Environmental Law


Schools, Safety, and Semantics: A Review of Menstruation Matters

Claudia Polsky

It is possible to menstruate for forty-six years without ever considering menstrual politics as a compelling intersectional sphere that embraces gender, race, class, health, and environmental concerns. It is not possible, however, to read Menstruation Matters: Challenging the Law’s Silence on Periods and fail to grasp the scope of the policy problems and opportunities that menstruation presents.

This Review presents one lawyer-activist-reader’s perspective on three distinct themes in the book: menstruation and education, the health and environmental aspects of menstruation, and menstrual politics as a site of intense semantic contestation. This grab sample of Menstruation Matters reflects my own areas of experience and expertise. It also demonstrates the book authors’ impressive range as they explore well beyond their core disciplines of tax and constitutional law to present a lucid and comprehensive picture of the diverse issues that periods implicate.

I share with the authors a hope that the ever-growing movement for menstrual equity provides proof of concept for an expansive vision of human dignity and flourishing that benefits all of its constituent movements.

Overfiling and Under-Enforcement

Hannah R. Miles

Environmental regulation is accomplished through a system of cooperative federalism—the federal Environmental Protection Agency (EPA) sets nationwide standards for various pollutants, but the responsibility for granting permits, inspecting facilities, and punishing violations is generally delegated to state agencies. This power-sharing arrangement has frequently created tensions between the federal and state environmental agencies. Overfiling is one of the most contentious of these tensions; it occurs when the federal government files an enforcement action against a polluter for a violation of a federal environmental statute after the delegated state agency has reached a settlement with the same polluter for the same violation. While overfiling occurs very rarely, it is a critical component of the cooperative federalism arrangement, and in this Note, I propose that it should occur more frequently in order to ensure that state agencies are not using low enforcement to de facto create a more hospitable landscape for polluters and damage public health and the environment.

Local Law 97: Emissions Trading for Buildings?

Danielle Spiegel-Feld

In April of 2019, the New York City Council passed groundbreaking legislation capping the amount of greenhouse gases that large building owners can emit, or cause to be emitted, before heavy fines are imposed. The new law, known as Local Law 97 of 2019 (“Local Law 97”), holds great promise for reducing building energy use, which accounts for roughly forty percent of emissions across the globe and over two-thirds of emissions in New York City. However, it will also impose substantial costs on the local real estate industry. With an eye towards minimizing these costs, Local Law 97 calls on the City to conduct a study exploring the potential creation of an emissions trading program for regulated buildings. Trading programs have been successfully used for years in industrial sectors to reduce the administrative cost of emissions control, yet how to translate the lessons learned from industrial trading programs to buildings is still very much an open question. In this essay, I highlight some key points of distinction between the emissions trading program that New York City is contemplating and prior programs that policymakers will need to bear in mind as they develop a trading scheme for this novel context. As the federal government retreats from its efforts to tackle climate change, and the burden of doing so falls increasingly upon local leaders’ shoulders, the question of how to tailor emissions trading programs to the local landscape will doubtless be relevant for cities beyond New York. Because emissions trading programs, like other types of market-based environmental policies, are designed to lower the cost of achieving environmental goals, cities that successfully implement emissions trading programs may be able to tackle climate concerns more effectively.

Protecting Evolutionary Potential: Can the Endangered Species Act Save Species Before They Exist?

Natalie Jacewicz

As popularly conceived, environmental conservation is a backward-looking exercise that aims to restore and protect the biodiversity of our parents and grandparents. But this static view of nature is a fiction. Scientists have grown increasingly aware that species are still evolving and, in some cases, doing so rapidly. What’s more, scientists are beginning to be able to make predictions about when and how evolution will occur. This Note argues that such nascent biodiversity is worthy of protection. Furthermore, the text and purpose of the Endangered Species Act require protecting populations likely to evolve in the foreseeable future. Without changing the administrative criteria for implementing the Act, agencies could protect nascent biodiversity under the statutory provisions covering threatened “distinct population segments.” Finally, this Note responds to some possible difficulties with this approach. As scientific understanding of evolution and biodiversity continues to advance, agencies must consider that their statutory mandate is not to recreate the past, but to enrich the future.

Regulation and Distribution

Richard L. Revesz

This Article tackles a question that has vexed the administrative state for the last half century: how to seriously take account of the distributional consequences of regulation. The academic literature has largely accepted the view that distributional concerns should be moved out of the regulatory domain and into Congress’s tax policy portfolio. In doing so, it has overlooked the fact that tax policy is ill suited to provide compensation for significant environmental, health, and safety harms. And the congressional gridlock that has bedeviled us for several decades makes this enterprise even more of a nonstarter.

The focus on negative distributional consequences has become particularly salient recently, playing a significant role in the 2016 presidential election and threatening important, socially beneficial regulatory measures. For example, on opposite sides of the political spectrum, environmental justice groups and coal miner interests have forcefully opposed the regulation of greenhouse gases through flexible regulatory tools in California and at the federal level, respectively.

The time has come to make distributional consequences a core concern of the regulatory state; otherwise, future socially beneficial regulations could well encounter significant roadblocks. The success of this enterprise requires significant institutional changes in the way in which distributional issues are handled within the executive branch. Every president from Ronald Reagan to Barack Obama has made cost-benefit analysis a key feature of the regulatory state as a result of the role played by the Office of Information and Regulatory Affairs, and the Trump administration has kept that structure in place. In contrast, executive orders addressing distributional concerns have languished because of the lack of a similar enforcement structure within the executive branch. This Article provides the blueprint for the establishment of a standing, broadly constituted interagency body charged with addressing serious negative consequences of regulatory measures on particular groups. Poor or minority communities already disproportionally burdened by environmental harms and communities that lose a significant portion of their employment base are paradigmatic candidates for such action.

Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions

Katherine A. Rouse

What happens when a presidential administration fails or refuses to properly administer our nation’s environmental laws? Thanks to the design of our federal environmental statutes, American citizens are armed with a valuable legal tool to hold the Environmental Protection Agency (EPA) accountable: the citizen suit. Environmental citizen suits allow private citizens to sue the EPA to require it to carry out its statutory duties, and can be a valuable mechanism in the face of a presidential administration unsympathetic to environmental protection. Because citizen suit provisions allow citizens to sue the EPA Administrator for failing to perform an action or duty that is nondiscretionary under the statute, the permissibility of lawsuits frequently turns on judicial interpretation of the term “nondiscretionary duty.” There is currently a split across the federal courts as to how to construe this term. In fact, the case law on this topic has become somewhat muddled, with disparities arising among district courts and few courts of appeal ruling conclusively on the issue. Some courts have narrowed the term, thereby limiting opportunities for citizen suits. A primary disagreement is whether the presence of the word “shall” in a statutory provision is sufficient to impose a nondiscretionary duty or whether more is required. Some courts have determined that a duty is discretionary unless the provision also includes a “date-certain” deadline, requiring the Administrator to perform the prescribed action by a specific date that appears within that part of the statute. Other courts have resisted adopting a bright-line rule requiring a date-certain deadline before imposing a nondiscretionary duty on the Administrator. The Supreme Court has not spoken on this date-certain deadline rule. This Note will explore how courts have interpreted the term nondiscretionary duty in environmental citizen suit provisions. This Note argues that the federal judiciary as a whole should abandon the date-certain deadline rule and side with courts that construe nondiscretionary duty more broadly. This reading can be supported legally, and will ensure that citizens are able to sue to compel EPA action even when a presidential administration fails to carry out important environmental laws and regulations.

Enough of this Manure: Why the EPA Needs to Define the Agricultural Stormwater Exemption to Limit the “Runoff” from the ALT Court

Emily Kenyon

This Note challenges the Alt court’s restriction of the EPA’s authority to regulate Concentrated Animal Feeding Operations (CAFOs) and proposes that the EPA conduct a new rulemaking to address this issue. CAFOs pollute our nation’s waterways with contaminated manure, damaging our environment and injuring public health. Recognizing their potential to pollute, Congress included CAFOs within the statutory definition of a point source in the Clean Water Act in 1972. Fifteen years later, Congress amended the statute and exempted agricultural stormwater from the definition of a point source. Controversy surrounded the application of the agricultural stormwater exemption to CAFOs until 2003, when the EPA specified that the exemption only applied to precipitation-based discharges from the land application area of a CAFO when manure had been applied pursuant to prudent agricultural practices. Unfortunately, in Alt v. EPA, industry capitalized on the ambiguity in the Clean Water Act and secured a district court ruling expanding the agricultural stormwater exemption to include discharges outside the land application area, allowing CAFOs to further pollute our waterways. After providing the relevant history of CAFO regulation, this Note critiques the Alt decision—concluding that the court misinterpreted the agricultural stormwater exemption. Finally, it argues that the EPA should initiate a rulemaking and comprehensively define the agricultural stormwater exemption to prevent further environmental degradation and harm to human health.

Creating Markets for Ecosystem Services: Notes from the Field

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.

Making the Brand: Using Brand Management To Encourage Market Acceptance of Forestry Certification

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.

The Carbon-Neutral Individual

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.