Journal of Environmental Law and Litigation
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The Journal of Environmental Law and Litigation (JELL), has provided a national, unbiased forum for the discussion and presentation of new ideas and theories in environmental and natural resources law since 1985. JELL educates students for careers in environmental law, disseminates important information to the environmental community, and plays an integral role at the University of Oregon Law School's nationally and internationally recognized environmental law program.
A print copy of this title is available through the UO Libraries under the call number: LAW LIB. K 10 .O425
Digitized issues from 1986-present are available from HeinOnline (restricted to UO community members).
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Item Open Access A Just Solution to Port Pollution: Tailoring the Clean Ports Program to Ensure Equitable Distribution of Inflation Reduction Act Grants(University of Oregon School of Law, 2024-05-01) Hooks, Molly M.Pollution from shipping ports disproportionately harms low-income communities and communities of color. With an eye toward environmental justice, the Inflation Reduction Act will help mitigate this disparity. Specifically, its grants relating to zero-emission port equipment and technology, implemented through the new Clean Ports Program, have the potential to lessen the air pollution burden on near-port communities and further environmental justice. The government, however, must take measures to ensure this funding reaches and elevates the communities hit hardest by port pollution. These measures include targeting outreach efforts to under-resourced communities, using environmental justice research to guide decision-making, and providing transparent communication at every step of the implementation process.Item Open Access A Green New Foreign Practices Act: How to Enforce Corporate Environmental Responsibility(University of Oregon School of Law, 2024-05-01) Robbins, LaurenOne of the biggest challenges facing international environmental protection is enforcement. States are called upon by agreements such as the Rio Declaration and the U.N. Framework Convention on Climate Change to develop laws establishing liability for environmental damage by their private actors. Even when states have strong domestic emissions standards, companies often outsource their pollution to those with lax standards or little enforcement capacity — often in the Global South.Item Open Access From Eugene to Seattle: Analyzing the Prosecution of Environmental Crimes Within EPA Region 10(University of Oregon School of Law, 2024-05-01) Ozymy, Joshua; Ozymy, Melissa JarrellCriminal provisions in federal environmental law in the United States are reserved for the worst violations involving significant harm or culpable conduct, but we know little about how these crimes have been prosecuted within EPA Region 10, which includes the states of Alaska, Idaho, Oregon, and Washington. We use content analysis of 2,807 environmental crime prosecutions stemming from EPA criminal investigations, 1983–2022, and explore all 284 prosecutions occurring within Region 10 since 1983. We find defendants were cumulatively assessed over $196 million in monetary penalties, 947 years of probation, and 156 years of incarceration at sentencing. Forty-two percent of prosecutions focused on air pollution crimes, 19 percent hazardous substances, 13 percent water pollution, and 26 percent state-level crimes. We conclude by offering prescriptions for enhancing the criminal enforcement of the environment through structural budgetary investments, increased state-federal cooperation, and strengthening of criminal enforcement associations.Item Open Access Polluters Anonymous: How Exemptions to the Freedom of Information Act Contradict American Environmental Law(University of Oregon School of Law, 2024-05-01) Cramer, Benjamin W.The Freedom of Information Act (FOIA) includes exemptions that allow agency officials to withhold certain documents on a case-by-case basis. Two of those exemptions are relevant for the environmental matters described in this Article: Exemption 3 on types of information that can be withheld per the mandates of other statutes and Exemption 9 on information about wells that are drilled on public land in search of water or fossil fuels. This Article argues that exemptions to FOIA enable secrecy that contradicts that statute’s fundamental spirit of governmental openness, and the informational and public participation ideals of environmental law.Item Open Access Sustainable Housing in Three Steps Including Heat Island Overlay Zones(University of Oregon School of Law, 2024-05-01) Albertson, Thomas J.Under current models of sustainable housing, many local governments are attempting various methods to mitigate, to varying degrees, the inevitable human impact on the environment that arises from residential buildings. This Note anticipates a synthesis of these diverse approaches and, to this end, offers comparative international legal analyses of municipal ordinances designed to promote sustainable neighborhoods. This Note, however, is written for an American planning and development audience.Item Open Access Breaking Doctrinal Silos Between Environmental Law, Disability Law, and Torts to Stop the Spread of Infectious Disease Through Contaminated Indoor Air(University of Oregon School of Law, 2024-05-01) Bard, Jennifer S.This Article introduces a practical legal strategy for immediately implementing new scientific discoveries concerning disease transmission to improve indoor air quality and reduce infectious disease spread. This strategy transcends traditional legal silos and bridges these gaps by integrating three disciplines that seldom collaborate: disability law, negligence law, and state environmental law. In so doing, it assembles a toolkit of legal instruments to alleviate the burden of infectious diseases for all Americans in their daily lives — whether they are working, traveling, shopping, worshiping, attending school, or seeking health care.Item Open Access Slaying the Minotaur: Navigating the Equitable Apportionment Labyrinth to Create an Equitable Policy to Guide Water Management(University of Oregon School of Law, 2024-05-01) Richardson, Jesse J., Jr.This Article offers a short primer on water rights in the United States, contrasting eastern riparian water rights and western prior appropriation rights. Summaries of the Supreme Court’s opinions on equitable apportionment provide a concise history of the doctrine. The Article then attempts to glean a coherent test for determining equitable apportionment from the case law. Given the dramatic differences between the riparian and prior appropriation doctrines, the cases are then categorized and discussed based on the water rights regimes used by the contesting states. Finally, the Article draws conclusions from the cases and offers recommendations to improve the process.Item Open Access “Experimental Populations” Outside Historical Range Proposal: Will It Get the Frog Out of Hot Water?(University of Oregon School of Law, 2023-04-28) Miller, Carol J.; Meyer, John C.; Persons, Bonnie B.To address the impact of climate change on habitats of endangered and threatened species, the U.S. Fish and Wildlife Service is proposing a 2022 rule change to allow “experimental populations” to be introduced into habitat outside the species’ historical range. For essential experimental populations, habitat could be designated beyond current or historical range where “little to no habitat remains within the historical range of a species or where formerly suitable habitat . . . is undergoing, irreversible decline or change, rendering it unable to support one or more life history stages for the species.” A statutory prerequisite (under Endangered Species Act (ESA) section 10(j)) to designation of critical habitat for an experimental population is that “such population is essential to the continued existence of an endangered species or a threatened species.” The ESA defines “critical habitat” but does not separately define “habitat.” Designation of “critical habitat” has been complicated by the Weyerhaeuser v. FWS decision, in which the Supreme Court concluded that “critical habitat” must first be “habitat.”Item Open Access Factory Aquaculture vs. The Right to Food: The First Conflict on American Shores(University of Oregon School of Law, 2023-04-28) Heipt, WendyWhile the human right to food, or the ability to access adequate amounts of appropriate and available food, is included in international treaties and has been adopted by numerous countries across the globe, until recently the right was not legally possessed by any American. That changed in November 2021 when the people of Maine approved a state constitutional right to food amendment. Now that Mainers have this right, questions of how it will be implemented, who will be impacted, and what laws and regulations it will change have been widely debated. This Article examines the possible impact Maine’s constitutional right to food can have on large-scale aquaculture. For the past several years, Maine has been the focus for multiple companies seeking to build and operate supersized salmon fish farms in the United States. With the adoption of Maine’s constitutional right to food, a new element has been introduced into the debate about large-scale aquaculture—one that can impact the legal rights of the fishermen and advocates seeking modifications or a halt to these plans. After defining the right to food, this Article explains the similarities between large-scale aquaculture projects and large-scale factory farms. Following an examination of the conflict between land-based factory farms and the right to food, this Article offers ideas of how Maine’s right to food amendment can impact the current aquaculture debate in the state.Item Open Access The Functional Equivalence Doctrine: A Judicial Exception That Violates NEPA and Undermines the National Environmental Policy(University of Oregon School of Law, 2023-04-28) Hudson, ScottThe National Environmental Policy Act (NEPA) is the seminal environmental statute, providing the aspirational goal of a national environmental policy and a comprehensive environmental regulatory framework. Over the past five decades, however, Congress, the courts, and administrative agencies have limited NEPA with exemptions and exceptions. This paper evaluates the Functional Equivalence Doctrine and argues that this NEPA exception is contrary to the text, congressional intent, and goals of NEPA and is therefore illegal.Item Open Access Making Products out of Thin Air: Accelerating Direct Air Capture Technologies(University of Oregon School of Law, 2023-04-28) Pinhas, DolevPlacing a global emphasis on the adoption of carbon capture technology is necessary to achieve net-negative emissions. This Article focuses on scaling up the direct air capture market. Part I will explain the differences between the two main uses of captured carbon—geologic sequestration and carbon conversion to products—and will present the challenges of each carbon sequestration method. Part II will examine several challenges facing the carbon conversion method, including research, development, policies, and regulations. Part III will present breakthrough solutions of the carbon conversion method. Part IV will include recommendations for expanding the carbon capture and conversion markets and will emphasize the significant role government support plays in accelerating direct air capture technologies through research and development. Part V will emphasize the sociopolitical advantages of carbon capture and conversion. Part VI will explain why the carbon capture method should be used in addition to other mitigation measures, such as renewable energy and other green solutions.Item Open Access Fracked Regulation: How Regulatory Exemptions for Fracking Harm Tribal Waters(University of Oregon School of Law, 2023-04-28) Blount, SamanthaSeveral factors contribute to how fracking pollution affects water supplies, including the regulatory exemptions in federal environmental laws, the federal government’s complacency in monitoring and regulating the environmental effects of fracking, and the disregard for the role tribes play as co-sovereigns with states and the federal government. Regulatory exemptions located in federal laws governing water resources allow toxic pollutants to flow onto tribal lands and through drinking water supplies. Short of Congress eliminating these exemptions altogether, any solution for tribes to prevent toxic produced water from polluting their waters requires proper recognition of tribal sovereignty.Item Open Access The Price of Pesticides: Environmental and Economic Impacts of Using Neonicotinoids in Agriculture(University of Oregon School of Law, 2023-04-28) Alvernaz, SierraHoneybees are among the most prominent and important types of pollinators worldwide, with approximately thirty-five percent of world food crop production depending on honeybees and other pollinators. In the United States, the estimated value of insect pollination to agricultural production is $16 billion annually, and approximately three-fourths of that value is attributable to honeybees. The worldwide contribution of honeybees and other pollinators to global crop production for human food is valued at approximately $190 billion. Given the importance of honeybees and other bee species to food production, scientists and farmers have recently expressed concern about a possible “pollinator crisis” occurring over recent decades and have raised questions about the role neonicotinoids [nee oh-nick-oh-tin-oids] may be playing in this crisis.Item Open Access Climate Change, Human Mobility, and Climate Finance: Potential Linkages and Challenges(University of Oregon School of Law, 2023-04-28) Naser, Mostafa Mahmud; Reza, Hossain MohammadThe aim of this Article is to explore the probable approaches that can be considered by developing countries to secure finance from the existing funds for climate-related human mobility. With this goal in mind, this Article critically analyses the UNFCCC regime, especially those provisions in the Paris Agreement, which can potentially be applicable to human mobility in the context of climate change. It also examines the existing climate funds which are created to support the efforts of vulnerable developing countries to combat the challenges of climate change. It is argued that in the absence of specific legal protection in international law and international environmental law, linking human mobility with existing financial commitments of the developed countries will allow vulnerable developing countries to find a viable financial solution meeting the needs for the protection of climate-related human mobility. How the linkage can be established and what might be the legal basis and scope of such linkage will be analyzed in this Article. This Article will contribute to the literature by emphasizing the importance of linking climate finance with migration, with attention to adaptation and loss and damage, and will help to outline policy challenges and design of adaptation funding in the future.Item Open Access Does the Criminal Enforcement of Federal Environmental Law Deter Environmental Crime? The Case of The U.S. Clean Air Act(University of Oregon School of Law, 2023-04-28) Ozymy, Joshua; Ozymy, Melissa JarrellThe U.S. EPA and Department of Justice are tasked with the investigation and prosecution of environmental crimes occurring under the U.S. Clean Air Act (CAA). Criminal sanctions are meant to increase the cost of CAA crimes relative to the economic benefit, with the goal of deterring specific individuals and firms from offending and providing general deterrence indirectly via observation of other potential offenders. Prior research has examined sanctioning under the CAA, but little examines the plausibility of the deterrent effect of criminal sanctions. Through content analysis of all 2,588 criminal prosecutions resulting from the EPA’s criminal investigations between 1983 and 2019, we explore the probability of detection and prosecution for all CAA prosecutions. Results show the probability of detection and prosecution to be very low across the regulated community. We conclude by offering three remedies for improving the plausibility of deterrence, including enhancing resources to impose sanctions, developing greater community involvement in enforcement efforts, and raising the profile and salience of criminal enforcement activities.Item Open Access Environmental Taxation and Fertilizers: An Alternative to Recover the Quality of Water Resources in Argentina(University of Oregon School of Law, 2022-05-03) Salassa Boix, Rodolfo R.Eutrophication is a process of water deterioration caused by the excessive and uncontrolled enrichment of nutrients, which conditions its use and generates ecological, health, economic, and social impacts. Considering the consequences of eutrophication for Argentina, which are likely to worsen with COVID-19; that one of its main causes is the excessive use of chemical fertilizers; and that tax measures may be effective to modify human behaviors, the goal is to evaluate the way in which the national tax system can help to restore the quality of the Argentine eutrophic water resources and to develop normative proposals in that direction. To achieve this goal, the Article will first develop the link between tax measures and environmental protection; second, it will study the legal experience of other countries when applying taxes on fertilizers to tackle eutrophication; and, finally, it will analyze the different alternatives within the Argentine tax system to discourage the use of fertilizers. In short, the Article shows that Argentina is not currently taking advantage of environmental taxation to modify agricultural practices involved in the eutrophic process of its water resources.Item Open Access Fissues in the Windustry: Mitigating Fishing Industry Concerns While Promoting Offshore Wind(University of Oregon School of Law, 2022-05-03) Hutchison, LindseyOffshore wind development is the next great frontier for energy production in the United States. The technical potential for offshore wind is more than 2,000 gigawatts, double the nation’s current electricity use and far greater than the potential for wind energy produced on land. Despite this enormous potential, the United States has no commercial-scale offshore wind farms and only two active offshore wind farms at this time, off the coasts of Rhode Island and Virginia. Many concerns accompany the development of offshore wind, including a lack of scientific studies on the effects offshore wind farms have on the fishing industry. The fishing industry has been successfully fighting back on the development of offshore wind farms.To ensure the success of President Biden’s ambitious offshore wind development plan, the Bureau of Ocean Energy Management (BOEM)and state and local governments must adequately consider the fishing industry. This Article explains the piecemeal approach of the many laws that control the development of offshore wind farms and how those laws work together.Item Open Access Environmental Law and Policy to Control Marine Invasive Species: The Potential Role of Environmental Impact Assessment for Enforcing the Law of the Sea in Brazil(University of Oregon School of Law, 2022-05-03) Borges, Julio C. M.As transportation of cargo by ships constitutes ninety-five percent of all international trade, several negative externalities on marine pollution from those activities remain only poorly addressed. One of the most critical challenges of marine pollution has been the problem posed by marine invasive species transported by ships’ ballast water. To tackle this issue, the International Maritime Organization approved an international convention called the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, which entered into force globally on September 9, 2017, and offers technical guidance to vessels on exchanges or performance standards for ballast water treatment. Besides scientific debates on the technical justifications for those solutions, a major difficulty is the actual enforcement of the IMO Convention rules, mostly based on formal checks on paper registries by coastal authorities, keeping the issue of ballast water management largely unsolved.Item Open Access Trash or Treasure Trove? An In-Depth Analysis of the Application of Landfill Gas Technology to Meet Air Force Energy Requirements(University of Oregon School of Law, 2022-05-03) Cane, John MichaelAs we approach 2025, the Department of Defense (DoD) and its service branches are facing pressure from the public and Congress to improve renewable energy generation and consumption on DoD facilities. However, as the DoD’s largest consumer of energy, the Air Force has a long path ahead if it hopes to be able to increase its renewable energy procurement and production to twenty-five percent of total demand by the statutory goal of 2025 imposed under 10 U.S.C. § 2911. Although the Air Force has had limited success implementing geothermal and photovoltaic energy systems on its installations, the AirForce as an institution has not maximized the use of other sources of renewable energy thus far. This Article will analyze the various sources of renewable energy that are presently available and argue that the Air Force should seek to implement landfill gas-based energy systems on its existing installations in order to increase its renewable energy generation.Item Open Access Climate Change Litigation: Determinations of the Supreme Court of Ireland on the National Mitigation Plan(University of Oregon School of Law, 2022-05-03) Van Wyk, SanitaThe case of Friends of the Irish Environment CLG v. the Government of Ireland, Ireland and the Attorney General was initially instituted in 2017 in the High Court of Ireland and finally decided by the Supreme Court of Ireland in 2020 as a matter of general public importance. The Applicant in this matter alleged that Ireland’s National Mitigation Plan violated the country’s Climate Action and Low Carbon Development Act 46 of 2015, the Constitution of Ireland, and the European Convention on Human Rights. The Supreme Court’s decision marks a rare occasion on which the highest court of a country decided that the government has a legal obligation to reform certain environmental policies in order to prevent dangerous climate change. Within the aforementioned framework, this Article explores Ireland’s National Mitigation Plan of 2017, the country’s Climate Action and Low Carbon Development Act of 2015, and the related Amendment Bill of 2020. The main objective of this Article is to examine the validity of Ireland’s National Mitigation Plan of 2017, as framed by the Supreme Court.