Journal of Environmental Law & Litigation : Vol. 25, no. 2 (Fall 2010)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 303-384 : The Right of Nonuse(University of Oregon School of Law, 2010) Laitos, Jan G.; Keske, Catherine M. H.Humankind is on a path of inefficient and unsustainable resource use and exploitation. As a result, the earth and its resources are now facing irreversible disruptions that have the potential to affect multiple generations. These disastrous global effects are not only caused by excessive resource use. Rather, accelerated human use of resources also has the devastating consequence of impairing the purely ecocentric benefits that follow when humans do not use resources. When resources are left alone by humans, when they are not exploited or developed, their nonuse is beneficial for the entire biosphere, of which humans are only a part. In this Article, we show how the destruction of this critical nonuse component of natural resources is creating many of the alarming environmental changes that are so disturbing to the planet. Then, through a series of analytical arguments founded in economic game theory, we illustrate that sustainable resource use can only be achieved if legal rights are bestowed upon not just human resource users, or humans who benefit themselves from resource nonuse, but also upon the resource itself. We define this legal right as the resource’s “right of nonuse.” Establishing a “right of nonuse” effectively privatizes a resource, facilitating a cooperative game that is between three kinds of players: human resource users, humans who selfishly prefer resource nonuse, and the resource itself. An analysis under this three-player game, which at last includes the natural resource itself as a critical actor, provides a framework for moving toward an efficient, sustainable path of resource conservation.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 511-558 : Polluters as Perpetrators of Person Crimes: Charging Homicide, Assault, and Reckless Endangerment in the Face of Environmental Crime(University of Oregon School of Law, 2010) Gibson, SarahThis Article presents the theory that when victims of environmental crimes sustain serious bodily injury or death, state-level prosecutors may often charge the perpetrator with a traditional person crime alongside, or instead of, violations of environmental statutes. In order to show the efficacy of such a course of action, it is necessary to look at fact patterns of pollution that may cause serious bodily injury or death, and determine how state environmental and person crime statutes can deal with defendants in such situations. Assuming prosecutors are able to charge polluters with person crimes under their state laws, there are also some practical and jurisprudential issues to consider when deciding how to charge the crime. Part I of the Article suggests that certain serious bodily injuries or death can be caused by chronic, catastrophic, or unregulated polluting actions. Part II discusses the act and mental state elements of the various environmental crimes in New York, Oregon, and Florida that can deal with these serious cases of pollution, and Part III does the same for traditional person crimes. Part IV presents the issues of statutory analysis and discretion involved when a prosecutor determines whether to charge a polluter whose actions cause serious bodily injury or death with an environmental crime, a person crime, or both.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 559-582 : NEPA and Climate Change: Beneficial Applications and Practical Tensions(University of Oregon School of Law, 2010) Kraft, Aaron J.This Comment explores the benefits and problems of requiring agencies to consider climate change in their NEPA analyses. Part I presents an overview of NEPA, including statutory language, agency duties, and regulations that detail specific agency requirements. It then addresses the prospect of challenging federal action when agencies fail to consider climate change. Finally, it discusses the role of NEPA in agency decision making, relevant case law, and the issue of standing in NEPA-based climate change litigation. Part II discusses the impact of probable congressional action on climate change and how that may affect agencies’ NEPA responsibilities. It discusses how courts should construe NEPA in the event Congress enacts climate legislation, and considers the role of agency discretion in the face of carbon regulation. Part III considers the increased demand for renewable energy in a carbon-regulated world and whether federal agencies may use climate change to justify development on wild public lands through their required NEPA analysis. This part addresses agency discretion to allow public land development and highlights the need for comprehensive policies that recognize the value of unaltered ecosystems. Specifically, it considers agency action in the context of National Wildlife Refuges and unprotected, wilderness-quality BLM-managed lands. Finally, Part IV concludes that federal agencies must consider climate change in their decisions. It argues that citizens should challenge agencies for failing to address climate considerations. But citizens must not allow the tremendous threat of climate change to justify irresponsible energy development, which itself would destroy natural places and invaluable ecosystem services.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 249-302 : How Judicial Hostility Toward Environmental Claims and Intimidation Tactics by Lawyers Have Formed the Perfect Storm Against Environmental Clinics: What’s the Big Deal About Students and Chickens Anyway?(University of Oregon School of Law, 2010) Babcock, Hope M.What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim? This Article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 385-458 : A Litigious Proposal: A Citizen’s Duty to Challenge Climate Change, Lessons from Recent Federal Standing Analysis, and Possible State-Level Remedies Private Citizens Can Pursue(University of Oregon School of Law, 2010) Brown, ChristopherThis Article examines climate change as an ethical and moral issue from the perspective of an American citizen, and considers concrete legal remedies she might pursue.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 459-510 : Wildlife Jurisprudence(University of Oregon School of Law, 2010) Favre, DavidHistorically, wildlife have not had independent standing in the legal system. Rather, the legal system has presumed that wildlife are available for use and consumption by humans, thus their lower legal status as “things.” But as this Article explores, human views toward wildlife have recently been evolving. It is time to take full measure of where wildlife presently stand within the realm of jurisprudence, as well as what is possible for the future. As humanity comes to accept that we share this earth with other species as part of a global community, and that an ethical duty exists toward wildlife, the necessity of change within jurisprudence becomes stronger. The historical human attitude of unlimited consumption of wildlife, or even the more benign attitude of live and let live—do no harm—is unsupportable in a world of seven billion human beings who possess an ever-increasing appetite for the consumption of material goods. The ecosystems of the Earth are being destroyed at a historically alarming rate. Assuming a level of ethical duty toward wildlife, it is clear that to fulfill our obligations toward wildlife, humans must adopt an agenda that goes beyond a passive attempt to save existing ecosystems. This duty supports an obligation to both protect and actively restore the ecosystems where wildlife live. The realization of these goals should be accomplished by allowing wildlife an enhanced presence in the legal system and by making their interests more visible when humans make decisions impacting wildlife and their habitat. The enhanced presence of wildlife on the stage of jurisprudence will give greater weight to their interests in the everyday balancing of interests that is the bread and butter of the legal process.