Journal of Environmental Law & Litigation : Vol. 37 (2022)
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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 Animal Agricultural Exceptionalism in the 21st Century(University of Oregon School of Law, 2022-05-03) Regenstreif, ClaireAgriculture has always played a huge role in the American economy and way of life. Many laws today illustrate the singular importance of the agriculture industry and the government’s willingness to create legal carve-outs for agriculture. This Article focuses on two significant examples of agricultural exceptionalism as it applies to animal agriculture specifically. First, it explores state ag-gag laws, which facilitate and protect rampant unsound practices within the animal agriculture industry. Second, this Article explores federal law exempting animal agriculture facilities from greenhouse gas (GHG) reporting requirements that apply to other industries. These two examples illustrate a deeply rooted and pervasive approach to the agriculture industry.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 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.Item Open Access The Paradox of Change in the American West: Global Climate Destruction and the Reallocation of Urban Space and Priorities(University of Oregon School of Law, 2022-05-03) Sullivan, Edward J.; Tarlock, A. DanIn 2019, the authors published an article that surveyed the response of six urban areas in the western United States to global climate destruction (GCD). Our approach was primarily positive. We selected four markers—transportation, land use planning, infrastructure, and water and energy supply—to measure adaptation to the expected adverse impacts of GCD and to suggest best practices in each area. This Article complements the 2019 article by taking a normative approach. It asks the following question: given the magnitude of the expected adverse impacts, what should urban areas (i.e., states, regions, and cities) be doing to mitigate and adapt themselves to GCD? This Article focuses almost exclusively on urban areas in the American West, realizing that GCD will affect that region more severely than many other areas of the country, particularly with respect to the allocation of water resources.Item Open Access Preventing Emissions from Slipping Through the Cracks: How Collaboration on New Technologies to Detect Violations and Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations(University of Oregon School of Law, 2022-05-03) Caballero, KathrynThe link between air pollution and poor public health is well known and has been further documented during the COVID-19 pandemic,but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud.This Article recommends that all stakeholders work together to propose new detection methods and remedial technologies that EPA may use to collect evidence for enforcement actions and to resolve noncompliance.