Journal of Environmental Law & Litigation : Vol. 38 (2023)
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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 “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 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 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 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.