Journal of Environmental Law & Litigation : Vol. 23, no. 1 (Spring 2008)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p.191-222 : Climate Change 101: Urgency and Response(University of Oregon School of Law, 2008) Galpern, DanItem Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 125-190 : The Global Warming Crisis: An Analytical Framework to Regional Responses(University of Oregon School of Law, 2008) Olmsted, James L.This Article examines certain selected regional responses to global warming and sets forth some standards by which the effectiveness of such responses might be measured. Part I of the Article begins by examining the causes of global warming and its likely devastating consequences for humanity and all living things. Part II defines and analyzes the nature of regional responses to global warming. In so doing, the Article describes a number of existing regional responses and concludes with a discussion of how the success of such responses might be evaluated. Parts III, IV, and V of the Article describe how regional approaches to the climate crisis might prevent additional global warming, achieve adaptation to global warming, and protect humanity from global warming consequences. The use of the term “adaptation” in Part IV is a term of art that has arisen within the context of responses to global warming. Thus, rather than referring to how humanity or any individual species might adapt to global warming, adaptation in this Article refers to how humanity might act to preserve natural services, such as clean drinking water, clean air, and biodiversity. Part VI of the Article takes a preliminary look at Oregon’s governmental responses to global warming and suggests initial predictions as to how effective such responses might be. In general, the conclusions reached in Part VI regarding the effectiveness of Oregon’s global warming response are not reassuring.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 001-034 : The National Environmental Policy Act in the Urban Environment: Oxymoron or a Useful Tool to Combat the Destruction of Neighborhoods and Urban Sprawl?(University of Oregon School of Law, 2008) Babcock, Hope M.Although it may seem improbable to apply NEPA in an urban environment, the law fits and performs generally well there. In fact, NEPA brings important and unique tools into the urban environment for assessing the impacts of land use changes that might otherwise escape federal review. Obstacles to NEPA’s application to these urban land use changes can be overcome, especially when cities are seen as evolving, complex systems where a change to one neighborhood’s viability can ripple outward, affecting other neighborhoods and sometimes the entire metropolitan area to its outermost boundaries and beyond.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 241-274 : Watering Down Federal Court Jurisdiction: What Role Do Federal Courts Play in Deciding Water Rights?(University of Oregon School of Law, 2008) Wood, AlexanderWithin the context of water rights issues, this Note discusses how federal courts have analyzed Colorado River in deciding whether to exercise jurisdiction or abstain because of “exceptional circumstances.”8 Part I provides a brief overview of judicially created abstention doctrines. Part II discusses the tension among federal reserved water rights, the prior appropriation doctrine, and a state’s authority over allocating its own water. Part II also focuses on the reasons federal agencies may choose to assert water rights claims in federal court and how the McCarran Amendment has limited that choice. Part III describes the Colorado River decision in detail and analyzes how courts have applied and misapplied its doctrine when resolving water rights issues. Part IV examines the doctrine of prior exclusive jurisdiction, a narrow abstention exception focusing on situations where the court that originally adjudicated a water-rights determination, whether state or federal, would have exclusive jurisdiction over all subsequent adjudications concerning the same water body. Part V explains how Colorado River abstention and the prior exclusive jurisdiction doctrine connect in the realm of water rights conflicts. The Note concludes by providing a final assessment of the subject at hand.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 073-124 : Standing & Consensus: Globalism in Massachusetts v. EPA(University of Oregon School of Law, 2008) Long, AndrewThis Article begins, in Part I, with an overview of the emergence of scientific and legal consensus (or near consensus) on the core mechanism underlying climate change and the need for regulatory action. Next, Part II provides historical background on the Supreme Court’s development and application of standing doctrine, illustrating the unique difficulty of reconciling environmental cases with narrow conceptions of jurisdiction. In Part III, this Article discusses the majority opinion in Massachusetts and the dissent by Chief Justice Roberts on standing grounds. Part IV demonstrates the significance of Massachusetts’ embrace of a standing theory based on interconnection in environmental systems, arguing that the analysis should apply equally to public and private plaintiffs in environmental cases. Further, Part V demonstrates the role of scientific consensus in driving the standing analysis and highlights the impact of this acceptance on lower court cases and the potential impact in other areas of environmental regulation. This part concludes by explaining the Court’s broader recognition of U.S. regulation in a global context as a step toward a greater incorporation of global concerns in U.S. environmental litigation.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 223-240 :Al Gore, Oprah, and Silicon Valley: Bringing Main Street and Corporate America into the Environmental Movement(University of Oregon School of Law, 2008) Illig, Robert C.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 1, p. 035-072 : Massachusetts v. EPA: Rescuing Icarus with Environmental Federalism(University of Oregon School of Law, 2008) Biering, Raymond A.; Biering, Brian S.This Article first addresses the ultimate impact of Massachusetts [v. EPA] in the context of the law of climate change in the United States. We analyze the immediate implications of probable regulatory actions at the federal level which are either mandated by Massachusetts or will likely follow as a result of the Supreme Court’s decision. The Article then considers the existing regional and state climate protection efforts evolving independently of federal climate change initiatives. We argue that these “sub-national” initiatives are evolving in a “federal vacuum.”18 As a case study of sub-national climate change initiatives evolving in the federal vacuum, California’s pioneer programs are looked to as an important economy-wide program that may also play a key role in furthering notions of environmental federalism. In light of the evolution of programs like those in California, this Article considers the potential federal and state conflicts that may arise as a result of regional, state, and local climate change initiatives. Finally, the Article considers goals of environmental federalism, wherein preemption is limited and both federal and sub-national coordination of policy is maximized. By viewing the states as laboratories for effective policy, this conception of environmental federalism would further national reductions in greenhouse gases through the encouragement of sub-national efforts.