate change through crop choice. Large premium subsidies—with most insured farmers paying less than half of the actuarially sound premium—are a huge part of this problem. This Note explains the connection between crop choice and climate change. It then analyzes existing proposals for reforming the crop insurance system to better incentivize adaptation to climate change, and highlights some political and practical obstacles to doing so. Finally, it argues that a tiered subsidy system—in which crops at high risk of failure due to location-specific climate risks would receive lower subsidies—could be a feasible, incremental solution to the problem.
Jessica M. Wilkins

In June 2013, President Obama issued a memorandum directing the Environmental Protection Agency (EPA) to use its authority under Sections 111(b) and 111(d) of the Clean Air Act to address carbon pollution from new and existing power plants. Over two years later, the EPA issued the final rule, known as the Clean Power Plan, and a proposed federal plan that will be implemented in states that do not submit their own plan under the Clean Power Plan. Both the Clean Power Plan and the EPA’s proposed federal plan rely heavily on emissions trading programs to reduce carbon emissions in a cost-effective manner. Emissions trading programs set a cap on the total amount of a pollutant permitted and allow sources to buy and sell allowances based on how much of the pollutant each source is reducing or emitting. Opponents of the Clean Power Plan and its trading provisions are challenging the rule on the grounds that it is beyond the EPA’s authority under the Act.

This Note suggests that these emissions trading provisions are valid for two related reasons: first, the EPA has successfully implemented emissions trading programs under Section 110 of the Act in the past that demonstrate the agency’s longstanding history of using these programs; and second, emissions trading has been upheld by the Supreme Court as permissible under Section 110, and Section 111(d)—under which the Clean Power Plan was promulgated—contains two substantive references to Section 110. Taken together, the EPA’s past use of emissions trading programs and the statutory references in Section 111 suggest that the trading provisions in the Clean Power Plan and the proposed federal plan are a permissible exercise of the EPA’s authority.

Sheila Baynes

Congress enacted the critical habitat provisions of the Endangered Species Act (ESA) to provide a powerful tool for promoting the recovery of endangered and threatened species of plants and animals. However, agency recalcitrance and constant litigation have mired its efficacy, resulting in a tangled mess that fails to effectuate the recovery goal of the ESA. This Note disentangles that mess through the lens of the ongoing circuit split over the proper methodology for consideration of costs during critical habitat designation. Concluding that the Services’ favored method, the baseline method, is superior in its faithfulness to the statutory language and the intent of Congress, this Note warns that the baseline method’s legality will continue to be undermined until the Services promulgate proper regulatory definitions to support its internal logic.

Christina M. Argueta

Tourism is an increasingly important source of capital in numerous developing nations, and it accounts for an inflow of nearly $1.4 billion to Guatemala each year. Yet tourism also carries with it negative side effects, principally environmental and cultural degradation. International NGOs working in Guatemala tout a preservationist brand of tourism, yet anthropologists and environmentalists have documented how the tourism industry—and the NGOs that compose it—continually fall short of preservationist goals. This Note suggests that a solution to the industry’s harms lies in private regulation, specifically in a tourism-specific code of conduct. This Note demonstrates how a code would fit within the industry’s current regulatory scheme, explains why the NGOs that dominate the industry would adhere to a code, and identifies specific provisions that should be included in a code to directly target tourism’s environmental and cultural harms.


Michael A. Livermore & Richard L. Revesz

Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to determine the stringency of the National Ambient Air Quality Standards (NAAQS), arguably the most important federal environmental program, without considering the costs of achieving these standards. Instead, it must rely exclusively on health-related criteria. This Article argues that health-based standards, which are one of the principal approaches to setting the stringency of environmental requirements in the United States, exhibit two serious pathologies: the stopping-point problem and the inadequacy paradox. The stopping-point problem arises because there is no coherent, defensible way for EPA to set the permissible level of pollution based on health considerations alone. Moreover, contrary to the commonly accepted view, the NAAQS have generally been set at levels that are less stringent than those that would result from the application of cost-benefit analysis, giving rise to the inadequacy paradox. We urge a reinterpretation of the Supreme Court’s important decision in Whitman v. American Trucking Associations to avoid the inadequacy paradox.


Misty L. Archambault

Forestry certification seeks to lessen the environmental impacts of private forestry management practices by providing information to consumers. Certified producers attach a uniform label to their wood products to assure buyers that the products were produced in a sustainable manner. In the United States, forestry certification has existed for more than a decade, yet industry participation in such programs remains low. This Note argues that low industry participation results from a lack of consumer demand for certified forestry products and the failure of certification stakeholders to address this lack of demand. While there are many obstacles to increasing consumer demand, this Note suggests that brand management concepts taken from the field of marketing can help tackle these challenges and, in turn, help increase market acceptance of forestry certification in the United States.

James Salzman

Ecosystem services are created by the interactions of living organisms with their environment, and they support our society by providing clean air and water, decomposing waste, pollinating flowers, regulating climate, and supplying a host of other benefits. Yet, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author's recent experiences establishing a market for water quality in Australia, this Article examines the challenges and opportunities of an ecosystem services approach to environmental protection. This Article reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.

Sheila C. McAnaney

Forced migration from climate change has been a hot topic in academia and the media for almost two decades, partly because it puts a human face on the otherwise science heavy issue of climate change. Academics have put forward a number of international solutions for resettling displaced persons and financially supporting them and their host countries. However, these proposals often fail to account for the nature and scope of likely migration and the political realities of the international community. This Note adds to the literature by developing a framework for assessing the responsiveness and viability of any proposed solution to gaps in protection for climate displaced persons. It develops five principles based on a realistic examination of the nature and scope of climate displacement and the political realities of the climate regime, and it then evaluates leading academic proposals against those principles to discover which elements are the most efficient and realistic. Finally, this Note concludes by suggesting one possible nontreaty proposal that meets all five principles and fills existing gaps in protection.

Michael P. Vandenbergh & Anne C. Steinemann

Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated 60–80% over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly 8% of the world’s total, more than the total emissions of any other country except China, and more than several continents. We contend that it is desirable, if not imperative, that governments address emissions from individual behavior. This task will be difficult because individual behaviors, including idling cars and wasting electricity, are resistant to change, even when the change is rational. Mindful of the costs, we propose measures that have a high likelihood of success. We draw on norms theory and empirical studies to demonstrate how legal reforms can tie the widely held abstract norm of personal responsibility to the emerging concrete norm of carbon neutrality. We suggest that these legal reforms could push carbon neutrality past a tipping point, directly influencing many carbon-emitting individual behaviors and building the public support necessary for policymakers to address the remaining sources.

Michael M. Maya

In recent years, a number of states have passed comprehensive land use reform bills.1 Many of these statutes have appeared in response to the phenomenon of urban sprawl—a pattern of haphazard, automobile-dependent development on the fringes of existing cities. With rising personal incomes and persistent consumer demand for single-family homes on large lots in ethnically and physically homogeneous jurisdictions, urban sprawl has boomed. Fearful of the myriad costs of sprawl—which many commentators have chronicled—some states have acted to prevent it altogether. The most egregious costs of sprawl include the abandonment of urban centers, severe air and water pollution, and the loss of open green spaces. In economic terms, sprawl also vastly increases transportation costs for residents and workers who must travel greater distances to reach their homes, their jobs, and other destinations. Without statewide coordination, sprawl is difficult to prevent. For example, if one county prohibits the subdivision of its farmland into low-density residential lots, a neighboring county will not necessarily do the same. In fact, precisely because the restrictive county has stifled consumer demand, its neighbor may have greater incentives (in the form of spillover demand) to permit sprawling development. In addition, neither county is likely to be particularly well attuned to the negative effects of sprawl, which are often geographically and temporally dispersed and thus less salient for many local politicians. To combat these structural and political problems, some states have addressed sprawl as a matter of statewide, rather than local, concern.