Journal of Environmental Law & Litigation : Vol. 25, no. 2 (Fall 2010)
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A print copy of this title is available through the UO Libraries under the call number: LAW LIB. K 10 .O425
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Browsing Journal of Environmental Law & Litigation : Vol. 25, no. 2 (Fall 2010) by Subject "Environmental law"
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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. 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.